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Published online by Cambridge University Press: 27 February 2017
Professor Matheson, a member of ASIL and the AJIL Board of Editors, is on the international law faculty of the George Washington University Law School. He was formerly Acting Legal Adviser at the U.S. State Department and a member of the United Nations International Law Commission.
* This text was reproduced and reformatted from the text available at the Permanent Court of Arbitration official website (visited January 7, 2010) http://www.pca-cpa.org/upload/files/ER%20Final%20Damages%20Award%20complete.pdf.
* This text was reproduced and reformatted from the text available at the Permanent Court of Arbitration official website (visited January 7, 2010) http://www.pca-cpa.org/upload/files/ET%20Final%20Damages%20Award%20complete.pdf.
1 Agreement on Cessation of Hostilities between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, Eth.-Erit., June 18, 2000, 2138 U.N.T.S. 86, available at http://untreaty.un.org/unts/144078_158780/17/8/8238.
2 Agreement between the Governments of the State of Eritrea and the Federal Democratic Republic of Ethiopia, Eth.-Erit., Dec. 12, 2000, available at http://www.pca-cpa.org/showpage.asp?pag_id=1151 [hereinafterDecemberAgreement].
3 The Boundary Commission promptly completed its work on delimiting the boundary, conducting hearings in December 2001 and issuing a decision enumerating coordinates for the entire boundary in April 2002. See Decision Regarding the Delimitation of the Border between The State of Eritrea and The Federal Democratic Republic of Ethiopia, (Erit.-Eth.), 41 I.L.M. 1057 (2002).
4 See December Agreement, supra note 2.
5 See Partial Award: Prisoners of War - Ethiopia’s Claim 4 (Eth.- Erit), 42 I.L.M. 1056 (2003), available at http://www.pcacpa.org/upload/files/ET04.pdf [hereinafter Prisoners of War Award: Ethiopia’s Claim]; Partial Award: Prisoners of War – Eritrea’s Claim 17 (Eth.-Erit.), 42 I.L.M. 1083 (2003), available at http://www.pca-cpa.org/upload/files/ER17.pdf [here Award: Central Front - Eritrea’s Claims 2, 4, 6, 7, 8&22 (Eth.– Erit.), 43 I.L.M. 1249 (2004), available at http://www.pcacpa.org/upload/files/Eritrea%20Central%20Front%20award.pdf [hereinafter Central Front Award : Eritrea’s Claims]; Partial Award: Central Point – Ethiopia’s Claim 2 (Eth.-Erit.), 43 I.L.M. 1275 (2004), available at http://www.pca-cpa.org/upload/files/ET%20Partial%20Award%281%29.pdf; Partial Award: Civilians Claims - Eritrea’s Claims 15, 16, 23 & 27-32 (Eth.–Erit), 44 I.L.M. 601 (2004), available at http://www.pca-cpa.org/upload/files/ER%20Partial%20Award%20Dec%2004.pdf [hereinafter Civilian Claims Award: Eritrea’s Claim] Partial Award: Civilians Claims, Ethiopia’s Claim 5 (Eth.-Erit.), 44 I.L.M. 630 (2004), available at http://www.pca-cpa.org/upload/files/ET%20Partial%20Award%20Dec%2004.pdf [hereinafter Civilians Claims: Ethiopia’s Claim]; Partial Award: Western Front, Aerial Bombardment and Related Claims - Eritrea’s Claims 1, 3, 5, 9-13, 14, 21, 25 & 26 (Eth.–Erit.), 45 I.L.M. 396 (2006), available at http://www.pca-cpa.org/upload/files/FINAL%20ER%20FRONT%20CLAIMS.pdf [hereinafter Western Front Award: Eritrea’s Claims]; Partial Award: Jus Ad Bellum - Ethiopia’s Claims 1-8 (Eth.-Erit.), 45 I.L.M. 430 (2006), available at http://www.pcacpa.org/upload/files/FINAL%20ET%20JAB.pdf [hereinafter Jus Ad Bellum: Ethiopia’s Claims]; Partial Award: Diplomatic Claim - Ethiopia’s Claim 8, 45 I.L.M. 621 (2006), available at http://www.pca-cpa.org/upload/files/FINAL%20ET%20DIP%20AWARD.pdf; Final Award: Pensions - Eritrea’s Claims 15, 19, 23 (Eth.-Erit.), 45 I.L.M. 633 (2006), available at http://www.pca-cpa.org/upload/files/FINAL%20ER%20PENSIONS.pdf.
6 See Jus ad Bellum - Ethiopia’s Claims, supra note 5.
7 Partial Award: Western and Eastern Fronts - Ethiopia’s Claims 1 & 3 (Eth.-Erit.), Oxford Reports Int’l L. 357 (2005), available at http://www.pca-cpa.org/upload/files/FINAL%20ET%20FRONT%20CLAIMS(1).pdf.
