Is International Law Effective Part 3: Obligations on states for Breaching International Law

By Aoibhín Spriggs - Law Student @ St Catharine’s College, Cambridge

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In the previous article in this series, we discussed the general rule that states cannot use force. If they do so without justification, they have breached international law. This is just one of the many ways a state may breach international law, and in this article, we explore some of the obligations of states when they do breach international law.

First, the details of state responsibility can be found in the ILC Articles on Responsibility of States for Internationally Wrongful Acts, part of which codifies customary international law, and part of which is a progressive development.

If a state is found to be in breach of international law, they have several obligations. First, under Article 30, they must cease that act if it is continuing. For example, when Israel was building a wall in the occupied Palestinian territory, the ICJ held in the Wall Advisory Opinion that they had the obligation to cease construction.

States must also offer appropriate assurances and guarantees of non-repetition. For example, if Russia were found to be in breach of international law because of their invasion of Ukraine, they would have to withdraw and guarantee that it would not happen again- this could be satisfied through an international agreement to respect their sovereignty or a treaty with Ukraine.

The state in breach must also give full reparation for the injury under Article 31. This may come in several different forms. First, there may be a responsibility to restitution - this is an obligation to establish the situation which existed before the wrongful act was committed, and as far as possible wipe out all the consequences of the illegal act. This may include returning land and other immovable property seized. This however may not be possible in all cases or may not be a proportionate compensation.

Secondly, then, there may be an obligation to give compensation- a monetary form of reparation for financially assessable damage. This includes harm other than a material injury, which may include mental suffering, distress, tampering with the victim’s core memories, and changes of a non-pecuniary nature in the person’s everyday life. There may also be a responsibility for satisfaction, which may consist of an acknowledgement of the breach, an expression of regret, a formal apology, or another appropriate response.

Finally, there may also be legal consequences for states other than the author of the wrongful act. This is only the case if the breach is a peremptory norm of international law, and the breach must be a serious failure by the responsible state to fulfil the obligation. Other states then have the obligation to cooperate to bring the serious breach to an end through lawful means- this may include sanctions on the responsible state and other diplomatic efforts. Further, states have a duty not to recognise as lawful the situation created by a serious breach, and a duty not to render aid or assistance in maintaining the situation created through the breach, both of which were recognised in the Wall Advisory Opinion.

Further Reading:

1. Articles on State Responsibility

2. Summary of the Wall Advisory Opinion, you may wish to focus on the consequences of the violations

3. https://www.icj-cij.org/en/case/131

Keywords:

Peremptory norm- (also known as a jus cogens norm) is a fundamental principle of international law accepted by the international community as a norm from which no derogation is permitted

Codifies- collects together laws into a system

Progressive development- progressing the law by steps, the law is not found in customary international law