Forms of Compensation for Harm in Public International Law

Belozertsev Sergei Mikhailovich ORCID: 0000-0003-2143-9170 PhD in History Associate Professor of the Department of State and Legal Disciplines East Siberian Institute of the Ministry of Internal Affairs of the Russian Federation 664074, Russia, Irkutsk region, Irkutsk, Lermontov str., 110 zuyn03@mail.ru Other publications by this author

International law, from the moment of the emergence of its primary institutions to the present, is one of the most dynamic areas of both law itself and interstate relations in general. The rapid dynamics of changes that are constantly taking place in the international legal sphere is mainly related to the need to ensure its proper functioning in conditions of significant differentiation of national legal systems of different states ^[1].

The development of international legal institutions is aimed at creating universal norms of a consensual nature that can effectively regulate legal relations between subjects, avoiding the occurrence of legal conflicts, as well as ensure the implementation of these norms on the territory of the subjects.

The current political situation, the deep crisis of all institutions of international relations, is characterized by a large-scale escalation of interstate conflicts simultaneously with the obvious decline in the importance of public international law as a means of their settlement and prevention.

More and more subjects of international law, taking advantage of the dispositivity and consensual nature of its norms, abuse them in their own interests, often seriously infringing on the interests of their international partners.

In this regard, the study of the problems of international legal responsibility, as one of the basic elements of international legal regulation, is of particular importance.

The institution of international legal responsibility is one of the earliest forms of interstate relations that arose long before the formation of public international law as a legal system.

International legal liability is compensation for harm by a subject of international law to another subject who has suffered from his unlawful actions. At the same time, compensation for harm is of key importance, as the most effective sanction for illegal actions, and restoration of the violated rights and interests of the victim.

The first normative consolidation of the norms on the international legal responsibility of States was found in the Hague Conventions. The 1907 Convention on the Laws and Customs of Land Warfare, in particular, established: "A belligerent who violates the provisions of the said Provision will have to pay damages if there is a reason for that. It will be responsible for all actions committed by persons who are part of its military forces"^[2]. The inter-American Conferences of 1889-1890 and 1902 were also devoted to the problems of State responsibility .

Many issues of responsibility were fixed at the regional level, and even more often at the level of bilateral treaties between States, a unified practice of implementing responsibility was not formed.

The most striking example of the application of the norms of international legal responsibility is the Peace of Versailles in 1919, in which Germany was held accountable for the harm caused to European countries by military actions during the First World War.

In addition to the establishment of strict restrictions on the German military-industrial complex, territorial concessions, as well as the rejection of colonial administrations in Asia and Africa, one of the key measures of international legal responsibility was the imposition of the obligation to pay reparations in the amount of 289 million gold marks. The debt on these reparations, by the way, was repaid by Germany only on October 3, 2010, when the last tranche of 70 million euros was paid.

Currently, the forms of compensation for harm in the international legal sphere have been significantly modernized in order to comply with current international legal trends, as well as in order to ensure compensation for the harm caused.

In public international law , the following forms of compensation for harm are distinguished:

1. Restitution;

2. Compensation;

3. Satisfaction.

From the point of view of the enforcement of these forms of compensation for harm, it should be noted that restitution and compensation are used most often, whereas satisfaction is rather auxiliary in nature, and is used in situations where it is most preferable.

Restitution is the restoration of the situation that existed before the commission of unlawful acts by a subject of international law. As a rule, restitution is applied to illegally seized and exported cultural property during hostilities, as well as other property of particular value to the state ^[3].

The problems of restitution of property exported to the USSR during the Second World War are still among the most controversial, due to the lack of consensus between the subjects of disputed legal relations, as well as the lack of a single mechanism for resolving such disputes.

A subspecies of restitution is substitution, which is used in the course of resolving issues about the need for compensation by Russia for the export of cultural property. Since substitution is a replacement of illegally seized or destroyed property, the concept of applying this form of compensation for harm seems to the opposite subjects to be the most reasonable and effective.

In In particular, the question is often raised about the use of compensatory restitution, which is a kind of substitution and involves the replacement of illegally seized property with items of the same kind and with similar characteristics.

Compensation involves compensation for the damage caused in monetary or other value equivalent, which is often used as a form of international legal liability ^[4].

Despite the fact that compensation is an independent form of compensation for harm, it is often used in conjunction with restitution, since restitution, by itself, is not always able to fully and adequately compensate the injured party for the damage caused.

The damage to be compensated by way of compensation may be inflicted not only to a State or another subject of international law, but also to individuals and legal entities on whose behalf a particular State will apply for compensation for damage.

The amount of compensation can be determined in international judicial bodies, in arbitration or in bilateral negotiations: for example, the United States and Iran came to an agreement to pay compensation for the death of an Iranian aircraft, its crew and passengers in 1988, terminating proceedings in the International Court of Justice of the United Nations ^[4].