8 See Prisoners of War Award: Ethiopia’s Claim, supra note 5.
9 See Civilian Claims Award: Ethiopia’s Claim, supra note 5.
10 See Prisoners of War Award: Eritrea’s Claim, supra note 5.
11 See Central Front Award: Eritrea’s Claims, supra 5; see also Western Front Award: Eritrea’s Claims, supra note 5.
12 See Civilian Claims Award: Eritrea’s Claim, supra note 5.
13 For more detailed commentary on the work of the Commission, see Christine Gray, The Eritrea/Ethiopia Claims Commission Oversteps Its Boundaries: A Partial Award? 17 Eur. J. Int’l L. 699 (2006); Won Kidane, Civil Liability for Violations of International Humanitarian Law: The Jurisprudence of the Eritrea-Ethiopia Claims Commission in The Hague, 25 Wis. Int’l L.J. 23 (2007); J. Romesh Weeramantry, International Decisions, 101 Am. J. Int’l L. 616 (2007).
14 For a more extensive description of the awards, see Michael J. Matheson, Eritrea-Ethiopia Claims Commission: Damage Awards, ASIL Insights (2009), available at http://www.asil.org/insights090904.cfm.
1 Various administrative matters, including the final disposition of the Commission Archive, as well as any post-Award matters potentially arising under the Commission’s Rules of Procedure, remain to be completed.
2 See Eritrea-Ethiopia Claims Commission Decision No. 4 (‘‘Evidence’’) (July 24, 2001) (‘‘The Parties are reminded that under Article 5(13) of the Agreement of December 12, 2000, the Commission is bound to apply the relevant rules of international law and cannot make decisions ex aequo et bono. The rules that the Commission must apply include those relating to the need for evidence to prove or disprove disputed facts.’’)
3 Manley O., Hudson, International Tribunals p. 197 (1944).Google Scholar
4 The Commission’s previous work is described in its Awards, available on the website of the Permanent Court of Arbitration, http://www.pca-cpa.org. Throughout this process, the Secretary-General and staff of the Permanent Court of Arbitration have provided highly professional and efficient support for the Commission, which records its sincere appreciation for all that has been done on its behalf. The Commission expresses particular thanks to Ms. Belinda Macmahon, who has served as its Registrar since 2004 with unstinting efficiency and professionalism.
5 All of the costs of these proceedings, including the costs of both Parties’ legal teams, have been borne by the Parties themselves. The Commission has sought to limit its own costs by minimizing travel and PCA support, by making extensive use of the Internet, and through other measures. Nevertheless, it is mindful that the proceedings have been a financial burden for both Parties.
6 See Human Development Report 2007/2008 (United Nations Development Programme), available at http://www.undp.org. The Report includes an index of human development trends (‘‘Human Development Index’’) in all countries. The ‘‘indicators’’ measure, for example, ‘‘public spending,’’ ‘‘commitments’’ to realize the ‘‘right to education,’’ or improvements in the ‘‘standard of living measured by the PPP [purchasing power parity].’’ Each country is ranked in accordance with a process that combines these and other indices.
7 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. p. 3.
8 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. p. 171.
9 United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States Parties Obligations under Art. 2(1) of the International Covenant on Economic, Social and Cultural Rights [ICESCR], U.N. Doc. E/1991/23, Annex III, at p. 86 (1991). A number of subsequent General Comments spell out the obligations of States Parties to achieve ‘‘progressive realization’’ of the particular rights guaranteed by other articles of the ICESCR, such as ‘‘the right to education.’’ All of these can be found in The Compilation of General Comments Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 9 (2006). Examples of these General Comments include General Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (ICESCR, art. 3); General Comment No. 15, The right to water; General Comment No. 14, The right to the highest standard of health (ICESCR, art. 12); and General Comment No. 13, The right to education (ICESCR, art. 13). See also Magdalena Sepulveda, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights (2003); Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Audrey Chapman & Sage Russell eds., 2002); Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective On Its Development (Ian Brownlie ed., 1995); Judith V. Welling, International Indicators and Economic, Social, and Cultural Rights, 30(4) Hum. Rts. Q. p. 933 (2008). The Secretary General urged all UN development agencies to adopt a common ‘‘Human Rights Based Approach’’ to their development missions and, working together, common rights-focused country plans. See Strengthening of the United Nations: An Agenda for Further Change, Report of the Secretary-General, U.N. GAOR, 57th Sess., U.N. Doc. A/57/387 (2002).
10 Eritrea-Ethiopia Claims Commission Decision No. 7 (‘‘Guidance Regarding Jus ad Bellum Liability’’) (July 27, 2007).
11 Id., pp. 6-7.
12 See William W. Bishop, General Course of Public International Law, 1965, in II Recueil des Cours, Tome 115 p. 403 (1965); Richard Falk, Reparations, International Law, and Global Justice, in The Handbook of Reparations p. 492 (Pablo de Greiff ed., 2006); Christian Tomuschat, Reparations in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law, in Promoting Justice, Human Rights and Conflict Resolution Through International Law/L aPromotion de la Justice, des droits de l’homme et du reglement des conflits par le droit international, Liber Amicorum Lucius Caflisch p. 569, at pp. 581 et seq. (Marcelo G. Kohen ed., 2007).
