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B.COM.L.LB (Hons.)
I nstitute of Law
Nirma University


FI NAL PROJ ECT
PUBLI C I NTERTNATI ONAL LAW



Title:- A detailed Analysis of the Responsibility of
the States in case of breach of Treaties
















Submitted by: - Submitted to:-
Shubham J ain Ms. Bhumika Nanda
10bbl026 Asst. Professor, I LNU


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Abstract

When a treaty is signed by the state by its free consent, it is bound to respect the obligations
arising out of that treaty. A state who is a party to the treaty is bound to follow and respect the
treaty. A party to the treaty is obliged to make its domestic laws in consonance with the
International treaties or laws. A state cannot make any law in contravention to the international
treaties in order to avoid or escape from its international obligations arising out of treaties.
Now, the question of reparation comes as Stated in Chorzow Factory case in case of breach of an
International treaty. The concept of Reparation came into being to compensate or restitute the
victim state by the state that has breached the International Treaty. Reparation may be in the
form of restitution, compensation and satisfaction etc.
In this Paper, the author has tried to cover all the possible steps which can be taken by the
aggrieved state if the other state which is the party to the treaty has breached the international
treaty. The author has mainly focused upon three kinds of reparation forms namely Restitution,
Compensation and Satisfaction.

I ntroduction:-

The responsibility of a state arises if it has committed a breach of treaty obligation. In order to
make liable a state for breach of treaty obligation, it should have clearly infringed the terms of
treaty provision. Article 26 of the Vienna convention on the Law of treaties provides that: Every
treaty in force is binding upon the parties to it and must be performed by them in good faith.
1

Thus, by virtue of the above mentioned article and also because its a customary rule of
international law, international treaties are binding on the state parties which have ratified the
same.
The international Court of Justice in the case of Chorzow Factory has said it is a principle of
international Law that any breach of an engagement involves an obligation to make reparation.

1
Jennings Robert and Watts Arthur; Oppenheims International Law; Ninth Edition; Pg:1206
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According to Blacks Law Dictionary
2
, Reparation may be defined as the act of making amends
for wrong or compensation for injury or wrong, esp. for wartime damages for breach of an
international obligation. However, the court in the above mentioned case does not restrict the
meaning of reparation as awarding compensation to the aggrieved state but observed that it
may be in any form like apology, punishment of individuals responsible for unlawful act, repeal
of offensive legislation in case domestic law is in violation of ratified international treaty and
monetary compensation.
It is the duty to perform its international obligations as mentioned in the treaty failure to which
will lead to commencement of proceedings before an international tribunal, instituted by the
aggrieved state. Today, most of the treaties contains clause that in the event of breach of treaty,
they will resort to some judicial tribunal. The clause may also provide that in case of some other
disputes in connection of treaty like in case of interpretation of treaties, recourse to a judicial
tribunal will be made by the state parties.
An aggrieved state party may also take some retaliatory actions against the other state like
economic sanctions and non-cooperation etc.
PACTA SUNT SERVANDA
The most frequent means of creating international rules is the conclusion of agreements. These
are also called as treaties, conventions, protocols, covenants, and so on.
3
A major feature of
treaties is that they only bind parties to them.
According to Pacta Sunt Servanda, states are bound to fulfill the commitments they undertake
pursuant to a bilateral or multilateral treaty once it has been ratified.
4
The obligatory nature of
the treaties is based upon the customary international law principle that agreements are binding.
The treaties are binding on the States who are a party to it and must be performed by them in
good faith
5
. As this doctrine is based upon good faith, each state who is a party to the treaty shall
respect its obligation. Hence, the state should take every fair and possible step to comply with

2
Blacks Law Dictionary, Eighth Edition, Bryan A. Garner, Thomson West, pg:1325
3
Antonio Cassese, International Law, Oxford University Press, Pg:- 126
4
Andrew Solomon, Pacta Sunt Servanda, General Principles of International Law, Available at
http://www.judicialmonitor.org/archive_0908/generalprinciples.html, Last visited on 10
th
April, 2014
5
Article 26 of Vienna Convention on the Law of Treaties, 1969
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treaty ratified by it. In case of India, as it is a follows dualist approach
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, a domestic law is needed
to be enacted in order to implement the International Treaty.
Besides, Article 27 of the Vienna Convention on the Law of Treaties says that a state cannot take
the excuse of failing in complying with the treaty because of municipal laws or internal laws.
Therefore, a state is obliged to draft its internal laws in conformity with the treaty signed by it.
BREACH OF TREATY
When a state breaches an international obligation, the concept of reparation comes into being.
The Court of International Justice recognized this principle in the case of Chorzow Factory case
and said The essential principle contained in the actual notion of an illegal act is that reparation
must, as far as possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.
Article 31 of the Articles on State Responsibility mandates the state that has breached the
international obligation to make full reparation to the injured party. However, it is to be
considered that whether there was an intention of the offender state to breach the international
obligations. There can be a situation that domestic laws are framed in such a way that they bar
reparation. In such case, domestic laws would be overridden by the international laws.
REPARATI ON:-
Article 31 on the Articles on Responsibility of States says that the responsible state is legally and
automatically obliged to make "full" reparation for any injury, including any material or moral
damage caused by the wrongful act. Further Article 32 provides that the responsible state cannot
resort to its municipal laws so as to not to provide reparations.
There are several kinds of Reparations ranging from restitution, compensation, and satisfaction,
either singly or in combination, accompanied in appropriate cases by interest. Compensation is
awarded where reparation is not good and to indemnify quantifiable losses suffered by the

