R
v.
Director of the Serious Fraud Office
and BAE Systems
[2008] EWHC 714 (Admin), paras. 143 ff.
127
ICJ Reports, 1997, p. 41. In addition, the state could not be the sole judge of whether
these strictly defined conditions had been met. See also the
Construction of a Wall
advisory
opinion, ICJ Reports, 2004, pp. 136, 194–5; 129 ILR, pp. 37, 113–15.
s tat e r e s p o n s i b i l i t y
799
Tribunal for the Law of the Sea discussed the doctrine on the basis of the
ILC draft as approved by the International Court, but found that it did
not apply as no evidence had been produced by Guinea to show that its
essential interests were in grave and imminent peril and, in any event,
Guinea’s interests in maximising its tax revenue from the sale of gas oil
to fishing vessels could be safeguarded by means other than extending its
customs law to parts of the exclusive economic zone.
128
Invocation of state responsibility
129
Article 42 of the ILC Articles stipulates that a state is entitled as an injured
state
130
to invoke
131
the responsibility of another state if the obligation
breached is owed to that state individually or to a group of states, including
that state or the international community as a whole, and the breach of the
obligation specially affects that state or is of such a character as radically to
change the position of all the other states to which the obligation is owed
with respect to the further performance of the obligation. Responsibility
may not be invoked if the injured state has validly waived the claim or is to
be considered as having, by reason of its conduct, validly acquiesced in the
lapse of the claim.
132
Any waiver would need to be clear and unequivocal,
133
while the question of acquiescence would have to be judged carefully in the
light of the particular circumstances.
134
Where several states are injured by
the same wrongful act, each state may separately invoke responsibility,
135
and where several states are responsible, the responsibility of each may be
invoked.
136
128
120 ILR, pp. 143, 191–2.
129
See e.g. Annacker, ‘Part Two’, pp. 214 ff. See also ILC Commentary 2001, p. 294.
130
The provisions concerning the injured state were particularly complex in earlier formu-
lations: see e.g. article 40 of Part II of the ILC Draft Articles of 1996. See also Crawford,
Articles
, pp. 23 ff.
131
I.e. taking measures of a formal kind, such as presenting a claim against another state
or commencing proceedings before an international court or tribunal but not simply
protesting: see ILC Commentary 2001, p. 294.
132
Article 45. See also ILC Commentary 2001, p. 307.
133
See the
Nauru
(
Preliminary Objection
) case, ICJ Reports, 1992, pp. 240, 247; 97 ILR, p. 1.
134
ICJ Reports, 1992, pp. 253–4.
135
Article 46. See also ILC Commentary 2001, p. 311.
136
Article 47. See also ILC Commentary 2001, p. 313, noting that the general rule in inter-
national law is that of separate responsibility of a state for its own wrongful acts. There is
neither a rule of joint and separate responsibility nor a prohibition of this. It will depend
on the circumstances. See the
Eurotunnel
case, 132 ILR, pp. 1, 59–60. Note that the UK
has taken the position that with regard to combined operations in Iraq, ‘each nation
800
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