Barcelona Traction

The dictum on the Barcelona Traction case, the International Court of Justice, as the primary judicial organ of the United
Nations, gave rise to the concept of erga omnes obligations in international law. The World Court specifically enumerated
four erga omnes obligations: the outlawing of acts of aggression; the outlawing of genocide; protection from slavery; and
protection from racial discrimination. In this judgment the Court drew a distinction between the erga omnes obligations that
a state has towards the international community as a whole and in whose protection all states have a legal interest, and the
obligations of a state vis-à-vis another state.

Such as the obligation to respect the principle of self-determination in the Case Concerning East Timor and the Advisory
Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, and the erga omnes
obligation prohibiting the use of torture which was recognized by the International Criminal Tribunal for Yugoslavia (here-
inafter, the ICTY) in the Furundzija case.

In international law, the concept of erga omnes obligations refers to specifically determined obligations that states have to-
wards the international community as a whole. Such obligations, as enumerated above, have been determined by the Bar-
celona Traction case, together with other subsequently developed obligations.

The concept of erga omnes appears in international law for the first time in two paragraphs of the judgment in the Barcelona
Traction Case (Second Phase), Belgium v. Spain which the I.C.J. delivered on February 5, 1970. The relevant text of the
paragraphs 33 and 34 follows:

33. In particular, an essential distinction should be drawn between the obligations of a state towards the interna-
tional community as a whole, and those arising vis- a vis another State in the field of diplomatic protection. By their
very nature the former are the concern of all States. In view of the importance of the rights involved, all States can
be held to have a legal interest in their protection; they are obligations erga omens.

34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggres-
sion, and of genocide, as also from the principles and rules concerning the basic rights of human person, including
protection from slavery and racial discrimination.

The case arose out of the adjudication in a bankruptcy case by a Spanish court of the Barcelona Traction Light and Power
Company, Limited, a Canadian company. Belgium filed an application seeking reparation for damages sustained by Bel-
gium nationals, shareholders in the company, as a result of acts contrary to international law committed by organs of the
Spanish state. The Spanish Government raised four preliminary objections to the application (Ragazzi 2002: 3). The court
rejected the first and the second objections concerning the jurisdiction of the court and ruled on the merits of the third and
the fourth objections. The third objection of the Spanish Government was that the Belgium Government lacked capacity to
submit any claim for wrongs done to a Canadian company even if the shareholders were Belgian.

On the third preliminary question, the court reasoned that an injury to the shareholder’s interests did not confer rights on
the shareholder’s national state to exercise diplomatic protection for the purposes of seeking redress. That right is conferred
on the national state of the company alone. No international law rule expressly confers such a right on the shareholder’s
national state. The possession by the Belgian Government of a right of protection was a prerequisite for examination, and
since no jus standi before the Court had been established, it was not for the Court to pronounce upon any other aspect of
the case.

As seen above, since the Court dealt with Belgium’s right to jus standi in seeking compensation for Belgian shareholders,
the erga omnes obligations pronouncement is not strongly related to the merits of the case. This calls for us to first address
briefly the issue of jus standi and actio popularis and, more extensively, the criticisms of the pronouncement
The pronouncement in the Barcelona Traction case is stated in regard to erga omnes obligations in the line of reasoning
related to standing (jus standi), and this raises the issue of the existence of actio popularis in international law.
The concept of actio popularis derives from Roman law and indicates an action brought by a citizen asking the court to
protect a public interest, without any need to show an individual interest in pursuing its claim (Hsiung 2004: 19).

However, the International Court of Justice in the South West Africa case held that proceedings in defence of legal rights
and interests require those rights or interests to be clearly vested in those who claim them and that actio popularis is not
known to international law as it stands at present (Jennings and Watts 1997: 5). Although the concepts of actio popularis and
erga omnes are in some respects associated, the two are distinct and independent of each other.

