B.COM.L.LB (Hons.)Institute of LawNirma University

FINAL PROJECT

PUBLIC INTERTNATIONAL LAW

Title:- A detailed Analysis of the Responsibility of the States in case of breach of Treaties

Submitted by: -Submitted to:-Shubham JainMs. Bhumika Nanda10bbl026Asst. Professor, ILNU

Abstract

When a treaty is signed by the state by its free consent, it is bound to respect the obligations arising out of that treaty. A state who is a party to the treaty is bound to follow and respect the treaty. A party to the treaty is obliged to make its domestic laws in consonance with the International treaties or laws. A state cannot make any law in contravention to the international treaties in order to avoid or escape from its international obligations arising out of treaties.Now, the question of reparation comes as Stated in Chorzow Factory case in case of breach of an International treaty. The concept of Reparation came into being to compensate or restitute the victim state by the state that has breached the International Treaty. Reparation may be in the form of restitution, compensation and satisfaction etc.In this Paper, the author has tried to cover all the possible steps which can be taken by the aggrieved state if the other state which is the party to the treaty has breached the international treaty. The author has mainly focused upon three kinds of reparation forms namely Restitution, Compensation and Satisfaction. Introduction:-

The responsibility of a state arises if it has committed a breach of treaty obligation. In order to make liable a state for breach of treaty obligation, it should have clearly infringed the terms of treaty provision. Article 26 of the Vienna convention on the Law of treaties provides that: Every treaty in force is binding upon the parties to it and must be performed by them in good faith.[footnoteRef:2] [2: Jennings Robert and Watts Arthur; Oppenheims International Law; Ninth Edition; Pg:1206]

Thus, by virtue of the above mentioned article and also because its a customary rule of international law, international treaties are binding on the state parties which have ratified the same. The international Court of Justice in the case of Chorzow Factory has said it is a principle of international Law that any breach of an engagement involves an obligation to make reparation.According to Blacks Law Dictionary[footnoteRef:3], Reparation may be defined as the act of making amends for wrong or compensation for injury or wrong, esp. for wartime damages for breach of an international obligation. However, the court in the above mentioned case does not restrict the meaning of reparation as awarding compensation to the aggrieved state but observed that it may be in any form like apology, punishment of individuals responsible for unlawful act, repeal of offensive legislation in case domestic law is in violation of ratified international treaty and monetary compensation. [3: Blacks Law Dictionary, Eighth Edition, Bryan A. Garner, Thomson West, pg:1325]

It is the duty to perform its international obligations as mentioned in the treaty failure to which will lead to commencement of proceedings before an international tribunal, instituted by the aggrieved state. Today, most of the treaties contains clause that in the event of breach of treaty, they will resort to some judicial tribunal. The clause may also provide that in case of some other disputes in connection of treaty like in case of interpretation of treaties, recourse to a judicial tribunal will be made by the state parties.An aggrieved state party may also take some retaliatory actions against the other state like economic sanctions and non-cooperation etc.PACTA SUNT SERVANDAThe most frequent means of creating international rules is the conclusion of agreements. These are also called as treaties, conventions, protocols, covenants, and so on.[footnoteRef:4] A major feature of treaties is that they only bind parties to them. [4: Antonio Cassese, International Law, Oxford University Press, Pg:- 126]

According to Pacta Sunt Servanda, states are bound to fulfill the commitments they undertake pursuant to a bilateral or multilateral treaty once it has been ratified.[footnoteRef:5] The obligatory nature of the treaties is based upon the customary international law principle that agreements are binding. The treaties are binding on the States who are a party to it and must be performed by them in good faith[footnoteRef:6]. As this doctrine is based upon good faith, each state who is a party to the treaty shall respect its obligation. Hence, the state should take every fair and possible step to comply with treaty ratified by it. In case of India, as it is a follows dualist approach[footnoteRef:7], a domestic law is needed to be enacted in order to implement the International Treaty. [5: Andrew Solomon, Pacta Sunt Servanda, General Principles of International Law, Available at http://www.judicialmonitor.org/archive_0908/generalprinciples.html, Last visited on 10th April, 2014 ] [6: Article 26 of Vienna Convention on the Law of Treaties, 1969] [7: For States with a dualist system, international law is not directly applicable domestically. It must first be translated into national legislation before it can be applied by the national courts. War crimes trials, for example, can only take place when the national legislation is enacted, unless of course such legislation already exists.]

