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Appropriate compensation has been awarded for personal injury to nationals, in addition to any compensation for direct injury which a State may itself have suffered in relation to the same event. Compensatable personal injury covers not only associated material losses, such as loss of earnings and earning capacity, medical expenses, and similar losses, but also non-material or moral damage suffered by the individual. Moral damage is capable of financial assessment and may be the subject of a claim of compensation as was emphatically stated in the Lusitania Case. 61 It was said that international law offers compensation (p. 298) for mental suffering, injury to feelings, humiliation, shame, degradation, loss of social position, or injury to credit and reputation, which were very real injuries, and that ‘the mere fact that they are difficult to measure or estimate by money standards makes them none the less real and affords no reason why the injured person should not be compensated …’. 62International courts and tribunals have in many cases made assessments of compensation for personal injury. For example, in the M/V Saiga Case, referred to earlier, the ITLOS held that Saint Vincent and the Grenadines' entitlement to compensation included damages for injury to the crew, their unlawful arrest, detention, and other forms of ill-treatment.
Historically compensation for personal injury suffered by the nationals of a State was dealt with mainly by mixed claims commissions associated with the exercise of diplomatic protection resulting from State responsibility for injury to aliens. Compensation was awarded for personal injury in cases of both wrongfully causing death and deprivation of liberty. Where claims were made in respect of wrongful death, compensation by way of damages was calculated by evaluating the damage to the surviving heirs or successors on the basis of the formula expressed by Umpire Parker in the Lusitania Case, under which an estimate is made of
the amounts (a) which the decedent, had he not been killed, would probably have contributed to the claimant, add thereto (b) the pecuniary value to such claimant of the deceased's personal services in claimant's case, education, or supervision, and also add (c) reasonable compensation for such mental suffering or shock, if any, caused by the violent severing of family ties, as [the] claimant may actually have sustained by reason of such death. The sum of these estimates reduced to its present cash value, will generally represent the loss sustained by claimant. 63
In cases of deprivation of liberty, arbitrators sometimes awarded a particular amount for each day spent in detention. 64 Awards were often increased when abusive conditions of confinement accompanied the wrongful arrest and imprisonment, resulting in particularly serious physical or psychological injury. 65
Compensation for personal injury has also been awarded by human rights bodies, in particular the European and Inter-American Courts of Human Rights. Awards of compensation encompass material losses (loss of earnings, pensions, medical expenses, etc) and non-material or moral damage (pain and suffering, mental anguish, humiliation, loss of enjoyment of life, and loss of companionship or consortium), the latter usually being quantified on the basis of an equitable assessment. Hitherto, amounts of compensation or damages, especially for (p. 299) moral injury, awarded or recommended by these bodies have been modest. 66 These decisions of human rights bodies on compensation clearly call in aid principles recognized by general international law. 67
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