Barcelona Traction

The dictum on the Barcelona Traction case, the International Court of Justice, as the primary judicial organ of the
United Nations, gave rise to the concept of erga omnes obligations in international law. The World Court
specifically enumerated four erga omnes obligations: the outlawing of acts of aggression; the outlawing of
genocide; protection from slavery; and protection from racial discrimination.i In this judgment the Court drew a
distinction between the erga omnes obligations that a state has towards the international community as a whole
and in whose protection all states have a legal interest, and the obligations of a state vis-à-vis another state.

Such as the obligation to respect the principle of self-determination in the Case Concerning East Timorii and the
Advisory Opinion on the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory,iii
and the erga omnes obligation prohibiting the use of torture which was recognized by the International Criminal
Tribunal for Yugoslavia (hereinafter, the ICTY) in the Furundzija caseiv .
In international law, the concept of erga omnes obligations refers to specifically determined obligations that states
have towards the international community as a whole. Such obligations, as enumerated above, have been
determined by the Barcelona Traction case, together with other subsequently developed obligations,

The concept of erga omnes appears in international law for the first time in two paragraphs of the judgment in the
Barcelona Traction Case (Second Phase), Belgium v. Spain which the I.C.J. delivered on February 5, 1970.v
The relevant text of the paragraphs 33 and 34 follow:

33. In particular, an essential distinction should be drawn between the obligations of a state towards the
international community as a whole, and those arising vis- a vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations erga omens.

34. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of human person,
including protection from slavery and racial discrimination.vi

The case arose out of the adjudication in a bankruptcy case by a Spanish court of the Barcelona Traction Light
and Power Company, Limited, a Canadian company. Belgium filed an application seeking reparation for damages
sustained by Belgium nationals, shareholders in the company, as a result of acts contrary to international law
committed by organs of the Spanish state. The Spanish Government raised four preliminary objections to the
application (Ragazzi 2002: 3). The court rejected the first and the second objections concerning the jurisdiction of
the court and ruled on the merits of the third and the fourth objections. The third objection of the Spanish
Government was that the Belgium Government lacked capacity to submit any claim for wrongs done to a
Canadian company even if the shareholders were Belgian.

On the third preliminary question, the court reasoned that an injury to the shareholder’s interests did not confer
rights on the shareholder’s national state to exercise diplomatic protection for the purposes of seeking redress.
That right is conferred on the national state of the company alone. No international law rule expressly confers
such a right on the shareholder’s national state. The possession by the Belgian Government of a right of
protection was a prerequisite for examination, and since no jus standi before the Court had been established, it
was not for the Court to pronounce upon any other aspect of the case.

As seen above, since the Court dealt with Belgium’s right to jus standi in seeking compensation for Belgian
shareholders, the erga omnes obligations pronouncement is not strongly related to the merits of the case. This
calls for us to first address briefly the issue of jus standi and actio popularis and, more extensively, the criticisms
of the pronouncement

The pronouncement in the Barcelona Traction case is stated in regard to erga omnes obligations in the line of
reasoning related to standing (jus standi), and this raises the issue of the existence of actio popularis in
international law.
The concept of actio popularis derives from Roman law and indicates an action brought by a citizen asking the
court to protect a public interest, without any need to show an individual interest in pursuing its claim (Hsiung
2004: 19).
However, the International Court of Justice in the South West Africa case held that proceedings in defence of
legal rights and interests require those rights or interests to be clearly vested in those who claim them and that
actio popularis is not known to international law as it stands at present (Jennings and Watts 1997: 5). Although
the concepts of actio popularis and erga omnes are in some respects associated, the two are distinct and
independent of each other.

Other version of Facts:

Barcelona Traction, Light, and Power Company, Ltd was a corporation incorporated in Canada, with Toronto
headquarters, that made and supplied electricity in Spain. It had issued bonds to non-Spanish investors, but
during the Spanish Civil War (1936-9) the Spanish government refused to allow BTLP to transfer currency to pay
bondholders the interest they were due. In 1948 a group of bondholders sued in Spain to declare that BTLP had
defaulted on the ground it had failed to pay the interest. The Spanish court allowed their claim. The business was
sold, the surplus distributed to the bondholders, and a small amount was paid to shareholders. The shareholders
in Canada succeeded in persuading Canada and other states to complain that Spain had denied justice and
violated a series of treaty obligations. However, Canada eventually accepted that Spain had the right to prevent
BTLP from transferring currency and declaring BTLP bankrupt. Of the shares, 88 per cent were owned by
Belgians, and the Belgian government complained, insisting the Spanish government had not acted properly.
They made an initial claim at the International Court of Justice in 1958, but later withdrew it to allow negotiations.
Subsequent negotiations broke down, and a new claim was filed in 1962. Spain contended that Belgium had no
standing because BTLP was a Canadian company.

Case Concerning East Timor

Brief Facts

The Court then gives a short description of the history of the involvement of Portugal and Indonesia in the Terri-
tory of East Timor and of a number of Security Council and General Assembly resolutions concerning the
question of East Timor. It further describcs the negotiations between Australia and Indonesia leading to the Treaty
of 11 Decem ber 1989, which created a "Zone of Cooperation . . . in an area between the Indonesian Province of
East Timor and Northern Australia".

Other version of Facts: Portugal administered East Timor as a non-self-governing territory under United Nation
Chapter XI. On 27th August 1975, due to internal disturbances caused by factions calling for self-determination,
Portugal withdrew from East Timor. Soon after its departure on 7th of December 1975, Indonesia invaded and
incorporated East Timor as part of its territorial dominion. Later, on 20th of January 1978, Australia acknowledged
de facto Indonesia's annexation of East Timor which was then followed by de jure recognition in the following
year.

