~

Case 2-9
Chile-United

RE LETELIER AND MOFFITT

Settlement of Disputes That May Occur between the United States and Chile (popularly known as the Bryan-Suarez Mujica Treaty). Chile denied responsibility for the car bombing, but it did express its willingness to make an ex gratia48 payment to the US. government to be received on behalf of the victims' families. In 1990, the United States and Chile concluded a compromid9 establishing a commission pursuant to the 1914 treaty and Chile agreed to make an ex gratia payment in an amount to be determined by the commission.
AWARD OF THE COMMISSION

States International Commission, 1992.

International Law Reports, vol. 88, p. 727 (1992). In 1976, Orlando Letelier, a former foreign minister of Chile, was killed by a car bomb in Washington, D.C., in the United States. The bomb also killed Ronni Moffitt and seriously injured her husband, Michael Moffitt, both of whom had been riding in the car with Seiior Letelier. Moffitt, Letelier's estate, and various relatives of the two persons killed then brought suit in the United States alleging that the government of Chile had been responsible for the killings. The US. trial court held that Chile wm not entitled to sovereign immunity, and when Chile refused to participate in the proceeding, it awarded the plaintiffs a default judgment of approximately US. $5 million. Because the plaintiffs were unsuccessful in executing the judgment against Chile, the US. government intervened on their behalf and made an international claim against the government of Chile. Later, the United States invoked the 1914 Treaty for the
2-_

It is necessary to remember, first of all, that according to . . . the Compromis, the Commission is to determine the amount of the ex gratia payment to be made by the government of Chile in conformity with the applicable principles of international law, as though liability were established.

"Latin: "out of grace" or "as a matter of grace." Used to indicate an action taken as a favor, in contrast to one taken ex debito,"as a matter of right." 49fiench:"a mutual promise" or "a compromise." An agreement to abide by the decision of an arbitrator.

86

CHAPTER 2 4 State Responsibility and Environmental Regulation

In this regard, the judgment handed down by the Permanent Court of International Justice in the Chorzbw Factory Case cited by the United States and Chile in their respective written presentations, may be taken as enunciating a general rule. The pertinent portion of this judgment reads verbatim as follows: [Rleparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. The Commission has also kept in mind the need to apply the same rules to the members of the families of Orlando Letelier and of Ronni Moffitt, with no differentiation whatever by reason of their nationality.. . . We will start with the Letelier family by first of all examining the amount of the compensation to be paid for the loss of financial support suffered by Mr. Letelier's widow and children. [The Commission then considered the various career paths of Mr. Letelier, inlcuding salary and fringe benefits, along with life expectacy. It excluded potential income from lectures and publications and the value of his household services to his family.] Allowing for the uncertainties which must surround any attempt to predict the course which Mr. Letelier's life would have taken, the Commission decided in all the circumstances to award a sum of one million two hun-

dred thousand dollars (U.S. $1,200,000) as compensation for loss of financial support suffered by Mrs. Isabel Morel de Letelier and her sons as the result of the murder of Orlando Letelier. The Commission agreed on the payment of one hundred sixty thousand dollars (U.S. $160,000) in moral damages to Mrs. Isabel Morel de Letelier and eighty thousand dollars (U.S. $80,000) to each of the couple's four children: Christian, Francisco, Jose, and Juan Pablo. In setting this figure, the Commission took into account, by way of comparison, the amounts granted for moral damages by jurisdictional organs of the inter-American system and those ordered, also in recent years, by arbitration or judicial tribunals. Needless to say, in making these comparisons, the factual differences between the cases that served as a guide in setting these amounts were borne in mind. Lastly, the Commission awarded Mrs. Isabel Morel de Letelier, as reimbursement of medical expenses for health problems resulting from the attack, the amount of sixteen thousand four hundred dollars (U.S. $16,400). . . . [The Commission then made similar determinations with respect to the Moffitt family.] . . . All the figures mentioned above amount to a total of two million six hundred and eleven thousand eight hundred and ninety two dollars (US. $2,611,892), which is the final amount of compensation to be paid by the State of Chile.
CASEPOINT: If state officials are responsible for ill

treatment, the state must be ready to provide reparation to the victims. Victims should be treated at all times with respect, and reparations should take into account their needs and wishes as far as possible. The reparation must, as far as possible, wipe out all consequences of the illegal act and restore the victim's situation to the way it existed prior to committal of the act.

In a concurring opinion, Professor Francisco Orrego Vicuna notes that punitive damages are not accepted as a recognized principle under international law. Note that in the LeteliedMoffitt Case, the tribunal had jurisidction only because of the active intervention of the U.S. government in making a claim diplomatically on the government of Chile, with which it had generally friendly relations. The invocation of the 1914 Bryan-Suarez Mujica Treaty placed the matter before an international commission, but if Chile was determined to deny its treaty obligations, the commission would not have met and no ex gratia payment would have been made.