13 Factory at Chorzo´w, Merits, 1928 P.C.I.J. (Ser. A.) No. 17, p. 47.
14 Under Article 5(9) of the Agreement, ‘‘[i]n appropriate cases, each party may file claims on behalf of persons of Ethiopian or Eritrean origin who may not be its nationals. Such claims shall be considered by the Commission on the same basis as claims submitted on behalf of that party’s nationals.’’ This unusual provision was not utilized. While Eritrea sought to bring claims predicated upon injuries to Ethiopian nationals, it did so on behalf of the State of Eritrea, and not on behalf of the injured individuals.
15 Eritrea-Ethiopia Claims Commission Decision No. 8 (‘‘Relief to War Victims’’) (July 27, 2007).
16 See, e.g., The Laguna del Desierto Arbitration (Arg./Chile), (Award), 113 I.L.R. 1, 194, at para. 70 (1995) (‘‘International law provides rules for interpretation of any legal instrument, whether it be a treaty, a unilateral act, an arbitral award or a resolution of an international organization. They include: the natural and ordinary meaning of the words used; their context; and their effet util.’’).
17 As noted in a recent judgment of the International Court of Justice, ‘‘if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given.’’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. p. 48, at para. 125 (Feb. 26). See also Shabtai Rosenne, III The Law and Practice of the International Court 1920–2005 p. 1603 (4th ed. 2006) (discussing the importance attached to written and oral pleadings in ascertaining the scope of res judicata).
18 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 2007 I.C.J. pp. 76-77, paras. 209-210 (‘‘The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive . . . . In respect of the Applicant’s claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation.’’).
19 Mark, Kantor, Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence pp. 72-73 (2008).Google Scholar
20 See Chittharanjan, Amerasinghe, Evidence in International Litigation pp. 241-242 (2005).Google Scholar
21 See Chaplin v. Hicks [1911] 2 K.B. 786, 972 C.A. (where precision or accuracy is not possible in assessing contract damages, ‘‘the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages for his breach . . . .’’).
22 See UNIDROIT Principles of International Commercial Contracts, available at www.unidroit.org, art. 7.4.3, para. (3) (‘‘Where the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court.’’).
23 See Jacomijn J. van Haersolte-van Hof, Innovations to Speed Mass Claims, New Standards of Proof, in Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges p. 13 (Permanent Court of Arbitration ed., 2006).
24 Decision No. 7, supra note 10, at paras. 13-14.
25 See Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. p. 277, 1 Bevans p. 631, art. 3 (‘‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation’’); Protocol Additional to the 1949 Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. p. 3, art. 91 (‘‘A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation’’) [hereinafter Protocol I].
26 Any reference in this Award to amounts claimed in U.S. dollars, where the underlying claim involves amounts denominated in nakfa or birr, is solely for purposes of illustration. Except where otherwise stated, conversions of claimed amounts into U.S. dollars are those provided by a Party, and do not reflect any judgment by the Commission regarding the appropriateness of the exchange rate employed or related matters.
27 As provided in Ethiopia’s Reply Brief on Technical Issues (Aug. 15, 2008), Annex A(from World Bank, World Development Indicators Online).
28 Eritrea-Ethiopia Claims Commission Decision No. 2 (‘‘Claims Categories, Forms and Procedures’’) and Decision No. 5. (‘‘Multiple Claims in the Mass Claims Process, Fixed-Sum Compensation at the $500 and $1500 Levels, Multiplier for Household Claims’’) (both dated August 2001).
29 Transcript of the Eritrea-Ethiopia Claims Commission Hearings of April 2007, Peace Palace, The Hague, at p. 862 (Mr. Picard) (April 25, 2007).
30 Memorial of the State of Eritrea, Damages (Phase One) filed on November 15, 2006 [hereinafter ER Damages Group One Memorial], Spreadsheet Annex.
31 In the course of the Group Number One damages hearings, Eritrea reduced its total damages claims by approximately 450 million nakfa after withdrawing certain evidentiary documents and confirming that others were missing from the record. The reductions affected Eritrea’s claims regarding the Barentu Zoba and Sub-Zoba Ministry of Agriculture, Barentu Town Administration Building, Barentu Zoba Gash-Barka Ministry of Health Offices and Warehouse, Barentu Hospital, Teseney Ministry of Agriculture, Tokombia Ministry of Agriculture and Molki Sub-Zoba schools.
32 The Central Front total does not include Eritrea’s claims for destruction of the Stela of Matara or the Tserona Patriots Cemetery, which are addressed separately at Section VI.E. Nor does the total include Eritrea’s claim for damages for nine buildings in Awgaro, which the Commission addresses at Section VI.H.
33 Eritrea combined its claims on several of these 23 structures in Senafe. Eritrea addressed the two Senafe Electrical Authority buildings in one claim; the three Senafe Old and New Town Administrative Headquarters buildings in one claim; the two Senafe Ministry of Agriculture buildings in one claim; and the three Senafe Sub-Zoba Administrative and Residential building claims in one claim. Accordingly, of the total of 201 separate Building Claims, only seventeen are for the 23 separately identified structures.