Other version of Facts:

Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated in Canada, with Toronto headquarters,
that made and supplied electricity in Spain. It had issued bonds to non-Spanish investors, but during the Spanish Civil War
(1936-9) the Spanish government refused to allow BTLP to transfer currency to pay bondholders the interest they were due.
In 1948 a group of bondholders sued in Spain to declare that BTLP had defaulted on the ground it had failed to pay the
interest. The Spanish court allowed their claim. The business was sold, the surplus distributed to the bondholders, and a
small amount was paid to shareholders. The shareholders in Canada succeeded in persuading Canada and other states to
complain that Spain had denied justice and violated a series of treaty obligations. However, Canada eventually accepted
that Spain had the right to prevent BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per
cent were owned by Belgians, and the Belgian government complained, insisting the Spanish government had not acted
properly. They made an initial claim at the International Court of Justice in 1958, but later withdrew it to allow negotiations.
Subsequent negotiations broke down, and a new claim was filed in 1962. Spain contended that Belgium had no standing
because BTLP was a Canadian company.

Case Concerning East Timor

Brief Facts
The Court then gives a short description of the history of the involvement of Portugal and Indonesia in the Terri- tory of
East Timor and of a number of Security Council and General Assembly resolutions concerning the question of East Timor.
It further describes the negotiations between Australia and Indonesia leading to the Treaty of 11 Decem ber 1989, which
created a "Zone of Cooperation . . . in an area between the Indonesian Province of East Timor and Northern Australia".

Other version of Facts: Portugal administered East Timor as a non-self-governing territory under United Nation Chapter
XI. On 27th August 1975, due to internal disturbances caused by factions calling for self-determination, Portugal withdrew
from East Timor. Soon after its departure on 7th of December 1975, Indonesia invaded and incorporated East Timor as part
of its territorial dominion. Later, on 20th of January 1978, Australia acknowledged de facto Indonesia's annexation of East
Timor which was then followed by de jure recognition in the following year.

Facts 3:
a. The International Court of Justice heard this case in 1995, and decided the case by fourteen votes to two.

b. In the Treaty of 1989 between Indonesia and Australia, the two countries negotiated terms of agreements regarding the
exploration and use of resources by both parties found in the area located between the south coast of East Timor and the
northern coast of Australia known as the “Timor Gap.” Portugal argues that Indonesia does not have the authority to enter
into treaties regarding East Timor because Portugal is the legal administrative authority as decreed by the Security Council
of the United Nations. Therefore, Australia has proceeded in unlawful actions against Portugal and against the people of
East Timor and their right to self-determination.

c. The Plaintiff in this case is the Portuguese Republic (Portugal) who argues that when Australia signed the Treaty of 1989
with Indonesia regarding the “Timor Gap,” it did not respect the administrative authority of Portugal concerning East
Timor, and thus, did not respect the right of the people of East Timor to self-determination.

d. The Defendant in this case is the Commonwealth of Australia (Australia) who asserts that Indonesia is the legal authority
concerning East Timor. Thus, there is no dispute between Portugal and Australia because Portugal has no standing to bring
this case. In addition, the Court does not have jurisdiction in this case because Indonesia did not give compulsory jurisdic-
tion to the Court. Therefore, it did not give consent to have matters regarding Indonesia and its territories decided by this
Court.

Summary of Judgment and arguments:

A number of talks took place between Portugal and Australia to resolve the issue concerning undefined continental shelf
between Indonesia and Australian known as the 'Timor Gap'. However, failure to resolve the matter completely resulted in
a treaty between the two countries for exploration and exploitation of natural resources known as the ‘Treaty between
Australia and the Republic of Indonesia on the zone of cooperation in an area between the Indonesian province of East
Timor and Northern Australia.

