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.. . Rights or interests of an individual the violation of which rights medical expenses, loss of earnings, 98 pain and suffer-
causes damage are always in a different plane to rights belonging to a ing, 99 and mental anguish. 100 Damages may be reduced
State, which rights may also be infringed by the same act. The damage where the claimant has contributed to the injury. 101 Prob-
1 suffered by an individual is never therefore identid in kind with that
which will be suffered by a State; it canonly afford a convenient scale for lems sometimes arise in attributing responsibility to the
the calculation of the reparation due to the State. delinquent state for the damages suffered by an individual
claimant. A state is ordinarily responsible only for the
In appropriate circumstances, reparation might also in-
damages caused by its delinquency. There the delinquency
clude additional monetary damages for the moral injury to
if a failure to apprehend and punish a private person who
the claimant state. 93 The entire reparation is paid to the
has injured an alien or his property, the offending state has
claimant state and disbursed to its national claimants at its
not damaged the claimant except is so far as the state's
discretion. 94 In the Chonow Factory case, the Permanent
delinquency prevents the claimant from bringing a
Court of International Justice also indicated that:
damage action against the responsible person. If, as is
The essential principle contained in the actual notion of an illegal
act-a principle which seems to be established by international practice often the case, an action against the private wrongdoer
would be fruitless, the delinquent state has not caused any
and in particular by the decisions of arbitral tribunals-is that reparatibn
must, as far as possible, wipe out all the consequences of the illegal act damage to the claimant. International tribunals have
and reestablish the situation which would, in all probability, have existed generally avoided such a result by finding that the delin-
if that act had not been committed. Restitution in kind, or, if this is not quent state's lack of diligence in apprehending or punish-
possible, payment of a sum corresponding to the value which a restitu- ing the private wrongdoer amounted to condoning the in-
tion in kind would bear; the award, if need be, of damages for loss sus-
tained which would not be covered by restitution in kind or payment in jury and imposed derivative liability on the state, 102 or by
place of it--such are the principles which should serve to determine the finding that the claimant suffered "grief," "mistrust and
amount of compensation due for an act contrary to international law. 95 lack of safety" resulting from the state's failure to ap-
d. In the majority of cases, restitution is impossible prehend or punish the wrongdoer. Under either theory,
because of changed circumstances, and the reparation damages have usually been measured by the loss suffered
must consist of monetary compensation. The Permanent by the individual claimant rather than by the gravity of the
Court also distinguished between the case in which the state's delinquency. 103
payment of "fair compensation" can render lawful under 7-23. Succession to Obligations and International
international law an expropriation or other taking of prop- Responsibility. a. Although the problem of state succes-
erty and the case in which the taking is wrongful under in- sion arises in other contexts, especially in connection with
ternational law, even if such compensation if paid. 96 In determining whether a successor state succeeds to rights
the former case, the Court indicated that the measure of and duties embodied in international agreements, it also
compensation was the value of the property at the time of arises with some frequency in the context of state respon-
the taking, plus interest to the date of payment. The sibility. Particularly significant is the problem of the extent
Chonow Factory case itself involved the latter, since the to which a successor state is bound by public debts and by
taking there was in violation of a specific treaty prohibition other contractual obligations of the predecessor regime
against expropriation (even if compensation were paid). and responsible for international wrongs of that regime.
The Court stated that in this situation the measure of With respect generally to the question of succession to the
damages was the value that the undertaking would have internal legal system of a territory, a distinction has tradi-
had at the time of indedtcation had the expropriation tionally been drawn between public law and private law.
not taken place, plus any losses sustained as a result of the Public law, broadly, is that body of laws promulgated by
expropriation. 97 Thus, the court allowed damages for loss
of profits realized between the seizure and the indem- 98. George Henry Clapham Claim (Great Britain v. Mexico) 5
nification. U.N.R.I.A.A. 201, 203-04 (1931).
e. Personal injuries. In claims for personal injuries the 99. 1 M. Whiteman, Damages, supra, note 94 at 588, 89 (1943).
measure of reparation for the injury to the individual is the 100. Opinion in the Lusitania Case (United States v. Germany),
loss to the individual claimant. Damages have included [1923-251 Administrative Decisions and Opinions 17, 21-22, 7
U.N.R.I.A.A. 32, 36-37 (1923).
101. Lillie S. Kling Claim (United States v. Mexico), General
93. For a discussion of determining the measure of reparations, see Claims Commission, [1930-31) Opinions of Comqisioners 36, 49-50,
the opinions in the Laura M.B. Janes Claim (United States v. Mexico), 4 U.N.R.I.A.A. 575, 585 (1930).
[I9271 Opinions of Commissioners 108, 4 U.N.R.I.A.A. 82. '02. Paggioli Case (Italy v. Venezuela), 10 U.N.R.I.A.A. 669, 689
94. On the legal status of reparation received by the United States, (1903); Laura B. Janes Claim (United States v. Mexico), General
see Wiam v. Hksd, 140 U.S. 529 (1891); Opinion of J. Reuben Clark, Claims Commission, 119271 Opinions of Commissioners 108, 120, 4
Solicitor for the Department of State, 7 Am. J. Int'l L. 382 (1913). See U.N.R.I.A.A. 82, 90 (separate opinion of Commissioner Nielsen).
generally 1 M. Whiteman, Damages in International Law 2035-59 '03. 1 M. Whiteman, Damages, supra. note 94 at 39; Brierly, The
(1943) [hereinafter cited as 1 M. Whiteman, Damages]; 5 G. Hack- Theoty of Implied State Complicity in International Claims, [I9281 Brit.
worth, supra, note 7 at 763-901. Y.B.Int'l L. 42; M. Freeman, supra, note 22 at 367-69. But see Wiam
95. Chorzow Factory Case, supra, note 69 at 47. T. Way Claim (United States v. Mexico), supra, note 30; the "I'm
96. Id. at 46. Alone" Case (Canada v. United States), supra, note 90; 1 M. White-
97. Id. at 48. man, Damages, note 94 at 721-44, 788.