34 Ethiopia’s Counter-Memorial to Eritrea’s Damages Phase One Memorial (February 15, 2007), para. 3.5. The fifteen structures included the Stela of Matara, addressed separately in this award at Section VI.E.
35 See para. 24 supra.
36 Partial Award, Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22 between the State of Eritrea and the Federal Democratic Republic of Ethiopia (April 28, 2004) [hereinafter Partial Award in Eritrea’s Central Front Claims], dispositif, Section V.D, quoted in full above at para. 48.
37 ER Damages Group One Memorial, p. II-49.
38 Partial Award, Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9-13, 14, 21,25 & 26 between the State of Eritrea and the Federal Democratic Republic of Ethiopia (December 19, 2005) [hereinafter Partial Award in Eritrea’s Western Front and Related Claims], dispositif, Section. IX.A.2, quoted in full above at para. 49.
39 Id., para. 29.
40 Id.
41 Eritrea referenced a fourth that is not in the record: Report of damages to Barentu Bakery filed by the Eritrean War Disabled Fighters’ Association, 13 September 2000, cited in ER Damages Group One Memorial, note 767.
42 ER Damages Group One Memorial, Annex C, p. 3063.
43 Transcript of the Eritrea-Ethiopia Claims Commission Hearings of April 2007, Peace Palace, The Hague, at p. 789 (Professor Brilmayer) (April 24, 2007).
44 Supra note 25.
45 E.g., Partial Award in Eritrea’s Central Front Claims, para. 23; Partial Award, Central Front, Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (April 28, 2004) [hereinafter Partial Award in Ethiopia’s Central Front Claims], para. 17.
46 Transcript of the Eritrea-Ethiopia Claims Commission Hearings of April 2007, Peace Palace, The Hague, at pp. 773-774 (Professor Crawford) (April 24, 2007).
47 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. p. 3516, 75 U.N.T.S. p. 287 [hereinafter Geneva IV].
48 Protocol I, supra note 25, art. 10.
49 Partial Award in Eritrea’s Central Front Claims, dispositif, Section V.D.8.
50 Id., Section V.D.2.
51 Partial Award, Prisoners of War, Eritrea’s Claim 17 between the State of Eritrea and the Federal Democratic Republic of Ethiopia (July 1, 2003), dispositif, Section V.D.
52 E.g., Partial Award in Ethiopia’s Central Front Claims, para. 34; Partial Award in Eritrea’s Central Front Claims, para. 36.
53 Partial Award in Eritrea’s Central Front Claims, dispositif, Section V.D.5.
54 Partial Award in Eritrea’s Western Front and Related Claims, dispositif, Section IV.M.2.k.
55 Partial Award in Eritrea’s Western Front and Related Claims, dispositif, Section VIII.E.2.b.
56 Partial Award in Eritrea’s Western Front and Related Claims, para. 140.
57 Id., para. 139.
58 Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 Between the State of Eritrea and The Federal Democratic Republic of Ethiopia (Dec. 17, 2004) [hereinafter Partial Award in Eritrea’s Civilians Claims], dispositif, Section XIII. E.
59 Id., paras. 19, 20 & 90.
60 Id., para. 51.
61 Id., para. 73.
62 Id., para. 72.
63 Id., paras. 72 & 82.
64 Id., para. 73.
65 Id., paras. 19 & 90.
66 Id., dispositif, Section XIII.E.
67 Eritrea’s Group Number Two Damages Memorial was not consistent regarding the numbers of persons covered by this claim. The numbers of persons cited above are from the Memorial of the State of Eritrea, Damages (Group Two) filed on December 15, 2007, para. 1.100 [hereinafter ER Damages Group Two Memorial]. However, in a separate table at the end of the Memorial, Eritrea appeared to claim US$10,000 per capita in respect of 56,098 persons reflected in the ERREC database, plus an additional 428 persons expelled to third States.
68 See para. 286.
69 See Section VI.D.3 supra.
70 Partial Award in Eritrea’s Civilians Claims, para. 110.
71 Id., dispositif, Section XIII.E.
72 There was an unexplained arithmetical discrepancy of about 1,100 persons in Eritrea’s presentation of the number of expellees and their children covered by the claims forms. Eritrea claimed that 22,374 expellees filled out claims forms, and that this group had with them 23,027 minor children. This would suggest that expellees and their children totaled 45,401 persons. However, Eritrea’s Damages Group Two Memorial claimed there were 46,547 persons in these groups.
73 Partial Award, Prisoners of War, Ethiopia’s Claim 4 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (July 1, 2003), para. 41.
74 See Section VI.B.3 supra.
75 Partial Award in Eritrea’s Civilians Claims, para. 146.
76 Id., paras. 151 & 152. See also Article 46 of Geneva IV, supra note 47, requiring that restrictive measures affecting protected persons’ property ‘‘shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.’’
77 Partial Award, Loss of Property in Ethiopia Owned by Non-Residents, Eritrea’s Claim 24. Between the State of Eritrea and the Federal Democratic Republic of Ethiopia, para. 14.
