Article 35 of the ILC's Articles on State Responsibility states:
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, provided and to the extent that restitution:
1. (a) is not materially possible;
2. (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation. 32
Restitution (restitutio in integrum) is the first of the forms of reparation available to a State injured by any internationally wrongful act in general and in respect of its nationals in particular. What applies to State responsibility in general holds true for State responsibility arising from an injury to one of a State's nationals. Restitution involves the re-establishment as far as possible of the situation which existed prior to the commission of the internationally wrongful act, to the extent that any changes that have occurred in that situation may be traced to that act. In its simplest form, this involves such conduct as the release of persons wrongly detained or the return of property wrongly seized. In other cases, restitution may be a more complex act.
Restitution is not only a form of reparation, but it is the chief form of reparation. Its must be ordered by a tribunal and the complainant is entitled to it, unless the complainant does not request it or gives up his or its right to it, or circumstances make it difficult to implement it. On the other hand, restitution may be inadequate to remedy the damage caused. Then there will be an entitlement to compensation in addition.
The concept of restitution is not uniformly defined. According to one definition, restitution consists in re-establishing the status quo ante, ie the situation that existed prior to the occurrence of the wrongful act. Under another definition, restitution is the establishment or re-establishment of the situation that would have existed if the wrongful act had not been committed. The former definition is the narrower one; it does not extend to the compensation which may be (p. 291) due to the injured party for loss suffered, for example for loss of the use of goods wrongfully detained but subsequently returned. The latter definition absorbs into the concept of restitution other elements of full reparation and tends to conflate restitution as a form of reparation and the underlying obligation of reparation itself. Article 35 of the ILC Articles adopts the narrower definition which has the advantage of focusing on the assessment of a factual situation and of not requiring a hypothetical inquiry into what the situation would have been if the wrongful act had not been committed. Restitution in this narrow sense may, of course, have to be complemented by compensation in order to ensure full reparation for the damage caused. Nonetheless, because restitution most closely conforms to the general principle that the responsible State is bound to wipe out the legal and material consequences of its wrongful act by re-establishing the situation which existed before the wrongful act had been committed, it comes first among the forms of reparation. The primacy of restitution was clearly asserted by the PCIJ in the Chorzów Factory Case (Merits). It said that the responsible State was under ‘the obligation to restore the undertaking and, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible’. 33 The Court added that ‘The impossibility, on which the Parties are agreed, of restoring the Chorzów factory could therefore have no other effect but that of substituting payment of the value of the undertaking for restitution.’ 34 It can be seen in operation in the cases where tribunals have considered compensation only after concluding that, for one reason or another, restitution could not be effected. 35 Despite the difficulties restitution may encounter in practice, States have often insisted upon claiming it in preference to compensation. Where a peremptory norm is violated in the treatment of an alien, eg one relating to personal liberty, restitution may be required as an aspect of compliance with the primary obligation.
However, there are often situations where restitution is not available or where its value to the injured State is so reduced that other forms of reparation take priority. But quite apart from valid election by the injured State or other entity, the possibility of restitution may be practically excluded, eg because the property in question has been destroyed or fundamentally changed in character or because the situation cannot be restored to the status quo ante for some reason. Indeed, in some cases tribunals have inferred from the terms of the compromis or the positions of the parties what amounts to a discretion to award compensation rather than restitution. For example, in the Walter Fletcher Smith Case, the arbitrator, while maintaining that restitution should be appropriate in principle, interpreted the compromis as giving him a discretion to award compensation and did so in (p. 292) ‘the best interests of the parties, and of the public’. 36 In the Aminoil Case the parties agreed that restoration of the status quo ante following the annulment of the concession by the Kuwaiti decree would be impracticable. 37
Restitution may take the form of material restoration or return of property, or the reversal of some juridical act, or some combination of them. Examples of material restitution include the release of detained individuals, the handing over to a State of an individual arrested in its territory, 38 the return of ships, 39 or other types of property 40 including documents, works of art, share certificates, etc. 41The term ‘juridical restitution’ is sometimes used where restitution requires or involves the modification of a legal situation whether within the legal system of the responsible State or in its legal relations with the injured State. Such cases include the revocation, annulment, or amendment of a constitutional or legislative provision enacted in violation of a rule of international law, or the rescinding or reconsideration of an administrative or judicial measure unlawfully adopted in respect of the person or property of a foreigner. 42 In some cases, both material and juridical restitution in the above sense may be required. 43 In others, an international court or tribunal can, by determining the legal position with binding force for the parties, award what amounts to restitution under another form. 44 The term ‘restitution’ for the purpose of reparation has a broad meaning, (p. 293) encompassing any action that needs to be taken by the responsible State to restore the situation resulting from its internationally wrongful act, in respect of an alien or aliens.
What may be required in terms of restitution will often depend on the content of the primary obligation which has been breached. Restitution, as the first of the forms of reparation, is of particular importance where the obligation breached is of a continuing character, and even more so where it arises under a peremptory norm of general international law.
The obligation to make restitution is not unlimited. In particular, restitution is required ‘provided and to the extent that’ it is neither materially impossible nor wholly disproportionate. The phrase ‘provided and to the extent that’ makes it clear that restitution may be only partially excluded, in which case the responsible State will be obliged to make restitution to the extent that this is neither impossible nor disproportionate. Under Article 35(a) restitution is not required if it is ‘materially impossible’. This would apply where property to be restored has been permanently lost or destroyed, or has deteriorated to such an extent as to be valueless. On the other hand, restitution is not impossible merely on the grounds of legal or practical difficulties, even though the responsible State may have to make special efforts to overcome these. As pointed out earlier, the wrongdoing State may not invoke the provisions of its internal law as justification for the failure to provide full reparation, and the mere fact of political or administrative obstacles to restitution do not amount to impossibility. Material impossibility is not limited to cases where the object in question has been destroyed, but can cover more complex situations. In the Forests of Central Rhodope Case the claimant was entitled to only a share of the forestry operations and no claims had been brought by other participants. The forests were not in the same condition as at the time of their wrongful taking, and detailed inquiries would have been necessary to determine their condition. Moreover, since the taking, third parties had acquired rights to them. For a combination of these reasons, restitution was denied. 45 The case supports a broad understanding of the impossibility of granting restitution. However, it concerned questions of property rights within the legal system of the responsible State. 46 The position may be different where the rights and obligations in issue arise directly on the international plane. In the latter context restitution plays a particularly important role. In certain cases, the position of third parties may have been taken into account in considering whether restitution is materially possible. This was true in the Forests of Central Rhodope Case, referred to above. But whether the position of a third party will preclude restitution will (p. 294) depend on the circumstances, including whether the third party at the time of entering into the transaction or assuming the disputed rights was acting in good faith and without notice of the claim to restitution.
A second exception, dealt with in Article 35(b), involves those cases where the benefit to be gained from restitution is wholly disproportionate to its cost to the responsible State. Specifically, restitution may not be required if it would ‘involve a burden out of all proportion to the benefit deriving from restitution instead of compensation’. This should apply only where there is a grave disproportionality between the burden which restitution would impose on the responsible State and the benefit which would be gained, either by the injured State or by any person who is a victim of the breach. It is thus based on considerations of equity and reasonableness, 47 although with a preference for the position of the injured State in any case where the balancing process does not indicate a clear preference for compensation as compared with restitution. The balance will invariably favour the injured State in any case where the failure to provide restitution in a case involving its national would jeopardize its political independence or economic stability. 48
Restitution is a form of specific performance and covers any specific performance required to achieve the restitutio in integrum.
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