Besides, Article 27 of the Vienna Convention on the Law of Treaties says that a state cannot take the excuse of failing in complying with the treaty because of municipal laws or internal laws. Therefore, a state is obliged to draft its internal laws in conformity with the treaty signed by it.BREACH OF TREATYWhen a state breaches an international obligation, the concept of reparation comes into being. The Court of International Justice recognized this principle in the case of Chorzow Factory case and said 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.Article 31 of the Articles on State Responsibility mandates the state that has breached the international obligation to make full reparation to the injured party. However, it is to be considered that whether there was an intention of the offender state to breach the international obligations. There can be a situation that domestic laws are framed in such a way that they bar reparation. In such case, domestic laws would be overridden by the international laws.REPARATION:-Article 31 on the Articles on Responsibility of States says that the responsible state is legally and automatically obliged to make "full" reparation for any injury, including any material or moral damage caused by the wrongful act. Further Article 32 provides that the responsible state cannot resort to its municipal laws so as to not to provide reparations.There are several kinds of Reparations ranging from restitution, compensation, and satisfaction, either singly or in combination, accompanied in appropriate cases by interest. Compensation is awarded where reparation is not good and to indemnify quantifiable losses suffered by the injured state. These damages do not include punitive or exemplary damages as they are far beyond the actual damages. Quoting the umpire in the Lusitania case[footnoteRef:8], the commentary says that a remedy should be "commensurate with the loss, so that the injured party may be made whole." [8: 7 R.I.A.A. 32,39 (1923), See Dinah Shelton; Righting Wrongs: Reparations in the Articles on State Responsibility; The American Journal of International Law, Vol. 96, No. 4 (Oct., 2002), pp. 833-856, Available at http://www.jstor.org/stable/3070681, Last visited on 16th April, 2014]

Hence, it can be said that the whole loss should be taken into account suffered by the injured party when making reparation.Sometimes, economic damages like loss of profit are also taken into account when making reparation provided the injured party has established it.FORMS OF REPARATION1. RESTITUTION- The objective of restitution in the ILC Articles is to re-establish the situation which existed before the wrongful act was committed.[footnoteRef:9] Restitution is one of the forms of Reparation which aims to re-establish the situation which existed before the wrongful act was done. It is the first form of reparation after which damages and other reparation kinds are considered. Restitution is rare in now days as the nature of disputes largely relates to expropriation of property by the government from the multinational disputes and here it is very difficult for the state to return the expropriated property to its legitimate owner. [9: Gentian Zyberi, The International Court of Justice and applied forms of reparation for international human rights and humanitarian law violations, Available at http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1749562_code1026637.pdf?abstractid=1749562&mirid=1, Last visited on 15th April, 2014]

In BP Case[footnoteRef:10], the tribunal said that no explicit support for the proposition that specific performance, and even less so restitution in integrum, are remedies of public international law available at the option of a party suffering a wrongful breach by a co-contracting party. The responsibility incurred by the defaulting party for breach of an obligation to perform a contractual undertaking is a duty to pay damages. The concept of restitution in integrum has been employed merely as a vehicle for establishing the amount of damages. [10: 53 ILR (1979) 297]

Hence, what we can infer from this judgment is that there are two remedies of public international law in case of a breach by a co-contracting party and those are specific performance and restitution. It is the duty of the state that is in breach of its international obligation to pay damages to the state which has suffered. The concept of restitution has evolved just for ascertaining the amount of damages which the offender state should pay to the victim state. Further in the Texao Case[footnoteRef:11], arbitrator held that Restitution in kind under international law constituted the normal sanction for non-performance of contractual obligations and that it is inapplicable only to the extent that restoration of the status quo ante is impossible. [11: 53 ILR (1979) 389]

Hence, it can be said that restitution is a kind of sanction for which question arises only when there is a non-performance of the contractual obligations by the other state party and its primary purpose is to re-establish the state in its previous position. However, even if by restitution, certain things cannot be restored as before, restitution is inapplicable only to that extent.Besides, in the case of Gabcikovo-Nagymaros Project[footnoteRef:12], the International Court of Justice said that it is an established principle 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.[footnoteRef:13] [12: [116 ILR 1] 89] [13: Malcom N. Shaw, International Law, Cambridge University Press, 6th Edition ]