78 Id., dispositif, Section V.B.
79 Partial Award in Eritrea’s Civilians Claims, dispositif, Section XIII.E.
80 Partial Award, Diplomatic Claim, Eritrea’s Claim 20 Between the State of Eritrea and the Federal Democratic Republic of Ethiopia (December 19, 2005) [hereinafter Partial Award in Eritrea’s Diplomatic Claim]; Partial Award, Ethiopia’s Claim 8 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 19, 2005).
81 Partial Award in Eritrea’s Diplomatic Claim, dispositif, Section IV.D.1 & 2.
82 Transcript of the Eritrea-Ethiopia Claims Commission Hearings of May 2008, Peace Palace, The Hague, at pp. 44-47 (May 22, 2008).
83 Partial Award in Eritrea’s Diplomatic Claim, para. 36.
84 Corfu Channel Case (U.K. v. Alb.), Merits, 1949 I.C.J Rep. p. 4, at p. 35. See also Rainbow Warrior Case(N.Z. v. Fr.), Award, Apr. 1990, 20 Reports of International Arbitral Awards p. 215, para. 122.
85 Report of the International Law Commission on the Work of its Fifty-Third Session (the Draft Articles on State Responsibility), Apr. 23-June 1, 2001 and July 2-Aug. 10, 2001, U.N. Doc. A/56/10, Commentary to Article 37 of the International Law Commission’s Draft Articles on State Responsibility, 2001, pp. 105-107.
86 Partial Award in Eritrea’s Civilians Claims, para. 72.
87 Id., para. 78.
88 Id., para. 82.
89 Id., para. 110.
90 Id., para. 146.
91 Id., paras. 151 & 152.
92 Id., para. 150.
93 Id., para. 157.
94 Id., para. 144 and dispositif, Section XIII.E.13.
95 Id., paras. 145 & 146.
96 Id., paras. 73, 94 & 95.
1 Various administrative matters, including the final disposition of the Commission Archive, as well as any post-Award matters potentially arising under the Commission’s Rules of Procedure, remain to be completed.
2 See Eritrea-Ethiopia Claims Commission Decision No. 4 (‘‘Evidence’’) (July 24, 2001) (‘‘The Parties are reminded that under Article 5(13) of the Agreement of December 12, 2000, the Commission is bound to apply the relevant rules of international law and cannot make decisions ex aequo et bono. The rules that the Commission must apply include those relating to the need for evidence to prove or disprove disputed facts.’’)
3 Manley O., Hudson, International Tribunals p. 197 (1944).Google Scholar
4 The Commission’s previous work is described in its Awards, available on the website of the Permanent Court of Arbitration, http://www.pca-cpa.org. Throughout this process, the Secretary-General and staff of the Permanent Court of Arbitration have provided highly professional and efficient support for the Commission, which records its sincere appreciation for all that has been done on its behalf. The Commission expresses particular thanks to Ms. Belinda Macmahon, who has served as its Registrar since 2004 with unstinting efficiency and professionalism.
5 All of the costs of these proceedings, including the costs of both Parties’ legal teams, have been borne by the Parties themselves. The Commission has sought to limit its own costs by minimizing travel and PCA support, by making extensive use of the Internet, and through other measures. Nevertheless, it is mindful that the proceedings have been a financial burden for both Parties.
6 See Human Development Report 2007/2008 (United Nations Development Programme), available at http://www.undp.org. The Report includes an index of human development trends (‘‘Human Development Index’’) in all countries. The ‘‘indicators’’ measure, for example, ‘‘public spending,’’ ‘‘commitments’’ to realize the ‘‘right to education,’’ or improvements in the ‘‘standard of living measured by the PPP [purchasing power parity].’’ Each country is ranked in accordance with a process that combines these and other indices.
7 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. p. 3.
8 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. p. 171.
9 United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 3, The Nature of States Parties Obligations under Art. 2(1) of the International Covenant on Economic, Social and Cultural Rights [ICESCR], U.N. Doc. E/1991/23, Annex III, at p. 86 (1991). A number of subsequent General Comments spell out the obligations of States Parties to achieve ‘‘progressive realization’’ of the particular rights guaranteed by other articles of the ICESCR, such as ‘‘the right to education.’’ All of these can be found in The Compilation of General Comments Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev. 9 (2006). Examples of these General Comments include General Comment No. 16, The equal right of men and women to the enjoyment of all economic, social and cultural rights (ICESCR, art. 3); General Comment No. 15, The right to water; General Comment No. 14, The right to the highest standard of health (ICESCR, art. 12); and General Comment No. 13, The right to education (ICESCR, art. 13). See also Magdalena Sepulveda, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights (2003); Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Audrey Chapman & Sage Russell eds., 2002); Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Ian Brownlie ed., 1995); Judith V. Welling, International Indicators and Economic, Social, and Cultural Rights, 30(4) HUM. RTS. Q. p. 933 (2008). The Secretary General urged all UN development agencies to adopt a common ‘‘Human Rights Based Approach’’ to their development missions and, working together, common rights-focused country plans. See Strengthening of the United Nations: An Agenda for Further Change, Report of the Secretary-General, U.N. GAOR, 57th Sess., U.N. Doc. A/57/387 (2002).
