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Report of the International Law Commission on the work of its fifty-third session
(14) Secondly, paragraph 3 allows for such further consequences of a serious breach as may be provided for by
international law. This may be done by the individual primary rule, as in the case of the prohibition of aggression.
Paragraph 3 accordingly allows that international law may
recognize additional legal consequences flowing from the
commission of a serious breach in the sense of article 40.
The fact that such further consequences are not expressly
referred to in chapter III does not prejudice their recognition in present-day international law, or their further development. In addition, paragraph 3 reflects the conviction that the legal regime of serious breaches is itself in
a state of development. By setting out certain basic legal
consequences of serious breaches in the sense of article
40, article 41 does not intend to preclude the future development of a more elaborate regime of consequences
entailed by such breaches.
Part Three
THE IMPLEMENTATION OF THE INTERNATIONAL
RESPONSIBILITY OF A STATE
Part Three deals with the implementation of State responsibility, i.e. with giving effect to the obligations of
cessation and reparation which arise for a responsible State
under Part Two by virtue of its commission of an internationally wrongful act. Although State responsibility arises
under international law independently of its invocation by
another State, it is still necessary to specify what other
States faced with a breach of an international obligation
may do, what action they may take in order to secure the
performance of the obligations of cessation and reparation on the part of the responsible State. This, sometimes
referred to as the mise-en-oeuvre of State responsibility,
is the subject matter of Part Three. Part Three consists of
two chapters. Chapter I deals with the invocation of State
responsibility by other States and with certain associated
questions. Chapter II deals with countermeasures taken in
order to induce the responsible State to cease the conduct
in question and to provide reparation.
Chapter I
INVOCATION OF THE RESPONSIBILITY
OF A STATE
Commentary
(1) Part One of the articles identifies the internationally
wrongful act of a State generally in terms of the breach
of any international obligation of that State. Part Two defines the consequences of internationally wrongful acts in
the field of responsibility as obligations of the responsible State, not as rights of any other State, person or entity.
Part Three is concerned with the implementation of State
responsibility, i.e. with the entitlement of other States to
invoke the international responsibility of the responsible
State and with certain modalities of such invocation. The
rights that other persons or entities may have arising from
a breach of an international obligation are preserved by
article 33, paragraph 2.
(2) Central to the invocation of responsibility is the concept of the injured State. This is the State whose individual right has been denied or impaired by the internationally wrongful act or which has otherwise been particularly affected by that act. This concept is introduced in article 42 and various consequences are drawn from it in
other articles of this chapter. In keeping with the broad
range of international obligations covered by the articles,
it is necessary to recognize that a broader range of States
may have a legal interest in invoking responsibility and
ensuring compliance with the obligation in question. Indeed, in certain situations, all States may have such an
interest, even though none of them is individually or
specially affected by the breach.664 This possibility is recognized in article 48. Articles 42 and 48 are couched in
terms of the entitlement of States to invoke the responsibility of another State. They seek to avoid problems
arising from the use of possibly misleading terms such
as “direct” versus “indirect” injury or “objective” versus
“subjective” rights.
(3) Although article 42 is drafted in the singular (“an
injured State”), more than one State may be injured by
an internationally wrongful act and be entitled to invoke
responsibility as an injured State. This is made clear by
article 46. Nor are articles 42 and 48 mutually exclusive.
Situations may well arise in which one State is “injured”
in the sense of article 42, and other States are entitled to
invoke responsibility under article 48.
(4) Chapter I also deals with a number of related questions: the requirement of notice if a State wishes to invoke
the responsibility of another (art. 43), certain aspects of
the admissibility of claims (art. 44), loss of the right to invoke responsibility (art. 45), and cases where the responsibility of more than one State may be invoked in relation
to the same internationally wrongful act (art. 47).
(5) Reference must also be made to article 55, which
makes clear the residual character of the articles. In addition
to giving rise to international obligations for States, special
rules may also determine which other State or States are
entitled to invoke the international responsibility arising
from their breach, and what remedies they may seek. This
was true, for example, of article 396 of the Treaty of Versailles, which was the subject of the decision in the S.S.
“Wimbledon” case.665 It is also true of article 33 of the
European Convention on Human Rights. It will be a matter
of interpretation in each case whether such provisions are
intended to be exclusive, i.e. to apply as a lex specialis.
664 Cf. the statement by ICJ that “all States can be held to have a legal
interest” as concerns breaches of obligations erga omnes, Barcelona
Traction (footnote 25 above), p. 32, para. 33, cited in paragraph (2) of
the commentary to chapter III of Part Two.
665 Four States there invoked the responsibility of Germany, at least
one of which, Japan, had no specific interest in the voyage of the S.S.
“Wimbledon” (see footnote 34 above).
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