International law, Sixth edition
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International Law MALCOLM N. SHAW
The consequences of internationally wrongful acts
Cessation The state responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropri- ate assurances and guarantees of non-repetition if circumstances so re- quire. 140 The Tribunal in the Rainbow Warrior case held that in order for cessation to arise, the wrongful act had to have a continuing char- acter and the violated rule must still be in force at the date the order is given. 141 The obligation to offer assurances of non-repetition was raised by Germany and discussed by the Court in the LaGrand case. 142 The Court held that a US commitment to ensure implementation of specific mea- sures was sufficient to meet Germany’s request for a general assurance of non-repetition, 143 while with regard to Germany’s request for specific assurances, the Court noted that should the US fail in its obligation of con- sular notification, it would then be incumbent upon that state to allow the review and reconsideration of any conviction and sentence of a German would be directly liable for the consequences of actions taken by its own forces’, HC Deb., vol. 436, col. 862W, 12 July 2005, UKMIL, 76 BYIL, 2005, p. 875. 137 ICJ Reports, 1970, pp. 3, 32; 46 ILR, p. 178. 138 As per article 30. 139 See ILC Commentary 2001, p. 318. 140 Article 30 and see ILC Commentary 2001, p. 216. See also C. Derman, ‘La Cessation de l’Acte Illicite’, Revue Belge de Droit International Public, 1990 I, p. 477. 141 82 ILR, pp. 499, 573. 142 ICJ Reports, 2001, p. 466; 134 ILR, p. 1. Cf. the Avena (Mexico v. USA) case, ICJ Reports, 2004, pp. 12, 68; 134 ILR, pp. 120, 171. 143 ICJ Reports, 2001, pp. 466, 512–13, 134 ILR, pp. 1, 50–1. This was reaffirmed in the Avena (Mexico v. USA) case, ICJ Reports, 2004, pp. 12, 69; 134 ILR, pp. 120, 172. s tat e r e s p o n s i b i l i t y 801 national taking place in these circumstances by taking account of the violation of the rights contained in the Vienna Convention on Consular Relations. 144 Reparation 145 The basic principle with regard to reparation, or the remedying of a breach of an international obligation for which the state concerned is responsi- ble, 146 was laid down in the Chorz´ow Factory case, where the Permanent Court of International Justice emphasised that, 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 re-establish the situation which would, in all probability, have existed if that act had not been committed. 147 This principle was reaffirmed in a number of cases, including, for ex- ample, by the International Court in the Gabˇc´ıkovo–Nagymaros Project case 148 and in the Genocide Convention (Bosnia v. Serbia) case, 149 and by the International Tribunal for the Law of the Sea in M/V Saiga (No. 2). 150 144 ICJ Reports, 2001, pp. 466, 513–41; 134 ILR, pp. 1, 51–2. See, as to consular notification, above, chapter 13, p. 773. 145 See e.g. M. Whiteman, Damages in International Law, Washington, 3 vols., 1937–43; F. A. Mann, ‘The Consequences of an International Wrong in International and National Law’, 48 BYIL, 1978, p. 1; de Ar´echaga, ‘International Responsibility’, pp. 564 ff., and de Ar´echaga,’International Law in the Past Third of the Century’, 159 HR, 1978, pp. 1, 285–7. See also Cheng, General Principles, pp. 233 ff.; Brownlie, System, part VIII, and C. Gray, Download 7.77 Mb. Do'stlaringiz bilan baham: |
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