102 Report of the International Law Commission on the work of its fifty-third session suffering, injury to feelings, humiliation, shame, degradation, loss of social position or injury to credit and reputation, such injuries being “very real, and 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 …”.541 (17) International courts and tribunals have undertaken the assessment of compensation for personal injury on numerous occasions. For example, in the M/V “Saiga” case, 542 the tribunal 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. (18) Historically, compensation for personal injury suffered by nationals or officials of a State arose mainly in the context of mixed claims commissions dealing with State responsibility for injury to aliens. Claims commissions awarded compensation for personal injury both in cases of wrongful death and deprivation of liberty. Where claims were made in respect of wrongful death, damages were generally based on an evaluation of the losses of the surviving heirs or successors, calculated in accordance with the well-known formula of Umpire Parker in the “Lusitania” case: Estimate 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 care, 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 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.543 In cases of deprivation of liberty, arbitrators sometimes awarded a set amount for each day spent in detention.544 Awards were often increased when abusive conditions of confinement accompanied the wrongful arrest and imprisonment, resulting in particularly serious physical or psychological injury.545 (19) Compensation for personal injury has also been dealt with by human rights bodies, in particular the European Court of Human Rights and the Inter-American Court of Human Rights. Awards of compensation encompass material losses (loss of earnings, pensions, medical expenses, etc.) and non-material damage (pain and suffering, mental anguish, humiliation, loss of enjoyment of life and loss of companionship or consortium), the latter usually quantified on the basis of an equitable assessment. Hitherto, amounts of compensation or damages awarded or recommended by these bodies have been modest.546 Nonetheless, the decisions of human rights bodies 541 “Lusitania” (see footnote 514 above), p. 40. See footnote 515 above. 543 “Lusitania” (see footnote 514 above), p. 35. 544 For example, the “Topaze” case, UNRIAA, vol. IX (Sales No. 59.V.5), p. 387, at p. 389 (1903); and the Faulkner case, ibid., vol. IV (Sales No. 1951.V.1), p. 67, at p. 71 (1926). 545 For example, the William McNeil case, ibid., vol. V (Sales No. 1952.V.3), p. 164, at p. 168 (1931). 546 See the review by Shelton, op. cit. (footnote 521 above), chaps. 8–9; A. Randelzhofer and C. Tomuschat, eds., State Responsibility and the Individual: Reparation in Instances of Grave Violations 542 on compensation draw on principles of reparation under general international law.547 (20) In addition to a large number of lump-sum compensation agreements covering multiple claims,548 property claims of nationals arising out of an internationally wrongful act have been adjudicated by a wide range of ad hoc and standing tribunals and commissions, with reported cases spanning two centuries. Given the diversity of adjudicating bodies, the awards exhibit considerable variability.549 Nevertheless, they provide useful principles to guide the determination of compensation under this head of damage. (21) The reference point for valuation purposes is the loss suffered by the claimant whose property rights have been infringed. This loss is usually assessed by reference to specific heads of damage relating to (i) compensation for capital value; (ii) compensation for loss of profits; and (iii) incidental expenses. (22) Compensation reflecting the capital value of property taken or destroyed as the result of an internationally wrongful act is generally assessed on the basis of the “fair market value” of the property lost.550 The method used to of Human Rights (The Hague, Martinus Nijhoff, 1999); and R. Pisillo Mazzeschi, “La riparazione per violazione dei diritti umani nel diritto internazionale e nella Convenzione europea”, La Comunità internazionale, vol. 53, No. 2 (1998), p. 215. 547 See, e.g., the decision of the Inter-American Court of Human Rights in the Velásquez Rodríguez case (footnote 63 above), pp. 26–27 and 30–31. Cf. Papamichalopoulos (footnote 515 above). 548 See, e.g., R. B. Lillich and B. H. Weston, International Claims: Their Settlement by Lump Sum Agreements (Charlottesville, University Press of Virginia, 1975); and B. H. Weston, R. B. Lillich and D. J. Bederman, International Claims: Their Settlement by Lump Sum Agreements, 1975–1995 (Ardsley, N.Y., Transnational, 1999). 549 Controversy has persisted in relation to expropriation cases, particularly over standards of compensation applicable in the light of the distinction between lawful expropriation of property by the State on the one hand, and unlawful takings on the other, a distinction clearly drawn by PCIJ in Factory at Chorzów, Merits (footnote 34 above), p. 47. In a number of cases, tribunals have employed the distinction to rule in favour of compensation for lost profits in cases of unlawful takings (see, e.g., the observations of the arbitrator in Libyan American Oil Company (LIAMCO) (footnote 508 above), pp. 202–203; and also the Aminoil arbitration (footnote 496 above), p. 600, para. 138; and Amoco International Finance Corporation v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 15, p. 189, at p. 246, para. 192 (1987)). Not all cases, however, have drawn a distinction between the applicable compensation principles based on the lawfulness or unlawfulness of the taking. See, e.g., the decision of the Iran-United States Claims Tribunal in Phillips Petroleum (footnote 164 above), p. 122, para. 110. See also Starrett Housing Corporation v. Government of the Islamic Republic of Iran, Iran‑U.S. C.T.R., vol. 16, p. 112 (1987), where the tribunal made no distinction in terms of the lawfulness of the taking and its award included compensation for lost profits. 550 See American International Group, Inc. v. The Islamic Republic of Iran, which stated that, under general international law, “the valuation should be made on the basis of the fair market value of the shares”, IranU.S. C.T.R., vol. 4, p. 96, at p. 106 (1983). In Starrett Housing Corporation (see footnote 549 above), the tribunal accepted its expert’s concept of fair market value “as the price that a willing buyer would pay to a willing seller in circumstances in which each had good information, each desired to maximize his financial gain, and neither was under duress or threat” (p. 201). See also the Guidelines on the Treatment of Foreign Direct Investment, which state in paragraph 3 of part IV that compensation “will be deemed ‘adequate’ if it is based on the fair market value of the taken asset as such value is determined immediately before the time at which the taking occurred or the decision to take the asset became publicly known”, World Bank, Legal Framework