10 Eritrea-Ethiopia Claims Commission Decision No. 7 (‘‘Guidance Regarding Jus ad Bellum Liability’’) (July 27, 2007).
11 Id.,pp.6-7.
12 See William W. Bishop, General Course of Public International Law, 1965, in II Recueil des Cours, Tome 115 p. 403 (1965); Richard Falk, Reparations, International Law, and Global Justice, in The Handbook of Reparations p. 492 (Pablo de Greiff ed., 2006); Christian Tomuschat, Reparations in Favour of Individual Victims of Gross Violations of Human Rights and International Humanitarian Law, in Promoting Justice, Human Rights and Conflict Resolution Through International Law/La promotion de la justice, des droits de l’homme et du reglement des conflits par le droit international, Liber Amicorum Lucius Caflisch p. 569, at pp. 581 et seq. (Marcelo G. Kohen ed., 2007).
13 Factory at Chorzo´w, Merits, 1928 P.C.I.J. (Ser. A.) No. 17, p. 47.
14 Under Article 5(9) of the Agreement, ‘‘[i]n appropriate cases, each party may file claims on behalf of persons of Ethiopian or Eritrean origin who may not be its nationals. Such claims shall be considered by the Commission on the same basis as claims submitted on behalf of that party’s nationals.’’ This unusual provision was not utilized. While Eritrea sought to bring claims predicated upon injuries to Ethiopian nationals, it did so on behalf of the State of Eritrea, and not on behalf of the injured individuals.
15 Eritrea-Ethiopia Claims Commission Decision No. 8 (‘‘Relief to War Victims’’) (July 27, 2007).
16 See, e.g., The Laguna del Desierto Arbitration (Arg./Chile), (Award), 113 I.L.R. 1, 194, at para. 70 (1995) (‘‘International law provides rules for interpretation of any legal instrument, whether it be a treaty, a unilateral act, an arbitral award or a resolution of an international organization. They include: the natural and ordinary meaning of the words used; their context; and their effet util.’’).
17 As noted in a recent judgment of the International Court of Justice, ‘‘if any question arises as to the scope of res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given.’’ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. p. 48, at para. 125 (Feb. 26). See also Shabtai Rosenne, III The Law and Practice of the International Court 1920–2005 p. 1603 (4th ed. 2006) (discussing the importance attached to written and oral pleadings in ascertaining the scope of res judicata).
18 See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 2007 I.C.J. pp. 76-77, paras. 209-210 (‘‘The Court has long recognized that claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive . . . . In respect of the Applicant’s claim that the Respondent has breached its undertakings to prevent genocide and to punish and extradite persons charged with genocide, the Court requires proof at a high level of certainty appropriate to the seriousness of the allegation.’’).
19 Mark, Kantor, Valuation for Arbitration: Compensation Standards, Valuation Methods and Expert Evidence pp. 72-73 (2008).Google Scholar
20 See Chittharanjan, Amerasinghe, Evidence in International Litigation pp. 241-242 (2005).Google Scholar
21 See Chaplin v. Hicks [1911] 2 K.B. 786, 972 C.A. (where precision or accuracy is not possible in assessingcontract damages, ‘‘the jury must do the best they can, and it may be that the amount of their verdict will reallybe a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve thewrongdoer of the necessity of paying damages for his breach . . . .’’).
22 See UNIDROIT Principles of International Commercial Contracts, available at www.unidroit.org, art. 7.4.3,para. (3) (‘‘Where the amount of damages cannot be established with a sufficient degree of certainty, theassessment is at the discretion of the court.’’).
23 See Jacomijn J. van Haersolte-van Hof, Innovations to Speed Mass Claims, New Standards of Proof, in Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges p. 13 (Permanent Court of Arbitration ed., 2006).
24 Decision No. 7, supra note 10, at paras. 13-14.
25 See Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. p. 277, 1 Bevans p. 631, art. 3 (‘‘A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation.’’); Protocol Additional to the 1949 Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. p. 3, art. 91 (‘‘A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation’’) [hereinafter Protocol I].
26 Any reference in this Award to amounts claimed in U.S. dollars, where the underlying claim involves amounts denominated in nakfa or birr, is solely for purposes of illustration. Except where otherwise stated, conversions of claimed amounts into U.S. dollars are those provided by a Party, and do not reflect any judgment by the Commission regarding the appropriateness of the exchange rate employed or related matters.
27 In Ethiopia’s Group Number One damages claims, these included all persons allegedly affected by Eritrea’s jus in bello violations involving injuries to persons; persons killed or injured by the bombings near the Ayder School; almost 350,000 internally displaced persons; and other deaths and injuries Ethiopia attributed to Eritrea’s violation of the jus ad bellum, such as casualties from landmines.
28 See Tomuschat, supra note 12, at pp. 579, 582-84.
29 Id., p. 584.
30 See Redressing Injustices Through Mass Claims Processes: Innovative Responses to Unique Challenges (Permanent Court of Arbitration, ed., 2006).