By way of compensation, in addition to the damage directly caused, compensation for lost profits is also possible. However, based on the materials of international judicial and arbitration practice, recovery of lost profits by way of compensation is a poorly common situation.

Since there is no procedure for calculating the amount of lost profits generally accepted and established by the norms of international law, this may have unfavorable prospects for the recoverer, primarily due to the impossibility of objectively calculating the amount of claims.

Compensation may also include a percentage of the amount in which the damage is estimated. Examples of this are present in international practice, in particular, having considered the case of the Saiga vessel detained by Guinea, the UN International Tribunal for the Law of the Sea awarded the State of Saint Vincent and the Grenadines interest for various categories of damages.

Satisfaction can be attributed to a special form of international legal responsibility, since it is not expressed in any material equivalent.

In public international law, satisfaction is understood as compensation for moral damage caused to a State by an unlawful act. As an example of damage to be compensated by way of satisfaction, one can single out the violation of the sovereignty and territorial integrity of the State, an attack on air and sea vessels, insulting state symbols, flags, as well as improper treatment of heads of State and diplomatic representatives.

Satisfaction, as well as compensation, as noted, can be both an independent form of compensation for harm and an auxiliary one. As a rule, it is expressed in an official apology, in an expression of regret, as well as in a public recognition of the harm.

Satisfaction, as an independent form of compensation for harm, is more often used for situations involving purely moral damage, namely improper treatment and insulting the state, as well as, in some cases, when attacking citizens of the state, as well as destroying and damaging its property.

For example, in 2015, a Su-24 aircraft of the Russian Aerospace Forces was shot down in the airspace of Syria by Turkish air defense means, performing a service and combat mission. The situation caused serious concern and condemnation of the Russian side, as a result of which, some time later, the Turkish Foreign Ministry Cavusoglu issued an official apology to Moscow.

A similar situation occurred in the summer of 2020, when a Russian Mi-24 helicopter was shot down by the Azerbaijani Air Force during the Karabakh conflict. The Azerbaijani side also offered an official apology for the incident.

However, in the case of material damage to the State, satisfaction is most often used as an auxiliary form of international legal liability in conjunction with restitution and compensation ^[5].

In addition to satisfaction, there are other non-property forms of compensation for harm in public international law. At the same time, despite their less widespread distribution, in terms of their reputational effect, their effectiveness is in no way inferior to their property analogues ^[8].

Among the non -property forms of compensation for harm , it is necessary to distinguish:

1. Retorsions;

2. Reprisals.

The essence of these forms of compensation for harm lies in the coercive actions of the affected State against the person who caused the damage.

Retorsions are legitimate actions of a subject of international legal relations taken in response to any unfriendly actions on the part of a particular state, the purpose of which is to resolve the differences that have arisen by lawful actions, or to create conditions for solving such problems ^[6].

The main difficulty of using retorsions is that their nature must be proportionate to the damage caused, which, in the conditions of the technical impossibility of an objective calculation of damage at the international level, creates additional difficulties in their application.

Reprisals, in turn, are lawful acts of a coercive nature committed by the State in response to the unlawful actions of the harm-doer. In this case, an important difference between reprisals and retorsions is that the unlawful nature of the committed actions must be regulated in one way or another, both within the framework of national and international law ^[9].

The purpose of reprisals, unlike retorsions, is not to settle the disagreements that have arisen, but, firstly, to refuse illegal actions, and, secondly, to directly compensate for the damage caused by such actions.

Examples include the seizure and confiscation of State property, its assets, or the detention of a fishing vessel for illegal fishing.

Recourse to reprisals will be lawful only if the offending State refuses to compensate for the damage or to comply with another decision taken as a result of the application of a peaceful procedure. Reprisals must be proportionate to the offense and cease from the moment of "restoration of the original situation." Based on the UN Charter, the injured State has no right to resort to reprisals with the use of armed force: to seize, block or bombard the territory of another state.

Retorsions and reprisals can be both political and economic in nature. As another form of economic sanctions, an example of an embargo can be given, which means a prohibition (or restriction) on the import into or export from a country of certain goods, on the transfer of scientific and technical information, on certain types of commercial, trade and economic activities ^[10].

The institute of international legal responsibility is very extensive, we have considered only some of its part concerning the forms of international legal responsibility. Forms of international legal responsibility can be of a property and non-property nature. The practice of their application illustrates the possibility (and sometimes the need) combinations of various forms of international legal liability in compensation for damage caused. Assessing the effectiveness of property and non-property forms of international legal liability, it should be noted that sometimes non-property forms of liability are the most effective in terms of influencing the reputation of the harm-doer, due to their publicity. The institution of international legal responsibility as a form of interstate relations arose long before the formation of public international law, the forms of compensation for harm were consolidated much later, however, the practice of their application can be considered established. At the same time, in the conditions of rapid changes in the international situation, which has become particularly acute in recent years, the study of forms of international legal responsibility as one of the main ways to resolve interstate disputes and prevent conflicts is particularly relevant.