Public International Law Content
Basic obligation of compliance with international law, which in principle remains due in spite of any breaches. Cessation is required, not as means of reparation but as an independent obligation, whenever the obligation in question continues to exist.
The function of reparation is, as far as possible, the restoration of relations reflected in the status quo ante. (that is relations that existed before the internationally wrongful act). See Factory at Chorzow Case, PCIJ
“the essential principle contained in the actual notion of an illegal act…is that reparation must, as far as possible, wipe out all the consequences of the illegal act and restablish the situation which would, in all probability, have existed if taht act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.”
- Restitution in Kind
Generally in the form of pecuniary claims in international arbitration.
Restitution in integrum (satisfaction)
- May simply mean declaratory judgement finding violation of international law.
- Sometimes payment of damages may encourage impunity, in such cases international courts and tribunals resort to specific restitution.
- However, restitution may become inflexible in some cases. In those cases, also provided in article 35 of the ARSIWA, restitution in kind or damages should be preferred.
- See, Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) ICJ 2002, the ICJ recognized that a mere declaration of unlawfulness under international law would be insufficient and considered that Belgium was under an obligation to cancel the arrest warrant issued illegally.
- In Avena and Other Mexican Nationals (Mexico v US) ICJ Reports 2004, the ICJ rejected to order the cancellation of the death sentences passed to Mexican citizens without consular access. It merely established that the US was under an obligation to provide means for review and reconsideration of sentences issued in violation of the Vienna Convention on Consular Relations.
- Article 36, whenever restitution is not possible compensation becomes the standard consequence for injury, covering ‘any financially assessable damage including loss of profits.’
- In Gabcikovo-Nagymaros Project Case, the ICJ held that “it is well-established rule of international law that an injured state is entitled to obtain compensation from the state which has committed an internationally wrongful act for the damage caused by it.’
- The ICJ has seldom awarded damage, only in the SS Wimbledon (PCIJ), Corfu Channel and Ahmadou Sadio Diallo Cases the court has awarded damages.
- Rule of remoteness, proximate cause, measure of damages are applicable in international law too.
- “Moral damages” see article 31, 36. Similar to punitive damage in domestic law. For example, in case of foreign incursion into the territory or airspace of another state.
- A form of restitution. See article 37.
- How the intention or the purpose of satisfaction and restitution, particularly compensation, differ.
- That is, if it is predominantly that of seeking a token of regret and acknowledgement of wrongdoing then it is a matter of satisfaction.
- It may take various forms:
- Apologies or other acknowledgement of wrongdoing (payment of indemnity, saluting of the flag etc) (See Rainbow Warrior affair, where the Secretary General of the UN asked the French Prime Minister to offer unconditional and unqualified apologies to the Prime Minister of New Zealand.
- The trial and punishment of the individual or (Rainbow Warrior, French officers were tried and sentenced in an isolated island for a period of three years by France)
- The taking of measures to prevent a recurrence of the harm.
- Satisfaction may also take declaratory judgement. This is the most common form of remedy offered by the ICJ. See, US Diplomatic and Consular Staff in Tehran Case, Nicaragua Case, etc
C. Violation of peremptory norms
Article 40 and 41.
Provide additional consequences in case of a serious breach of international law.
According to article 41, three consequences flow from the serious breach of international law:
- All states are to cooperate through lawful means to bring an end to the violation
- All states must refrain from recognizing as lawful the situation created thereby
- No state may aid or assist the wrongdoer in maintaining the unlawful situation.
D. Invocation of State Responsibility
Legal Interest/Material Interest
No actio popularis
Obligation erga omnes