The Court then considers Australia's principal objection, to the effect that Portugal's Application would require the Court
to determine the rights and obligations of Indonesia. Australia contends that the jurisdiction conferred upon the Court by
the Parties' declarations under Article 36, para- graph 2, of the Statute would not enable the Court to act if, in order to do
so, the Court were required to rule on the law- fulness of Indonesia's entry into and continuing presence in East Timor, on
the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that
Treaty, even if the Court did not have to determine its validity. In support of its argument, it refers to the Court's Judgment
in the case of Monetary Gold Removed

Portugal agrees that if its Application required the Court to decide any of these questions, the Court could not entertain it.
The Parties disagree, however, as to whether the Court is required to decide any of these questions in order to resolve the
dispute referred to it.

Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia, which consists
in having negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that this question is
perfectly separable from any question relating to the lawfulness of the conduct of Indonesia.
Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behavior from that of
Indonesia, the Court concludes that Australia's behavior cannot be assessed without first entering into the question why it
is that Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal allegedly could have done so; the very
subject-matter of the Court's decision would necessarily be a determination whether, having regard to the circumstances in
which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties
on behalf of East Timor relating to the re- sources of its continental shelf. The Court could not make such a determination
in the absence of the consent of Indonesia.

The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights erga omnes
and that accordingly Portugal could require it, individually, to respect them regardless of whether or not another State had
conducted itself in a similarly unlawful manner.

In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from the Charter
of the United Nations and from United Nations practice, has an erga omnes character, is irreproachable. The principle of
self-determination of peoples has been recognized by the Charter and in the jurisprudence of the Court; it is one of the
essential principles of contemporary international law. However, the Court considers that the erga omnes character of a
norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the
Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the case.

The Court goes on to consider another argument of Portugal which, the Court observes, rests on the premise that the United
Nations resolutions, and in particular those of the Security Council, can be read as imposing an obligation on States not to
recognize any authority on the part of Indonesia over East Timor and, where the latter is concerned, to deal only with
Portugal. Portugal maintains that those resolutions would constitute "givens" on the content of which the Court would not
have to decide de novo.

The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a Non-Self-Governing Territory
and its people has the right to self-determination, and that the express reference to Portugal as the "administering Power"
in a number of the above-mentioned resolutions is not at issue between them. The Court finds, however, that it cannot be
inferred from the sole fact that a number of resolutions of the General Assembly and the Security Council refer to Portugal
as the administering Power of East Timor that they intended to establish an obligation on third States to treat exclusively
with Portugal as regards the continental shelf of East Timor. Without prejudice to the question whether the resolutions
under discussion could be binding in nature, the Court considers as a result that they cannot be regarded as "givens" which
constitute a sufficient basis for determining the dispute between the Parties.

It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a prereq-
uisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status as administer-
ing Power, East Timor's status as a Non-Self- Governing Territory and the right of the people of the Territory to self-deter-
mination and to permanent sovereignty over its wealth and natural resources. Indonesia's rights and obligations would
thus constitute the very subject-matter of such a judgment made in the absence of that State's con- sent. Such a judgment
would run directly counter to the "well-established principle of international law embodied in the Court's Statute, namely,
that the Court can only exercise jurisdiction over a State with its consent"

Conclusion
The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on Portu-
gal's claims on the merits, whatever the importance of the questions raised by those claims and of the rules of international
law which they bring into play.

Legal Consequences on Construction of Wall in the Occupied Palestinian Territory

Facts: The wall which Israel (D) constructed on the Palestinian territory and its route impaired the freedom of the Palestin-
ians. The I.C.J. was however asked to provide an advisory opinion on the matter when the U.N. General Assembly (P)
requested Israel (D) to halt and reverse the construction of the wall.

