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.
s tat e r e s p o n s i b i l i t y
807
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