6
For States with a dualist system, international law is not directly applicable domestically. It must first be
translated into national legislation before it can be applied by the national courts. War crimes trials, for example, can
only take place when the national legislation is enacted, unless of course such legislation already exists.
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injured state. These damages do not include punitive or exemplary damages as they are far
beyond the actual damages.
Quoting the umpire in the Lusitania case
7
, the commentary says that a remedy should be
"commensurate with the loss, so that the injured party may be made whole."
Hence, it can be said that the whole loss should be taken into account suffered by the injured
party when making reparation.
Sometimes, economic damages like loss of profit are also taken into account when making
reparation provided the injured party has established it.
FORMS OF REPARATI ON
1. RESTI TUTI ON-
The objective of restitution in the ILC Articles is to re-establish the situation which existed
before the wrongful act was committed.
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Restitution is one of the forms of Reparation which
aims to re-establish the situation which existed before the wrongful act was done. It is the first
form of reparation after which damages and other reparation kinds are considered. Restitution is
rare in now days as the nature of disputes largely relates to expropriation of property by the
government from the multinational disputes and here it is very difficult for the state to return the
expropriated property to its legitimate owner.
In BP Case
9
, the tribunal said that no explicit support for the proposition that specific
performance, and even less so restitution in integrum, are remedies of public international law
available at the option of a party suffering a wrongful breach by a co-contracting party. The
responsibility incurred by the defaulting party for breach of an obligation to perform a

7
7 R.I.A.A. 32,39 (1923), See Dinah Shelton; Righting Wrongs: Reparations in the Articles on State
Responsibility; The American Journal of International Law, Vol. 96, No. 4 (Oct., 2002), pp. 833-856, Available at
http://www.jstor.org/stable/3070681, Last visited on 16
th
April, 2014
8
Gentian Zyberi, The International Court of Justice and applied forms of reparation for international human rights
and humanitarian law violations, Available at
http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1749562_code1026637.pdf?abstractid=1749562&mirid=1, Last
visited on 15
th
April, 2014
9
53 ILR (1979) 297
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contractual undertaking is a duty to pay damages. The concept of restitution in integrum has
been employed merely as a vehicle for establishing the amount of damages.
Hence, what we can infer from this judgment is that there are two remedies of public
international law in case of a breach by a co-contracting party and those are specific performance
and restitution. It is the duty of the state that is in breach of its international obligation to pay
damages to the state which has suffered. The concept of restitution has evolved just for
ascertaining the amount of damages which the offender state should pay to the victim state.
Further in the Texao Case
10
, arbitrator held that Restitution in kind under international law
constituted the normal sanction for non-performance of contractual obligations and that it is
inapplicable only to the extent that restoration of the status quo ante is impossible.
Hence, it can be said that restitution is a kind of sanction for which question arises only when
there is a non-performance of the contractual obligations by the other state party and its primary
purpose is to re-establish the state in its previous position. However, even if by restitution,
certain things cannot be restored as before, restitution is inapplicable only to that extent.
Besides, in the case of Gabcikovo-Nagymaros Project
11
, the International Court of Justice said
that it is an established principle of international law that an injured state is entitled to obtain
compensation from the state which has committed an internationally wrongful act for the damage
caused by it.
12

Thus, from the judgment in this case, it is clearly established that offender state has to
compensate for the damage caused to the victim state provided that wrongful act done by the
offender state is an intentional one.
2. COMPENSATI ON OR DAMAGES
Article 36(1) of the articles on State Responsibility says that if the damage caused by the
international wrongful act cannot be made good by restitution, then the state responsible is under
an obligation to give compensation. Article 36(2) states that if established the compensation