Facts Version 2: In June 2002, Israeli authorities began constructing what they call a “security fence”. The structure itself,
planned to stretch to 687 kilometres in length, varies in different areas. In rural areas, it consists of layers of razor wire,
military patrol roads, sand paths to trace footprints, ditches, surveillance cameras and a three-metre high electric fence. This
barrier is 60-100 metres wide. An additional buffer zone exists 30-100 metres on each side of the barrier/wall. Palestinians
are prohibited from entering this zone, which contains electric fences, trenches, cameras and sensors, and is patrolled by
the Israeli military. There are also reported plans for “depth barriers” 150 metres in length, to be erected a few kilometres
east of the barrier/wall itself. In urban areas, such as Qalqiliya and East Jerusalem, the barrier/wall is constructed of eight-
metre high concrete walls with concrete watchtowers. It is also planned to extend into the Jordan Valley, and will join with
the Western section to form two distinct enclosed Palestinian areas to the North and South of Jerusalem. Jericho will be
encircled, while East Jerusalem will be isolated from the rest of the West Bank on the one hand and cut in two parts in some
areas. A restrictive system of permits and passages through a limited number of gates complements the building of the
barrier/wall and applies solely to the Palestinians. under international law, including international human rights and hu-
manitarian law. It is evident from numerous reports of United Nations agencies, the Special Rapporteur for Human Rights
in the Occupied Palestinian Territories and leading international and local human rights NGOs that the construction of
such a wall seriously hinders the enjoyment of the most fundamental human rights by the Palestinian population and is in
violation of international law.

The barrier/wall in light of the right of people to self-determination

The barrier/wall represents a violation of the Palestinian right to self-determination as affirmed in Article 1(1) common to
the ICCPR and the ICESCR: “people freely determine their political status and freely pursue their economic, social and
cultural development”. The International Court of Justice in the East timor case has considered the right of people to self-
determination as a obligation erga omnes..., meaning that right is opposable to all States in the international community.
Issue:“What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power,
in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretar-
yGeneral, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and
relevant Security Council and General Assembly resolutions ?”

Judgment
155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As the Court
indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all States” and, “In view of
the importance of the rights involved, all States can be held to have a legal interest in their protection.” (Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga omnes
violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its
obligations under international humanitarian law.

156. As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor case, it de-
scribed as “irreproachable” the assertion that “the right of peoples to selfdetermination, as it evolved from the Charter and
from United Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102, para. 29). The Court would also recall
that under the terms of General Assembly resolution 2625 (XXV), already mentioned above (see paragraph 88),

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and
selfdetermination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Na-
tions in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle . . .”
157. With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, it stated that “a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and ‘elementary considerations of humanity’ . . .”, that they are “to be
observed by all States whether or not they have ratified the conventions that contain them, because they constitute intrans-
gressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257, para. 79). In the Court’s view, these rules
incorporate obligations which are essentially of an erga omnes character.

Rainbow Warrior Case

A. Introduction
1 The Rainbow Warrior case is considered a leading precedent in the field of → State responsibility. The role it has played in
theory and practice may appear exaggerated to some observers, given that it is comprised partly of → mediation and partly
of → arbitration, neither of which carry the same authority as a ruling by an international court or tribunal. However, the
Rainbow Warrior case is one of the causes célèbres of the law of State responsibility, and is also referenced with regard to
numerous other areas of international law, including the absence of a superior orders defence in → international criminal
law, the co-application of conventional and customary law, the problem of low-level uses of force, and the importance of
the principle of → good faith (bona fide).

B. Factual Background
2 Since 1966 France had been carrying out nuclear tests in the Mururoa Atoll in French Polynesia (→ Nuclear Tests Cases),
and a new series of tests was planned in 1985. These tests were opposed by the environmental non- governmental organi-
zation Greenpeace, which sent its vessel, Rainbow Warrior, to Auckland, New Zealand in order to protest the French nuclear
activities (→ NonGovernmental Organizations). On 10 July 1985 the ship was lying in Auckland harbour when an explosion
sunk the vessel, killing one person, the Dutch-Portuguese photographer Fernando Pereira. France initially denied any in-
volvement.

