International law, Sixth edition
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International Law MALCOLM N. SHAW
Judicial Remedies in International Law, Oxford, 1987.
146 See e.g. C. Dominic´e, ‘Observations sur les Droits de l’ ´Etat Victime d’un Fiat Interna- tionalement Illicite’ in Droit International (ed. P. Weil), Paris, 1982, vol. I, p. 25, and B. Graefrath, ‘Responsibility and Damage Caused: Relationship between Responsibility and Damage’, HR, 1984 II, pp. 19, 73 ff. 147 PCIJ, Series A, No. 17, 1928, pp. 47–8. In an earlier phase of the case, the Court stated that, ‘It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indis- pensable complement of a failure to apply a convention’, PCIJ, Series A, No. 9, 1927, p. 21. See also the Iranian Hostages case, ICJ Reports, 1980, pp. 3, 45; 61 ILR, pp. 530, 571, where the Court held that Iran was under a duty to make reparation to the US. 148 ICJ Reports, 1997, pp. 7, 80; 116 ILR, p. 1. 149 ICJ Reports, 2007, para. 460. See also the Construction of a Wall advisory opinion, ICJ Reports, 2004, pp. 136, 198; 129 ILR, pp. 37, 117–18 and Democratic Republic of the Congo v. Uganda, ICJ Reports, 2005, pp. 168, 257. 150 120 ILR, pp. 143, 199. See also S.D. Myers v. Canada 121 ILR, pp. 72, 127–8; Aloeboetoe v. Suriname, Inter-American Court of Human Rights, 1993, Series C, No. 15 at para. 43; 116 ILR, p. 260; Loayza Tamayo v. Peru (Reparations), Inter-American Court of Human 802 i n t e r nat i o na l l aw Article 31 of the Articles on State Responsibility provides that the respon- sible state is under an obligation to make full reparation for the injury caused by the internationally wrongful act and that injury includes any damage, whether material or moral, caused by the internationally wrong- ful act of a state. The obligation to make reparation is governed in all its aspects by international law, irrespective of domestic law provisions. 151 Article 34 provides that full reparation for the injury caused by the inter- nationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination. 152 Restitution in kind is the obvious method of performing the reparation, since it aims to re-establish the situation which existed before the wrong- ful act was committed. 153 While restitution has occurred in the past, 154 it is more rare today, if only because the nature of such disputes has changed. A large number of cases now involve expropriation disputes, where it is politically difficult for the state concerned to return expropriated prop- erty to multinational companies. 155 Recognising some of these problems, article 35 provides for restitution as long as and to the extent that it is not Rights, 1998, Series C, No. 42 at para. 84; 116 ILR, p. 388, and Suarez-Rosero v. Ecuador (Reparations), Inter-American Court of Human Rights, 1999, Series C, No. 44 at para. 39; 118 ILR, p. 92, regarding this as ‘one of the fundamental principles of general international law, repeatedly elaborated upon by the jurisprudence’. See also the decision of 14 March 2003 of an UNCITRAL Arbitral Tribunal in CME Czech Republic BV v. The Czech Republic, Final Award. 151 See e.g. Suarez-Rosero v. Ecuador (Reparations), Inter-American Court of Human Rights, 1999, Series C, No. 44 at para. 42; 118 ILR, p. 92. See also article 32 of the ILC Articles. 152 See also ILC Commentary 2001, p. 235 and Suarez-Rosero v. Ecuador (Reparations), Inter- American Court of Human Rights, 1999, Series C, No. 44 at para. 42; 118 ILR, p. 92. Note further that interest is payable on any principal sum payable when necessary to achieve full reparation and will run from the date the principal sum should have been paid until the date it is paid, article 38 and see ILC Commentary 2001, p. 268. Article 39 provides that in the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the injured state or any person or entity in relation to whom reparation is sought: see also ILC Commentary 2001, p. 275 and the Download 7.77 Mb. Do'stlaringiz bilan baham: |
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