The choice between restitution and compensation

Abstract

The recent case before the International Court of Justice, Paraguay v. USA (Provisional Measures), highlights dramatically the fundamental uncertainties as to the avail- ability of restitution in international law, and should serve as a warning to the International Law Commission not to be unduly dogmatic or over-ambitious in its quest for universal rules in its Draft Articles on the choice between restitution and compensation. The caution of the International Court of Justice in this and other cases provides a marked contrast to the ILC's 1996 Draft Articles. The current Draft Articles take a firm view on the primacy of restitution; this inevitably entails the need for limits and exceptions to the award of restitution. The ILC has run into difficulties in trying to provide for these while maintaining its distinction between primary and secondary rules. Moreover, if the exceptions are too wide they will offer loopholes to the wrongdoing states and undermine the primacy the ILC wants to assert; if the limits are too narrow they will be unrealistic. The reactions of states to the Draft Articles shows the need for the ILC to be flexible in its approach. The recent case before the International Court of Justice, Paraguay v. USA (Provisional Measures), 1 highlights dramatically the fundamental uncertainties regarding the availability of restitution in international law. It should serve as a warning to the International Law Commission not to be unduly dogmatic or overambitious in its quest for universal rules in its draft articles on the choice between restitution and compensation. The caution of the International Court of Justice in this and other cases provides a marked contrast to the ILC's 1996 draft articles. 2 In Paraguay v. USA, Paraguay sought restitution. Breard, a Paraguayan national, had been convicted of murder in the USA and was due to be executed. Paraguay argued that the USA had violated its obligations under the 1963 Vienna Convention on Consular Relations in not informing Breard of his right of access to the Paraguayan Consul and in not notifying the consulate of the detention of one of its nationals. Paraguay argued that by violating these obligations the USA had prevented it from