State responsibility
considered for that purpose as making up a community of
States of a functional character.
(12) Subparagraph (b) (i) stipulates that a State is injured if it is “specially affected” by the violation of a collective obligation. The term “specially affected” is taken
from article 60, paragraph (2) (b), of the 1969 Vienna
Convention. Even in cases where the legal effects of an
internationally wrongful act extend by implication to the
whole group of States bound by the obligation or to the
international community as a whole, the wrongful act may
have particular adverse effects on one State or on a small
number of States. For example a case of pollution of the
high seas in breach of article 194 of the United Nations
Convention on the Law of the Sea may particularly impact on one or several States whose beaches may be polluted by toxic residues or whose coastal fisheries may be
closed. In that case, independently of any general interest
of the States parties to the Convention in the preservation
of the marine environment, those coastal States parties
should be considered as injured by the breach. Like article 60, paragraph (2) (b), of the 1969 Vienna Convention,
subparagraph (b) (i) does not define the nature or extent
of the special impact that a State must have sustained in
order to be considered “injured”. This will have to be assessed on a case-by-case basis, having regard to the object
and purpose of the primary obligation breached and the
facts of each case. For a State to be considered injured,
it must be affected by the breach in a way which distinguishes it from the generality of other States to which the
obligation is owed.
(13) In contrast, subparagraph (b) (ii) deals with a special category of obligations, the breach of which must be
considered as affecting per se every other State to which
the obligation is owed. Article 60, paragraph 2 (c), of the
1969 Vienna Convention recognizes an analogous category of treaties, viz. those “of such a character that a
material breach of its provisions by one party radically
changes the position of every party with respect to the
further performance of its obligations”. Examples include
a disarmament treaty,674 a nuclear-free zone treaty, or any
other treaty where each party’s performance is effectively
conditioned upon and requires the performance of each
of the others. Under article 60, paragraph 2 (c), any State
party to such a treaty may terminate or suspend it in its
relations not merely with the responsible State but generally in its relations with all the other parties.
(14) Essentially, the same considerations apply to obligations of this character for the purposes of State responsibility. The other States parties may have no interest in
the termination or suspension of such obligations as distinct from continued performance, and they must all be
considered as individually entitled to react to a breach.
This is so whether or not any one of them is particularly
affected; indeed they may all be equally affected, and none
may have suffered quantifiable damage for the purposes
of article 36. They may nonetheless have a strong interest
in cessation and in other aspects of reparation, in particular restitution. For example, if one State party to the Ant674 The example given in the commentary of the Commission to what
became article 60: Yearbook … 1966, vol. II, p. 255, document A/6309/
Rev.1, para. (8).
119
arctic Treaty claims sovereignty over an unclaimed area
of Antarctica contrary to article 4 of that Treaty, the other
States parties should be considered as injured thereby and
as entitled to seek cessation, restitution (in the form of the
annulment of the claim) and assurances of non-repetition
in accordance with Part Two.
(15) The articles deal with obligations arising under international law from whatever source and are not confined
to treaty obligations. In practice, interdependent obligations covered by subparagraph (b) (ii) will usually arise
under treaties establishing particular regimes. Even under
such treaties it may not be the case that just any breach of
the obligation has the effect of undermining the performance of all the other States involved, and it is desirable that
this subparagraph be narrow in its scope. Accordingly, a
State is only considered injured under subparagraph (b)
(ii) if the breach is of such a character as radically to affect the enjoyment of the rights or the performance of the
obligations of all the other States to which the obligation
is owed.
Article 43. Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of its claim to that
State.
2. The injured State may specify in particular:
(a) the conduct that the responsible State should
take in order to cease the wrongful act, if it is continuing;
(b) what form reparation should take in accordance with the provisions of Part Two.
Commentary
(1) Article 43 concerns the modalities to be observed by
an injured State in invoking the responsibility of another
State. The article applies to the injured State as defined in
article 42, but States invoking responsibility under article
48 must also comply with its requirements.675
(2) Although State responsibility arises by operation of
law on the commission of an internationally wrongful act
by a State, in practice it is necessary for an injured State
and/or other interested State(s) to respond, if they wish to
seek cessation or reparation. Responses can take a variety
of forms, from an unofficial and confidential reminder
of the need to fulfil the obligation through formal protest, consultations, etc. Moreover, the failure of an injured
State which has notice of a breach to respond may have legal consequences, including even the eventual loss of the
right to invoke responsibility by waiver or acquiescence:
this is dealt with in article 45.
(3) Article 43 requires an injured State which wishes to
invoke the responsibility of another State to give notice of
its claim to that State. It is analogous to article 65 of the
1969 Vienna Convention. Notice under article 43 need not
675
See article 48, paragraph (3), and commentary.
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