Thus, from the judgment in this case, it is clearly established that offender state has to compensate for the damage caused to the victim state provided that wrongful act done by the offender state is an intentional one.2. COMPENSATION OR DAMAGESArticle 36(1) of the articles on State Responsibility says that if the damage caused by the international wrongful act cannot be made good by restitution, then the state responsible is under an obligation to give compensation. Article 36(2) states that if established the compensation should cover all financially assessable damage including loss of profits. This provision is inserted in order to deal with economic losses provided they are proved by the claimant. Compensation is usually calculated on the basis of current market value of the property destroyed or lost. While computing compensation, the kind of property which is lost or destroyed is to be kept in mind. Loss of profits can also be claimed if it is established that the offender state has in some way stopped the victim state to generate income which he would have generated if the property as had not been interfered with the offender state.When Damages are awarded, both material and non-material damages has to be considered. Thus, the damage could consist of actual damages as well as moral damages. In the case of Rainbow Warrior, the arbitrator held An order for the payment of monetary compensation can be made in respect of the breach of international obligations involving serious moral and legal damage, even though is no material damage.[footnoteRef:14] [14: (1990) 82 ILR 499]

Thus, it can be clearly said that monetary compensation involves legal damages, material damages and also moral damages.3. SATISFACTIONIt is a kind of Reparation ranging from official apology, punishment of the guilty officials, and acknowledgement of the unlawful character of the act. This does not include any kind of monetary compensation. Satisfaction as a reparatory measure plays an important role when the harmed party suffered insults, improper treatment or in case of an attack against the head of state or government, diplomatic and consular representatives or its citizens.[footnoteRef:15] [15: Felicia Maxim, Forms of reparation of prejudice in international law reflections on common aspects in the draft regarding the responsibility of the states for internationally wrongful acts , Available at http://www.tribunajuridica.eu/arhiva/An1v1/nr2/art1eng.pdf, Last visited on 22nd April, 2014]

In the New Zealand Arbitration case, the tribunal noted that there is a long established practice of satisfaction going on between the state that has breached its international obligations and the state which has suffered. 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 be in the form of apology, guarantee of non-repetition and acknowledgement of the unlawful character of the act etc. Satisfaction is a very common and good form of reparation in case of territorial disputes. In a case, the court rejected compensation as a suitable form of reparation in the Application of the Genocide Convention case and said that Bosnia was entitled to reparation in the form of satisfaction. Thus, the Court in its judgment stated that Serbia had failed to comply with its obligations under the Genocide Convention. An acknowledgement of wrongdoing was deemed appropriate when Serbias violation consisted of failing to take reasonable measures to prevent genocide rather than direct participation in the crime of genocide.Satisfaction may also be in the form of declaration by the state not to repeat the wrongful act again and giving guarantee for it.In the Armed Activities[footnoteRef:16] case the Court stated that if a state assumes an obligation in an international agreement to respect the sovereignty and territorial integrity of the other States Parties to that agreement and a commitment to cooperate with them in order to fulfill such an obligation, this expresses a clear legally binding undertaking that it will not repeat any wrongful acts. [16: DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA, 2006]

CONCLUSION:

International Treaties are signed by the states expressing their consent to get bound by it. The doctrine of Pacta Sunt Servanda means that International Treaties are binding on the state parties who are a party to the treaty. Hence, if a state has ratified a treaty, it has to respect it. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Hence, every state should attempt to implement the treaty in a best possible manner for instance if we consider the case of India by enacting domestic Laws in relation to that treaty. Also, Municipal Laws are to be framed in consonance with the international treaties. A state cannot revoke to its internal laws if it has failed to perform its international obligations.If a state fails to perform or breaches the treaty, the remedy for the victim state is known as reparation. There are several kinds of Reparations ranging from restitution, compensation, and satisfaction, either singly or in combination, accompanied in appropriate cases by interest.Restitution is one of the forms of Reparation which aims to re-establish the situation which existed before the wrongful act was done. It is the first form of reparation after which damages and other reparation kinds are considered. Restitution is a kind of sanction for which question arises only when there is a non-performance of the contractual obligations by the other state party and its primary purpose is to re-establish the state in its previous position. However, even if by restitution, certain things cannot be restored as before, restitution is inapplicable only to that extent.Now coming to Compensation, it is usually calculated on the basis of current market value of the property destroyed or lost. While computing compensation, the kind of property which is lost or destroyed is to be kept in mind. Loss of profits can also be claimed if it is established that the offender state has in some way stopped the victim state to generate income which he would have generated if the property as had not been interfered with the offender state. When Damages are awarded, both material and non-material damages has to be considered.At last Satisfaction is a kind of Reparation ranging from official apology, punishment of the guilty officials, and acknowledgement of the unlawful character of the act. This does not include any kind of monetary compensation. Satisfaction as a reparatory measure plays an important role when the harmed party suffered insults, improper treatment or in case of an attack against the head of state or government, diplomatic and consular representatives or its citizens.

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