3 On 22 September 1985 the Prime Minister of France issued a communiqué confirming that the Rainbow Warrior had been
sunk by agents of the French Directorate General of External Security (‘DGSE’), under orders, and the French Minister for
External Affairs indicated to the Prime Minister of New Zealand that France was ready to undertake → reparations for that
action. The incident also led to the resignation of the French Minister of Defence and the dismissal of the Director-General
of the DGSE.
4 Two agents of the DGSE, Major Mafart and Captain Prieur—who had been posing as Swiss tourists under the names
Alain and Sophie Turenge—were arrested in New Zealand in relation to the incident, and on 4 November 1985 they pleaded
guilty to charges of manslaughter and wilful damage to a ship by means of an explosive. On 22 November 1985 they were
sentenced by the Chief Justice of New Zealand to a term of 10 years’ imprisonment.

5 A dispute arose between New Zealand, which pressed for → compensation, and France, which demanded the release of
the two agents. New Zealand complained that France was threatening to disrupt New Zealand trade with the European
Communities unless the two agents were released (see also → Countermeasures). In June 1986 following an appeal by the
Prime Minister of the Netherlands, the two States referred all the problems between them arising from the Rainbow Warrior
affair to the Secretary-General of the United Nations for a binding ruling (→ Peaceful Settlement of International Disputes).
The two States agreed to be bound by the ruling, which was to be both ‘equitable and principled’ (→ Equity in International
Law; → Ex aequo et bono).

Pronouncements:
• “Rainbow Warrior” case, the arbitral tribunal stressed that “any violation by a State of any obligation, of whatever origin,
gives rise to State responsibility”
• The arbitral tribunal in the “Rainbow Warrior” affair referred to “any violation by a State of any obligation”. In practice,
terms such as “non-execution of international obligations”, “acts incompatible with international obligations”, “violation
of an international obligation” or “breach of an engagement” are also used.
• “Rainbow Warrior” arbitration, the tribunal said that “any violation by a State of any obligation, of whatever origin, gives
rise to State responsibility and consequently, to the duty of reparation”
• the “Rainbow Warrior” arbitration, the tribunal affirmed that “in the field of inter- national law there is no distinction
between contractual and tortious responsibility”
• Similarly, in the “Rainbow Warrior” arbitration, the arbitral tribunal held that, although the relevant treaty obligation had
terminated with the passage of time, France’s responsibility for its earlier breach remained
• For example, the “Rainbow Warrior” arbitration involved the failure of France to detain two agents on the French Pacific
island of Hao for a period of three years, as required by an agreement between France and New Zealand. The arbitral
tribunal referred with approval to the Commission’s draft articles (now amalgamated in article 14) and to the distinction
between instantaneous and continuing wrongful acts, and said:

Applying this classification to the present case, it is clear that the breach consisting in the failure of returning to Hao the
two agents has been not only a material but also a continuous breach. And this classification is not purely theoretical, but,
on the contrary, it has practical consequences, since the seriousness of the breach and its prolongation in time cannot fail to
have considerable bearing on the establishment of the reparation which is adequate for a violation presenting these two
features.

The tribunal went on to draw further legal consequences from the distinction in terms of the duration of French obligations
under the agreement.

• In the “Rainbow Warrior” arbitration, the tribunal held that both the law of treaties and the law of State responsibility
had to be applied, the former to determine whether the treaty was still in force, the latter to determine what the conse-
quences were of any breach of the treaty while it was in force, including the question whether the wrongfulness of the
conduct in question was precluded

• More recently, in the “Rainbow Warrior” arbitration, France relied on force majeure as a circumstance precluding the
wrongfulness of its conduct in removing the officers from Hao and not returning them following medical treatment. The
tribunal dealt with the point briefly:
New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its
applicability is of absolute and material impossibility, and because a circumstance rendering performance more difficult or
burdensome does not constitute a case of force majeure.

