118
Report of the International Law Commission on the work of its fifty-third session
dependent” obligation.669 In each of these cases, the possible suspension or termination of the obligation or of its
performance by the injured State may be of little value to
it as a remedy. Its primary interest may be in the restoration of the legal relationship by cessation and reparation.
(6) Pursuant to subparagraph (a) of article 42, a State is
“injured” if the obligation breached was owed to it individually. The expression “individually” indicates that in the
circumstances, performance of the obligation was owed
to that State. This will necessarily be true of an obligation arising under a bilateral treaty between the two States
parties to it, but it will also be true in other cases, e.g. of
a unilateral commitment made by one State to another. It
may be the case under a rule of general international law:
thus, for example, rules concerning the non-navigational
uses of an international river which may give rise to individual obligations as between one riparian State and another. Or it may be true under a multilateral treaty where
particular performance is incumbent under the treaty as
between one State party and another. For example, the
obligation of the receiving State under article 22 of the
Vienna Convention on Diplomatic Relations to protect the
premises of a mission is owed to the sending State. Such
cases are to be contrasted with situations where performance of the obligation is owed generally to the parties to
the treaty at the same time and is not differentiated or individualized. It will be a matter for the interpretation and
application of the primary rule to determine into which of
the categories an obligation comes. The following discussion is illustrative only.
(7) An obvious example of cases coming within the
scope of subparagraph (a) is a bilateral treaty relationship. If one State violates an obligation the performance
of which is owed specifically to another State, the latter is
an “injured State” in the sense of article 42. Other examples include binding unilateral acts by which one State assumes an obligation vis-à-vis another State; or the case of
a treaty establishing obligations owed to a third State not
party to the treaty.670 If it is established that the beneficiaries of the promise or the stipulation in favour of a third
State were intended to acquire actual rights to performance of the obligation in question, they will be injured
by its breach. Another example is a binding judgement
of an international court or tribunal imposing obligations
on one State party to the litigation for the benefit of the
other party.671
(8) In addition, subparagraph (a) is intended to cover
cases where the performance of an obligation under a
multilateral treaty or customary international law is owed
to one particular State. The scope of subparagraph (a)
in this respect is different from that of article 60, paragraph 1, of the 1969 Vienna Convention, which relies on
the formal criterion of bilateral as compared with multilat669 The notion of “integral” obligations was developed by Fitzmaurice as Special Rapporteur on the Law of Treaties: see Yearbook …
1957, vol. II, p. 54. The term has sometimes given rise to confusion,
being used to refer to human rights or environmental obligations which
are not owed on an “all or nothing” basis. The term “interdependent
obligations” may be more appropriate.
670 Cf. the 1969 Vienna Convention, art. 36.
671 See, e.g., Article 59 of the Statute of ICJ.
eral treaties. But although a multilateral treaty will characteristically establish a framework of rules applicable to
all the States parties, in certain cases its performance in a
given situation involves a relationship of a bilateral character between two parties. Multilateral treaties of this kind
have often been referred to as giving rise to “ ‘bundles’ of
bilateral relations”.672
(9) The identification of one particular State as injured
by a breach of an obligation under the Vienna Convention
on Diplomatic Relations does not exclude that all States
parties may have an interest of a general character in compliance with international law and in the continuation of
international institutions and arrangements which have
been built up over the years. In the United States Diplomatic and Consular Staff in Tehran case, after referring to
the “fundamentally unlawful character” of the Islamic Republic of Iran’s conduct in participating in the detention of
the diplomatic and consular personnel, the Court drew:
the attention of the entire international community, of which Iran itself
has been a member since time immemorial, to the irreparable harm that
may be caused by events of the kind now before the Court. Such events
cannot fail to undermine the edifice of law carefully constructed by
mankind over a period of centuries, the maintenance of which is vital
for the security and well-being of the complex international community
of the present day, to which it is more essential than ever that the rules
developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected.673
(10) Although discussion of multilateral obligations
has generally focused on those arising under multilateral
treaties, similar considerations apply to obligations under
rules of customary international law. For example, the
rules of general international law governing the diplomatic or consular relations between States establish bilateral
relations between particular receiving and sending States,
and violations of these obligations by a particular receiving State injure the sending State to which performance
was owed in the specific case.
(11) Subparagraph (b) deals with injury arising from
violations of collective obligations, i.e. obligations that
apply between more than two States and whose performance in the given case is not owed to one State individually, but to a group of States or even the international
community as a whole. The violation of these obligations
only injures any particular State if additional requirements
are met. In using the expression “group of States”, article
42, subparagraph (b), does not imply that the group has
any separate existence or that it has separate legal personality. Rather, the term is intended to refer to a group of
States, consisting of all or a considerable number of States
in the world or in a given region, which have combined
to achieve some collective purpose and which may be
672 See, e.g., K. Sachariew, “State responsibility for multilateral
treaty violations: identifying the ‘injured State’ and its legal status”,
Netherlands International Law Review, vol. 35, No. 3 (1988), p. 273,
at pp. 277–278; B. Simma, “Bilateralism and community interest in the
law of State responsibility”, International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, Y. Dinstein, ed. (Dordrecht,
Martinus Nijhoff, 1989), p. 821, at p. 823; C. Annacker, “The legal
régime of erga omnes obligations in international law”, Austrian
Journal of Public and International Law, vol. 46, No. 2 (1994), p. 131,
at p. 136; and D. N. Hutchinson, “Solidarity and breaches of multilateral treaties”, BYBIL, 1988, vol. 59, p. 151, at pp. 154–155.
673 United States Diplomatic and Consular Staff in Tehran (see footnote 59 above), pp. 41–43, paras. 89 and 92.
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