31 Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23 & 27–32 Between the State of Eritrea and The Federal Democratic Republic of Ethiopia (December 17, 2004) [hereinafter Partial Award in Eritrea’s Civilian Claims], at p. 20.
32 Counsel for Ethiopia also contended that the Commission found that certain violations were ‘‘pervasive,’’ but the dispositifs of the Commission’s Partial Awards only used the term once, concerning a violation involving Eritrea’s treatment of prisoners of war.
33 Partial Award, Central Front, Ethiopia’s Claim 2 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (April 28, 2004) [hereinafter Partial Award in Ethiopia’s Central Front Claims], dispositif, Section V.D.
34 Partial Award, Western and Eastern Fronts, Ethiopia’s Claims 1 & 3 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 19, 2005) [hereinafter Partial Award in Ethiopia’s Western and Eastern Front Claims], dispositif, Section VI.F.2.
35 Id., dispositif, Section VII.F.2.
36 E.g., Partial Award in Ethiopia’s Central Front Claims, para. 24; Partial Award, Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22 Between the State of Eritrea and The Federal Democratic Republic of Ethiopia (April 28, 2004) [hereinafter Partial Award in Eritrea’s Central Front Claims], para. 36.
37 Partial Award in Ethiopia’s Central Front Claims, dispositif, Section V.D.7.
38 Partial Award in Ethiopia’s Western and Eastern Front Claims, dispositif, Section VII.F.2.b.
39 See Section VIII.A supra.
40 Partial Award in Eritrea’s Central Front Claims, paras. 67 & 69.
41 See Section XI.E.1 supra.
42 Eritrea-Ethiopia Claims Commission Decision No. 2 (‘‘Claims Categories, Forms and Procedures’’); Decision No. 5 (‘‘Multiple Claims in the Mass Claims Process, Fixed-Sum Compensation at the $500 and $1500 Levels, Multiplier for Household Claims’’) (both dated August 2001).
43 Partial Award, Prisoners of War, Ethiopia’s Claim 4 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (July 1, 2003) [hereinafter Partial Award in Ethiopia’s POW Claims], dispositif, Section V.D.
44 Id., para 83.
45 Id., para. 110.
46 Partial Award, Civilians Claims, Ethiopia’s Claim 5 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 17, 2004) [hereinafter Partial Award in Ethiopia’s Civilians Claims], dispositif, Section VIII.D.
47 Id., para. 11.
48 Id., para. 6.
49 Id., para. 7.
50 Id.
51 Id., paras. 40-43.
52 Id., para. 52.
53 Id., para. 75.
54 Id., paras. 74 & 75. See also Partial Award in Ethiopia’s POW Claims, paras. 55-62.
55 Partial Award in Ethiopia’s Civilians Claims, para. 74.
56 Country Reports on Human Rights Practices for 2001, Eritrea (U.S. Department of State, Mar. 4, 2002), available at http://www.state.gov/g/drl/rls/hrrpt/2001/af/8370.htm (visited Aug. 14, 2009). (Emphasis added.)
57 Partial Award in Ethiopia’s Civilians Claims, para. 71.
58 Id., para. 78.
59 Id., para. 100.
60 Id.
61 Id., paras. 132-135.
62 Id., para. 134.
63 Corfu Channel Case (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep. p. 244 (Dec. 15).
64 Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1-8 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 19, 2005) [hereinafter Partial Award in Ethiopia’s Jus Ad Bellum Claims], dispositif, Section IV.7.
65 Partial Award in Ethiopia’s Jus Ad Bellum Claims; Decision No. 7, supra note 10.
66 Id.
67 Partial Award in Ethiopia’s Jus Ad Bellum Claims, dispositif, Section IV.B.1.
68 Id., Section IV.B.2.
69 Armed Activities on the Territory of the Congo (Congo v. Uganda), Judgment, 2005 I.C.J. Rep. p. 82, paras. 259-260 (Dec. 19).
70 Case Concerning The Land and Maritime Boundary Between Cameroon And Nigeria (Cameroon v. Nig.: Eq. Guinea Intervening), Judgment, 2002 I.C.J. Rep. p. 153, para. 319 (10 Oct.).
71 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Order of 26 Sept. 1991, 1991 I.C.J. Rep. p. 47.
72 Record of the Proceedings of the Tribunal of Arbitration, June 19, 1872, reprinted in III Marjorie M. Whiteman, Damages in International Law p. 1773 (1943).
73 Id., pp. 1793-94.
74 See N. Wühler, Causation and Directness of Loss as Elements of Compensability Before the United Nations Compensation Commission, in The United Nations Compensation Commission p. 205 (R. Lillich ed., 1995).
75 Eisenbach Brothers & Company (U.S. v. Germ.), Administrative Decisions and Opinions of a General Nature and Opinions and Decisions in Certain Individual Claims pp. 857-858 (Parker, Umpire, 1933), quoted in Whiteman, supra note 72, at pp. 1796-97 (the loss when a cargo vessel struck a mine in 1919 was directly attributable to the hostile act of planting the mine, even if the loss occurred after hostilities ended, and the mine could have been placed either by Germany or by an opposing belligerent).