• The “Rainbow Warrior” arbitration involved a plea of distress as a circumstance precluding wrongful- ness outside the
context of ships or aircraft. France sought to justify its conduct in removing the two officers from the island of Hao on
the ground of “circumstances of dis- tress in a case of extreme urgency involving elementary humanitarian considera-
tions affecting the acting organs of the State” The tribunal unanimously accepted that this plea was admissible in princi-
ple, and by majority that it was applicable to the facts of one of the two cases. As to the principle, the tribunal required
France to show three things:

(1) The existence of very exceptional circumstances of extreme urgency involving medical or other considerations of an
elementary nature, provided always that a prompt recognition of the existence of those exceptional circumstances is
subsequently obtained from the other interested party or is clearly demonstrated.

(2) The reestablishment of the original situation of compliance with the assignment in Hao as soon as the reasons of emer-
gency invoked to justify the repatriation had disappeared.
6
(3) The existence of a good faith effort to try to obtain the consent of New Zealand in terms of the 1986 Agreement.
In fact, the danger to one of the officers, though perhaps not life-threatening, was real and might have been imminent, and
it was not denied by the New Zealand physician who subsequently examined him. By contrast, in the case of the second off
icer, the justif cations given (the need for medical examination on grounds of pregnancy and the desire to see a dying father)
did not justify emergency action. The lives of the agent and the child were at no stage threatened and there were excellent
medical facili- ties nearby. The tribunal held that:

[C]learly these circumstances entirely fail to justify France’s responsibility for the removal of Captain Prieur and from the
breach of its obligations resulting from the failure to return the two officers to Hao (in the case of Major Mafart once the
reasons for their removal had disappeared). There was here a clear breach of its obligations.

• Article 24 is limited to cases where human life is at stake. The tribunal in the “Rainbow Warrior” arbitration appeared to
take a broader view of the circumstances justifying a plea of distress, apparently accepting that a serious health risk
would suffice. The problem with extending article 24 to less than life-threatening situations is where to place any lower
limit. In situations of distress involving aircraft there will usually be no difficulty in establishing that there is a threat to
life, but other cases present a wide range of possibilities. Given the context of chapter V and the likelihood that there will
be other solutions available for cases which are not apparently life-threatening, it does not seem necessary to extend the
scope of distress beyond threats to life itself. In situations in which a State agent is in distress and has to act to save lives,
there should how- ever be a certain degree of flexibility in the assessment of the conditions of distress. The “no other
reasonable way” criterion in article 24 seeks to strike a balance between the desire to provide some flexibility regarding
the choices of action by the agent in saving lives and the need to confine the scope of the plea having regard to its
exceptional character.

• n the “Rainbow Warrior” arbitration, the arbitral tribunal expressed doubt as to the existence of the excuse of necessity.
It noted that the Commission’s draft article “allegedly authorizes a State to take unlawful action invoking a state of
necessity” and described the Commission’s proposal as “controversial”

• the tribunal in the “Rainbow Warrior” arbitration stressed “two essential conditions intimately linked” for the require-
ment of cessation of wrongful conduct to arise, “namely that the wrongful act has a continuing character and that the
violated rule is still in force at the time in which the order is issued”. While the obligation to cease wrongful conduct will
arise most commonly in the case of a continuing wrongful act, article 30 also encompasses situations where a State has
violated an obligation on a series of occasions, implying the possibility of further repetitions. The phrase “if it is contin-
uing” at the end of subparagraph (a) of the article is intended to cover both situations.

• The “Rainbow Warrior” arbitration it was initially argued that “in the theory of international responsibility, damage is
necessary to provide a basis for liability to make reparation”, but the parties subsequently agreed that:

Unlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a State, entitle the
victim State to receive adequate reparation, even if those acts have not resulted in a pecuniary or material loss for the
claimant State.

The tribunal held that the breach by France had “provoked indignation and public outrage in New Zealand and caused a
new, additional non-material damage ... of a moral, political and legal nature, resulting from the affront to the dignity and
prestige not only of New Zealand as such, but of its highest judicial and executive authorities as well
 Corfu Channel

• Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known,
of the presence of the mines in its territorial waters and did nothing to warn third States of their presence.

