Bernas Public International Law – STATE RESPONSIBILITY Part 4

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CHAPTER 11: STATE RESPONSIBILITY Part 4

PRELIMINARY OBJECTIONS

  • Claim of denial of justice may be lost due to failure to answer some preliminary objections

a. Lack of nationality link

b. Failure to exhaust national remedies

1. Purpose: to protect international courts from being swamped with cases which are better handled locally

2. Application: cases founded on diplomatic protection or on injury to aliens

REPARATION

1. Obligation to make full reparation for the injury caused by the internationally wrongful act

2. Injury consist of any damage, whether material or moral, arising in consequence of the internationally wrongful act

3. Responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligation

 

 

CHORZOW FACTORY CASE (GERMANY v. POLAND)

Facts:

The action of Poland which the Court has judged is not an expropriation but is a seizure of property which could not be expropriated even against compensation.

Held:

If follows that the compensation due to German Government is not necessarily limited to the value of the undertaking at the moment of disposition, plus interest to the day of payment. Such a limitation might result in placing Germany and the interests protected by Geneva Convention, in a situation more unfavorable than that in which Germany and these interests would have been if Poland had respected the said Convention. Such a consequence would not only be unjust, but also and above all incompatible with the aim of the Convention that is the prohibition of the liquidation of property, rights and interests of German nationals and of companies controlled by German nationals in Upper Silesia.

The essential principle contained in the actual notion of an illegal act is that reparation must wipe out all the consequences of the illegal act and re-establish the situation would have exited if that act had not been committed.

Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of its – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.

CALVO CLAUSE REJECTED

  • A provision in a contract to the effect that under no condition shall the intervention of foreign diplomatic agents in any matter related to the contract be resorted to
  • This was rejected in North American Dredging Company Claim due to the right to seek redress is a sovereign prerogative of a State and a private individual has no right to waive the State’s right

EXPROPRIATION OF ALIEN PROPERTY

  • Expropriation can be internally wrong if it is done contrary to the principles of international law
  • 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources

a. Expropriation shall be based on grounds or reasons of public utility, security or the national inters which are recognized as overriding purely individual or private interests, both domestic and foreign

b. In such cases, the owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law

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