International law, Sixth edition
Download 7.77 Mb. Pdf ko'rish
|
International Law MALCOLM N. SHAW
Republic, Final Award.
173 Ibid., pp. 260 ff. 174 See article 31(2). 175 3 RIAA, p. 1609 (1935); 7 AD, p. 203. 176 74 ILR, pp. 241, 274. 177 See the Arbitral Tribunal in the Rainbow Warrior case, 82 ILR, pp. 499, 574. 178 82 ILR, pp. 499, 575. 179 Ibid. 180 See Annacker, ‘Part Two’, pp. 230 ff.; C. Barthe, ‘R´eflexions sur la Satisfaction en Droit International’, 49 AFDI, 2003, p. 105; de Ar´echaga, ‘International Responsibility’, p. 572; 806 i n t e r nat i o na l l aw arbitration 181 pointed to the long-established practice of states and in- ternational courts of using satisfaction as a remedy for the breach of an international obligation, particularly where moral or legal damage had been done directly to the state. In the circumstances of the case, it con- cluded that the public condemnation of France for its breaches of treaty obligations to New Zealand made by the Tribunal constituted ‘appropriate satisfaction’. 182 The Tribunal also made an interesting ‘Recommendation’ that the two states concerned establish a fund to promote close relations between their respective citizens and additionally recommended that the French government ‘make an initial contribution equivalent to $2 million to that fund’. 183 In some cases, a party to a dispute will simply seek a declaration that the activity complained of is illegal. 184 In territorial disputes, for example, such declarations may be of particular significance. The International Court, however, adopted a narrow view of the Australian submissions in the Nuclear Tests case, 185 an approach that was the subject of a vigorous dissenting opinion. 186 Article 37 of the ILC Articles provides that a state responsible for a wrongful act is obliged to give satisfaction for the injury thereby caused in so far as it cannot be made good by restitution or compensation. Satisfaction may consist of an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. 187 An example of such another modality might be an assurance or guarantee of non-repetition. 188 D. W. Bowett, ‘Treaties and State Responsibility’ in M´elanges Virally, Paris, 1991, pp. 137, 144; and Schwarzenberger, International Law, p. 653. See also the I’m Alone case, 3 RIAA, pp. 1609, 1618 (1935); 7 AD, p. 206 and the Corfu Channel case, ICJ Reports, 1949, pp. 4, 35; 16 AD, pp. 155, 167. 181 82 ILR, p. 499. 182 82 ILR, p. 577. 183 Ibid., p. 578. See also the Genocide Convention (Bosnia v. Serbia), ICJ Reports, 2007, para. 463. 184 See e.g. Certain German Interests in Polish Upper Silesia, PCIJ, Series A, No. 7, p. 18 (1926) and the Corfu Channel case, ICJ Reports, 1949, pp. 4, 35; 16 AD, p. 155. Note also that under article 41 of the European Convention on Human Rights, 1950, the European Court of Human Rights may award ‘just satisfaction’, which often takes the form of a declaration by the Court that a violation of the Convention has taken place: see e.g. the Neumeister case, European Court of Human Rights, Series A, No. 17 (1974); 41 ILR, p. 316. See also the Pauwels case, ibid., No. 135 (1989); the Lamy case, ibid., No. 151 (1989) and the Huber case, ibid., No. 188 (1990). 185 ICJ Reports, 1974, p. 253; 57 ILR, p. 398. 186 ICJ Reports, 1974, pp. 312–19; 57 ILR, p. 457. 187 See ILC Commentary 2001, p. 263. Satisfaction is not to be disproportionate to the injury and not in a form which is humiliating to the responsible state, article 37(3). 188 See above, p. 800. |
Ma'lumotlar bazasi mualliflik huquqi bilan himoyalangan ©fayllar.org 2024
ma'muriyatiga murojaat qiling
ma'muriyatiga murojaat qiling