106 Report of the International Law Commission on the work of its fifty-third session tion to give satisfaction, having regard to former practices in cases where unreasonable forms of satisfaction were sometimes demanded. (3) In accordance with paragraph 2 of article 31, the injury for which a responsible State is obliged to make full reparation embraces “any damage, whether material or moral, caused by the internationally wrongful act of a State”. Material and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation. Satisfaction, on the other hand, is the remedy for those injuries, not financially assessable, which amount to an affront to the State. These injuries are frequently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned. (4) The availability of the remedy of satisfaction for injury of this kind, sometimes described as “non-material injury”,580 is well established in international law. The point was made, for example, by the tribunal in the “Rainbow Warrior” arbitration: There is a long established practice of States and international Courts and Tribunals of using satisfaction as a remedy or form of reparation (in the wide sense) for the breach of an international obligation. This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities.581 State practice also provides many instances of claims for satisfaction in circumstances where the internationally wrongful act of a State causes non-material injury to another State. Examples include situations of insults to the symbols of the State, such as the national flag,582 violations of sovereignty or territorial integrity,583 attacks on ships or aircraft,584 ill-treatment of or deliberate attacks on heads of State or Government or diplomatic or consular representatives or other protected persons585 and violations of the premises of embassies or consulates or of the residences of members of the mission.586 580 See C. Dominicé, “De la réparation constructive du préjudice immatériel souffert par un État”, L’ordre juridique international entre tradition et innovation: recueil d’études (Paris, Presses Universitaires de France, 1997), p. 349, at p. 354. 581 “Rainbow Warrior” (see footnote 46 above), pp. 272–273, para. 122. 582 Examples are the Magee case (Whiteman, Damages in International Law, vol. I (see footnote 347 above), p. 64 (1874)), the Petit Vaisseau case (La prassi italiana di diritto internazionale, 2nd series (see footnote 498 above), vol. III, No. 2564 (1863)) and the case that arose from the insult to the French flag in Berlin in 1920 (C. Eagleton, The Responsibility of States in International Law (New York University Press, 1928), pp. 186–187). 583 As occurred in the “Rainbow Warrior” arbitration (see footnote 46 above). 584 Examples include the attack carried out in 1961 against a Soviet aircraft transporting President Brezhnev by French fighter planes over the international waters of the Mediterranean (RGDIP, vol. 65 (1961), p. 603); and the sinking of a Bahamian ship in 1980 by a Cuban aircraft (ibid., vol. 84 (1980), pp. 1078–1079). 585 See F. Przetacznik, “La responsabilité internationale de l’État à raison des préjudices de caractère moral et politique causés à un autre État”, RGDIP, vol. 78 (1974), p. 919, at p. 951. 586 Examples include the attack by demonstrators in 1851 on the Spanish Consulate in New Orleans (Moore, Digest, vol. VI, p. 811, at p. 812), and the failed attempt of two Egyptian policemen, in 1888, to intrude upon the premises of the Italian Consulate at Alexandria (5) Paragraph 2 of article 37 provides that satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. The forms of satisfaction listed in the article are no more than examples. The appropriate form of satisfaction will depend on the circumstances and cannot be prescribed in advance.587 Many possibilities exist, including due inquiry into the causes of an accident resulting in harm or injury,588 a trust fund to manage compensation payments in the interests of the beneficiaries, disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act589 or the award of symbolic damages for non-pecuniary injury.590 Assurances or guarantees of non-repetition, which are dealt with in the articles in the context of cessation, may also amount to a form of satisfaction.591 Paragraph 2 does not attempt to list all the possibilities, but neither is it intended to exclude them. Moreover, the order of the modalities of satisfaction in paragraph 2 is not intended to reflect any hierarchy or preference. Paragraph 2 simply gives examples which are not listed in order of appropriateness or seriousness. The appropriate mode, if any, will be determined having regard to the circumstances of each case. (6) One of the most common modalities of satisfaction provided in the case of moral or non-material injury to the State is a declaration of the wrongfulness of the act by a competent court or tribunal. The utility of declaratory relief as a form of satisfaction in the case of non-material injury to a State was affirmed by ICJ in the Corfu Channel case, where the Court, after finding unlawful a minesweeping operation (Operation Retail) carried out by the British Navy after the explosion, said: [T]o ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. (La prassi italiana di diritto internazionale, 2nd series (see footnote 498 above), vol. III, No. 2558). Also see cases of apologies and expressions of regret following demonstrations in front of the French Embassy in Belgrade in 1961 (RGDIP, vol. 65 (1961), p. 610), and the fires in the libraries of the United States Information Services in Cairo in 1964 (ibid., vol. 69 (1965), pp. 130–131) and in Karachi in 1965 (ibid., vol. 70 (1966), pp. 165–166). 587 In the “Rainbow Warrior” arbitration the tribunal, while rejecting New Zealand’s claims for restitution and/or cessation and declining to award compensation, made various declarations by way of satisfaction, and in addition a recommendation “to assist [the parties] in putting an end to the present unhappy affair”. Specifically, it recommended that France contribute US$ 2 million to a fund to be established “to promote close and friendly relations between the citizens of the two countries” (see footnote 46 above), p. 274, paras. 126–127. See also L. Migliorino, “Sur la déclaration d’illicéité comme forme de satisfaction: à propos de la sentence arbitrale du 30 avril 1990 dans l’affaire du Rainbow Warrior”, RGDIP, vol. 96 (1992), p. 61. 588 For example, the United States naval inquiry into the causes of the collision between an American submarine and the Japanese fishing vessel, the Ehime Maru, in waters off Honolulu, The New York Times, 8 February 2001, sect. 1, p. 1. 589 Action against the guilty individuals was requested in the case of the killing in 1948, in Palestine, of Count Bernadotte while he was acting in the service of the United Nations (Whiteman, Digest of International Law, vol. 8, pp. 742–743) and in the case of the killing of two United States officers in Tehran (RGDIP, vol. 80 (1976, p. 257). 590 See, e.g., the cases “I’m Alone”, UNRIAA, vol. III (Sales No. 1949.V.2), p. 1609 (1935); and “Rainbow Warrior” (footnote 46 above). 591 See paragraph (11) of the commentary to article 30.