• Thus, the basis of responsibility in the Corfu Channel case was Albania’s failure to warn the United Kingdom of the
presence of mines in Albanian waters which had been laid by a third State. Albania’s responsibility in the circumstances
was original and not derived from the wrongfulness of the conduct of any other State.

• In the Corfu Channel case, the damage to the British ships was caused both by the action of a third State in laying the
mines and the action of Albania in failing to warn of their presence. Although, in such cases, the in- jury in question was
effectively caused by a combination of factors, only one of which is to be ascribed to the responsible State, international
practice and the decisions of international tribunals do not support the reduction or attenuation of reparation for con-
current causes, except in cases of contributory fault. In the Corfu Channel case, for example, the United Kingdom recov-
ered the full amount of its claim against Albania based on the latter’s wrongful failure to warn of the mines even though
Albania had not itself laid the mines. Such a result should follow a fortiori in cases where the concurrent cause is not the
act of another State (which might be held separately responsible) but of private individuals, or some natural event such
as a flood.

• In the Corfu Channel case, the United Kingdom sought compensation in respect of three heads of dam- age: replacement
of the destroyer Saumarez, which became a total loss, the damage sustained by the destroyer “Volage”, and the damage
resulting from the deaths and injuries of naval personnel. ICJ entrusted the assessment to expert inquiry. In respect of
the destroyer Saumarez, the Court found that “the true measure of compensation” was “the replacement cost of the [de-
stroyer] at the time of its loss” and held that the amount of compensation claimed by the British Government (£ 700,087)
was justified. For the damage to the destroyer “Volage”, the experts had reached a slightly lower figure than the £ 93,812
claimed by the United Kingdom, “explained by the necessarily approximate nature of the valuation, especially as regards
stores and equipment”. In addition to the amounts awarded for the damage to the two destroyers, the Court upheld the
United Kingdom’s claim for £ 50,048 representing “the cost of pensions and other grants made by it to victims or their
dependents, and for costs of administration, medical treatment, etc.”

• One of the most common modalities of satisfaction provided in the case of moral or non-material injury to the State is a
declaration of the wrongfulness of the act by a competent court or tribunal. The utility of declaratory relief as a form of
satisfaction in the case of non-material injury to a State was affirmed by ICJ in the Corfu Chan- nel case, where the Court,
after finding unlawful a mine- sweeping operation (Operation Retail) carried out by the British Navy after the explosion,
said:

[T]o ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy
constituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through
her Counsel, and is in itself appropriate satisfaction.

This has been followed in many subsequent cases. However, while the making of a declaration by a competent court or
tribunal may be treated as a form of satisfaction in a given case, such declarations are not intrinsically associated with the
remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has the authority to determine the law-
fulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining
the case. Such a declaration may be a preliminary to a decision on any form of reparation, or it may be the only remedy
sought. What the Court did in the Corfu Channel case was to use a declaration as a form of satisfaction in a case where
Albania had sought no other form. Moreover, such a declaration has further advantages: it should be clear and self-con-
tained and will by definition not exceed the scope or limits of satisfaction referred to in paragraph 3 of article 37. A judicial
declaration is not listed in para- graph 2 only because it must emanate from a competent third party with jurisdiction over
a dispute, and the articles are not concerned to specify such a party or to deal with issues of judicial jurisdiction. Instead,
article 37 specifies the acknowledgement of the breach by the responsible State as a modality of satisfaction.

• In the Corfu Channel incident, it appears that Yugoslavia actually laid the mines and would have been responsible for
the damage they caused. ICJ held that Albania was responsible to the United Kingdom for the same damage on the basis
that it knew or should have known of the presence of the mines and of the attempt by the British ships to exercise their
right of transit, but failed to warn the ships. Yet, it was not suggested that Albania’s responsibility for failure to warn
was reduced, let alone precluded, by rea- son of the concurrent responsibility of a third State. In such cases, the respon-
sibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own
international obligations.