10
53 ILR (1979) 389
11
[116 ILR 1] 89
12
Malcom N. Shaw, International Law, Cambridge University Press, 6
th
Edition
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should cover all financially assessable damage including loss of profits. This provision is
inserted in order to deal with economic losses provided they are proved by the claimant.
Compensation is usually calculated on the basis of current market value of the property
destroyed or lost. While computing compensation, the kind of property which is lost or destroyed
is to be kept in mind. Loss of profits can also be claimed if it is established that the offender state
has in some way stopped the victim state to generate income which he would have generated if
the property as had not been interfered with the offender state.
When Damages are awarded, both material and non-material damages has to be considered.
Thus, the damage could consist of actual damages as well as moral damages. In the case of
Rainbow Warrior, the arbitrator held
An order for the payment of monetary compensation can be made in respect of the breach of
international obligations involving serious moral and legal damage, even though is no material
damage.
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Thus, it can be clearly said that monetary compensation involves legal damages, material
damages and also moral damages.
3. SATI SFACTI ON
It is a kind of Reparation ranging from official apology, punishment of the guilty officials, and
acknowledgement of the unlawful character of the act. This does not include any kind of
monetary compensation. Satisfaction as a reparatory measure plays an important role when the
harmed party suffered insults, improper treatment or in case of an attack against the head of state
or government, diplomatic and consular representatives or its citizens.
14

In the New Zealand Arbitration case, the tribunal noted that there is a long established practice of
satisfaction going on between the state that has breached its international obligations and the
state which has suffered.

13
(1990) 82 ILR 499
14
Felicia Maxim, Forms of reparation of prejudice in international law reflections on common aspects in the draft
regarding the responsibility of the states for internationally wrongful acts , Available at
http://www.tribunajuridica.eu/arhiva/An1v1/nr2/art1eng.pdf, Last visited on 22
nd
April, 2014

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Article 37 of the ILC Articles provides that a state responsible for a wrongful act is obliged to
give satisfaction for the injury thereby caused in so far as it cannot be made good by restitution
or compensation. Satisfaction may be in the form of apology, guarantee of non-repetition and
acknowledgement of the unlawful character of the act etc. Satisfaction is a very common and
good form of reparation in case of territorial disputes.
In a case, the court rejected compensation as a suitable form of reparation in the Application of
the Genocide Convention case and said that Bosnia was entitled to reparation in the form of
satisfaction. Thus, the Court in its judgment stated that Serbia had failed to comply with its
obligations under the Genocide Convention. An acknowledgement of wrongdoing was deemed
appropriate when Serbias violation consisted of failing to take reasonable measures to prevent
genocide rather than direct participation in the crime of genocide.
Satisfaction may also be in the form of declaration by the state not to repeat the wrongful act
again and giving guarantee for it.
In the Armed Activities
15
case the Court stated that if a state assumes an obligation in an
international agreement to respect the sovereignty and territorial integrity of the other States
Parties to that agreement and a commitment to cooperate with them in order to fulfill such an
obligation, this expresses a clear legally binding undertaking that it will not repeat any wrongful
acts.











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DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA, 2006
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CONCLUSI ON:

International Treaties are signed by the states expressing their consent to get bound by it. The
doctrine of Pacta Sunt Servanda means that International Treaties are binding on the state parties
who are a party to the treaty. Hence, if a state has ratified a treaty, it has to respect it.
Every treaty in force is binding upon the parties to it and must be performed by them in good
faith. Hence, every state should attempt to implement the treaty in a best possible manner for
instance if we consider the case of India by enacting domestic Laws in relation to that treaty.
Also, Municipal Laws are to be framed in consonance with the international treaties. A state
cannot revoke to its internal laws if it has failed to perform its international obligations.
If a state fails to perform or breaches the treaty, the remedy for the victim state is known as
reparation. There are several kinds of Reparations ranging from restitution, compensation, and
satisfaction, either singly or in combination, accompanied in appropriate cases by interest.
Restitution is one of the forms of Reparation which aims to re-establish the situation which
existed before the wrongful act was done. It is the first form of reparation after which damages
and other reparation kinds are considered. Restitution is a kind of sanction for which question
arises only when there is a non-performance of the contractual obligations by the other state
party and its primary purpose is to re-establish the state in its previous position. However, even if
by restitution, certain things cannot be restored as before, restitution is inapplicable only to that
extent.
Now coming to Compensation, it is usually calculated on the basis of current market value of the
property destroyed or lost. While computing compensation, the kind of property which is lost or
destroyed is to be kept in mind. Loss of profits can also be claimed if it is established that the
offender state has in some way stopped the victim state to generate income which he would have
generated if the property as had not been interfered with the offender state. When Damages are
awarded, both material and non-material damages has to be considered.
At last Satisfaction is a kind of Reparation ranging from official apology, punishment of the
guilty officials, and acknowledgement of the unlawful character of the act. This does not include
any kind of monetary compensation. Satisfaction as a reparatory measure plays an important role
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when the harmed party suffered insults, improper treatment or in case of an attack against the
head of state or government, diplomatic and consular representatives or its citizens.