76 See, e.g., UNCC Decision 17, S/AC.26/1991/Rev/1 (March 17, 1992) (covered claims include ‘‘any loss suffered as a result of . . . [m]ilitary action or threat of military action by either side . . . .’’).
77 Whiteman, supra note 72, at p. 1767.
78 The Commission thus does not share the view of the British and American Commissioners assessing the Samoan claims who believed that, in a pre-Charter case involving resort to force, damages should be limited only to those ‘‘which a reasonable man in the position of the wrong-doer at the time would have foreseen as likely to ensue from his action.’’ Whiteman, supra note 72, at p. 1780 (emphasis added).
79 On February 27, 1999, following significant reverses in the course of Operation Sunset, Eritrea sent letters accepting the Organization of African Unity (‘‘OAU’’) Framework Agreement for settlement of the dispute. Ethiopia had previously accepted the agreement as well. That same day, theUN Security Council adopted a presidential statement welcoming Eritrea’s action, and demanding that the parties cease hostilities. For reasons that are disputed between the Parties, hostilities continued.
80 Partial Award in Ethiopia’s Jus Ad Bellum Claims, para. 18.
81 Final Award, Ports, Ethiopia’s Claim 6 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 19, 2005) [hereinafter Final Award in Ethiopia’s Ports Claim].
82 See OAU Framework Agreement, supra note 79.
83 See Corfu Channel, supra note 63, at p. 244.
84 See para. 19 et seq. supra.
85 Report of the Secretary-General pursuant to paragraph 10 of Security Council Resolution 687, S/22559 (May 2, 1991); Letter from the Secretary-General to the President of the Security Council, S/22661 (May 31, 1991). Over the years of its operation, the UNCC found liability against Iraq in a principal amount of about US$52 billion dollars, roughly 15% of the amount claimed. Less than half of that amount has been paid, and further substantial payments through the UNCC mechanism do not appear likely. See Status of Processing and Payment of Claims, available at http://www2.unog.ch/uncc/status.htm (visited March 31, 2009).
86 See Carsten Stahn, ‘‘Jus ad Bellum,’’ ‘‘Jus in Bello’’ ... ‘‘Jus post Bellum’’?: Rethinking the Conception of the Law of Armed Force, 17 Eur. J. Int’l L. pp. 921-943 (2006), reprinted in International Law: Classic Contemporary Reading (Charlotte Ku & Paul F. Diehl eds., 3d ed. 2009).
87 See para. 340 infra.
88 See Sections X.B supra and XI.K infra.
89 Section VIII.C supra.
90 See para. 132 supra.
91 Ethiopia claimed US$5,938,314 of this amount for the destruction and looting of 162 buildings or pieces of infrastructure on the Central Front and US$5,459,666 for 169 buildings or pieces of infrastructure on the Western Front.
92 In the agreement, the World Bank undertook to provide financing for a program of actions relating to the ‘‘Emergency’’ that began in May 1998, which included both the conflict between Eritrea and Ethiopia and the drought. In order to receive such financing, Ethiopia affirmed that amounts borrowed would be committed to the objectives of the program, which included (i) ‘‘to assist the people affected by the Emergency rebuild their lived and resume economic activities,’’ (ii) ‘‘rehabilitate and reconstruct social infrastructure,’’ and (iii) ‘‘support macroeconomic stability.’’
93 See Eisenbach Brothers & Company, supra note 75.
94 Partial Award in Ethiopia’s POW Claims, paras. 40 & 41.
95 Partial Award in Ethiopia’s Central Front Claims, para. 32.
96 Ethiopia also claimed damages under the jus in bello for another 712 Ethiopia soldiers it estimated were killed at capture, based on its undocumented hypothesis that two-thirds as many surrendering soldiers were killed as were taken prisoner. Ethiopia’s jus in bello claims involving POWs were considered in Section X.A above.
97 Partial Award in Ethiopia’s Civilians Claims, paras. 6 & 7.
98 Final Award, Ports, Ethiopia’s Claim 6 Between the Federal Democratic Republic of Ethiopia and the State of Eritrea (December 19, 2005) [hereinafter Final Award in Ethiopia’s Ports Claim], para. 19.
99 Decision No. 7, supra note 10, para. 2 (emphasis added).
100 Final Award in Ethiopia’s Ports Claim, paras. 5 & 6.
101 Id., paras. 19-20.
102 Partial Award in Eritrea’s Civilians Claims, para. 146.
103 Id., paras. 151 & 152.
104 See also Article 46 of Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. p. 3516, 75 U.N.T.S. p. 287, requiring that restrictive measures affecting protected persons’ property ‘‘shall be cancelled, in accordance with the law of the Detaining Power, as soon as possible after the close of hostilities.’’
105 Ethiopia’s liability phase evidence estimated the wartime losses of tourists to be variously 100,753 and 125,941. The difference between the two estimates was not explained nor was it apparent to the Commission.