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Chapter 8 addresses the manner in which the International Court of Justice interprets and applies satisfaction as a remedy of international law. The definition, function and categories of satisfaction are issues that this chapter addresses, along with its relationship to other remedies of international law, in particular to declaratory judgments. The differences between the manner in which satisfaction is prescribed by the International Law Commission through the Articles on Responsibility of States for Internationally Wrongful Acts and the mechanisms through which the Court grants this remedy generate controversy regarding its availability and applicability before the Court. The Corfu Channel Case is the most often quoted in situations in which satisfaction is considered as granted through the issuance of a declaration of illegality. As such, even if states often request satisfaction as formal apologies to be given by responding states the Court undertakes a different approach.
Chapter 1 addresses the jurisdiction of the Court to grant remedies in situations in which states did not provide an instrument that would confer such powers to it. The competence of the Court to grant remedies, when agreements of states exist in this sense, is established and without controversy, especially because the principle of consent is applicable in these situations. However, the nature of its power to give judgment on the remedies of international law in cases in which its jurisdiction is derived from an agreement that does not include any provision in this respect merits a brief assessment, as without such competence the Court might not have the power to resolve the dispute in a final manner. This chapter analyses the case-law of the Permanent Court of International Justice and of the International Court of Justice in order to determine whether the Court has addressed this issue and the justifications for which it has concluded that it has such competence.
The book seeks to determine the manner in which the International Court of Justice interprets and applies the remedies generally accepted by the international community and codified by the International Law Commission in its Articles on State Responsibility. As such, it seeks to answer the following questions: i) Whether the International Court of Justice adopts a specific approach towards the remedies of international law? and ii) If yes, what are the justifications for this approach? The survey of theoretical perspectives, canvassing academic writings and subjective perspectives featured in the pleadings of the parties to the disputes, and the judgments of the Court, illustrates relevant results. The systematic analysis demonstrates that the Court has a distinct approach to the interpretation and application of remedies available in international law. While the Court is cautious in ordering precise actions from the parties, it appears to prioritise declarations regarding issues of legality.
Chapter 9 addresses the manner in which the case law of international courts and tribunals has influenced the interpretation and application of the remedies of international law before the International Court of Justice. Illustratively, using equity as a tool for awarding compensation for moral damages, the distinction between pecuniary and non-pecuniary satisfaction, are issues that have been dealt with by courts and tribunals such as the International Court of Human Rights or arbitral tribunals that resolved interstate disputes. The Diallo Case confirms that the Court observes the case-law of other bodies that resolve international disputes and this approach is justified, especially because contemporary international law is undergoing a process of fragmentation while the dispute resolution institutions are in a process of proliferation.
Chapter 5 addresses the manner in which the International Court of Justice interprets and applies cessation and assurances and guarantees of non-repetition as remedies of international law. These remedies are treated in a single chapter because they are, to a certain degree, complementary. The definition and function of these remedies and their interaction with each other, and with other remedies of international law, such as specific performance or satisfaction, are issues that clarify their meaning. The manner in which cessation interacts with specific performance, and the relevance of the principle of pacta sunt servanda, clarifies the manner in which this remedy is applied before the International Court of Justice. Further, the distinction between assurances and guarantees of non-repetition and their related formality, as provided by states through their pleadings before the Court and by the judicial body, through its judgments, contribute to the clarification of their substance.
Chapter 6 addresses the manner in which the International Court of Justice interprets and applies restitution in kind as a remedy of international law. First, the chapter clarifies the definition, function and classification of restitution in kind and its relationship and confusion with restitutio in integrum. Further, this chapter analyses the misconceptions, and their effects, regarding the alleged primacy of restitution in kind in international law, as provided by the International Law Commission, through the Articles on Responsibility of States for Internationally Wrongful Acts. The limits of granting restitution in kind, such as the material impossibility of responding states performing this remedy, or the imposition of a disproportionate burden, are relevant aspects that contribute to the clarification of the application of restitution in kind before the International Court of Justice. An in-depth analysis of the Judgment of the Permanent Court of International Justice in the Chorzow Factory Case provides a clear view of the reasons for which the Court issued its findings of principle regarding reparation, restitution in kind and compensation.
The conclusion shows that the International Court has contributed to the interpretation of remedies. Several aspects of the remedies available before the Court have been clarified through its practice and, consequently, states now have more reasonable expectations when they submit a dispute before the Court. The consistency that the Court has demonstrated in its interpretation of the remedies available before it has enhanced predictability in the manner in which the Court applies and clarifies the remedies that are requested by the parties appearing before it. The manner in which the remedies of international law are interpreted and applied is, however, strictly connected with the function of the Court, i.e., that of being the principal judicial organ of the United Nations. Therefore, the fact that the Court observes the manner in which its judgments contribute to the maintenance of international peace influences the application of remedies with respect to the disputes submitted before it.
Chapter 7 addresses the manner in which the International Court of Justice interprets and applies compensation as a remedy of international law. The definition, function and categories of compensation are issues that this chapter addresses, along with its relationship to other remedies of international law, in particular to restitution in kind. Further, the requests that states submit before the Court demonstrate that two main types of requests regarding compensation are usually included in pleadings: requests for determined compensation and requests for undetermined compensation. The mechanisms used by the Court to address compensation for material and/or moral damages and for damages caused directly to states and/or damages caused to individuals are relevant for clarifying this remedy of international law. Through cases such as the Corfu Channel Case, the Diallo Case and the Chorzow Factory Case, the Court has shaped the manner in which compensation is assessed for disputes relating to damages caused to the environment or to addressing moral damages caused to individuals through equitable considerations.