Summary of Judgment and arguments:

A number of talks took place between Portugal and Australia to resolve the issue concerning undefined
continental shelf between Indonesia and Australian known as the 'Timor Gap'. However, failure to resolve the
matter completely resulted in a treaty between the two countries for exploration and exploitation of natural
resources known as the ‘Treaty between Australia and the Republic of Indonesia on the zone of cooperation in an
area between the Indonesian province of East Timor and Northern Australia.'

The Court then considers Australia's principal objection, to the effect that Portugal's Application would require the
Court to determine the rights and obligations of Indonesia. Australia contends that the jurisdiction conferred upon
the Court by the Parties' declarations under Article 36, para- graph 2, of the Statute would not enable the Court to
act if, in order to do so, the Court were required to rule on the law- fulness of Indonesia's entry into and continuing
presence in East Timor, on the validity of the 1989 Treaty between Australia and Indonesia, or on the rights and
obligations of Indonesia under that Treaty, even if the Court did not have to determine its validity. In support of its
argument, it refers to the Court's Judgment in the case of Monetary Gold Removed
. Portugal agrees that if its Application required the Court to decide any of these questions, the Court could not
entertain it. The Parties disagree, however, as to whether the Court is required to decide any of these questions in
order to resolve the dispute referred to it.

Portugal contends first that its Application is concerned exclusively with the objective conduct of Australia, which
consists in having negotiated, concluded and initiated performance of the 1989 Treaty with Indonesia, and that
this question is perfectly separable from any question relating to the lawfulness of the conduct of Indonesia.

Having carefully considered the argument advanced by Portugal which seeks to separate Australia's behaviour
from that of Indonesia, the Court concludes that Australia's behaviour cannot be assessed without first entering
into the question why it is that Indonesia could not lawfully have con- cluded the 1989 Treaty, while Portugal
allegedly could have done so; the very subject-matter of the Court's decision would necessarily be a
determination whether, having regard to the circumstances in which Indonesia entered and remained in East
Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the
re- sources of its continental shelf. The Court could not make such a determination in the absence of the consent
of Indonesia.

The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were rights
erga omnes and that accordingly Portugal could require it, individually, to respect them regardless of whether or
not another State had conducted itself in a similarly unlawful manner.

In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved from
the Charter of the United Nations and from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has been recognized by the Charter and in the
jurisprudence of the Court;it is one of the essential principles of contemporary international law. However, the
Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different
things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct
of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is
not a party to the case.

The Court goes on to consider another argument of Portugal which, the Court observes, rests on the premise that
the United Nations resolutions, and in particular those of the Security Council, can be read as imposing an
obligation on States not to recognize any authority on the part of Indonesia over East Timor and, where the latter
is concerned, to deal only with Portugal. Portugal maintains that those resolutions would constitute"givens" on the
content of which the Court would not have to decide de novo.

The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a Non-Self-
Governing Territory and its people has the right to self-determination, and that the express reference to Portugal
as the "administering Power" in a number of the above-mentioned resolutions is not at issue between them. The
Court finds, however, that it cannot be inferred from the sole fact that a number of resolutions of the General
Assembly and the Security Council refer to Portugal as the administering Power of East Timor that they intended
to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East
Timor. Without prejudice to the question whether the resolutions under discussion could be binding in nature, the
Court considers as a result that they cannot be regarded as "givens" which constitute a sufficient basis for
determining the dispute between the Parties.

It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a
prerequisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status
as administering Power, East Timor's status as a Non-Self- Governing Territory and the right of the people of the
Territory to self-determination and to permanent sovereignty over its wealth and natural resources. Indonesia's
rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of
that State's con- sent. Such a judgment would run directly counter to the "well-established principle of
international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a
State with its consent"

Conclusion
The Court accordingly finds that it is not required to consider Australia's other objections and that it cannot rule on
Portugal's claims on the merits, whatever the importance of the questions raised by those claims and of the rules
of international law which they bring into play.

Legal Consequences on Construction of Wall

Facts:The wall which Israel (D) constructed on the Palestinian territory and its route impaired the freedom of the
Palestinians. The I.C.J. was however asked to provide an advisory opinion on the matter when the U.N. General
Assembly (P) requested Israel (D) to halt and reverse the construction of the wall.

Issue:“What are the legal consequences arising from the construction of the wall being built by Israel, the
occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in
the Report of the SecretaryGeneral, considering the rules and principles of international law, including the Fourth
Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?”

Judgment

155. The Court would observe that the obligations violated by Israel include certain obligations erga omnes. As
the Court indicated in the Barcelona Traction case, such obligations are by their very nature “the concern of all
States” and, “In view of the importance of the rights involved, all States can be held to have a legal interest in their
protection.” (Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports
1970, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation to respect the right of the
Palestinian people to self determination, and certain of its obligations under international humanitarian law.

156. As regards the first of these, the Court has already observed (paragraph 88 above) that in the East Timor
case, it described as “irreproachable” the assertion that “the right of peoples to selfdetermination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character” (I.C.J. Reports 1995, p. 102,
para. 29). The Court would also recall that under the terms of General Assembly resolution 2625 (XXV), already
mentioned above (see paragraph 88),

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights
and selfdetermination of peoples, in accordance with the provisions of the Charter, and to render assistance to
the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation
of the principle . . .”

157. With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, it stated that “a great many rules of humanitarian law applicable in armed
conflict are so fundamental to the respect of the human person and ‘elementary considerations of humanity’ . . .”,
that they are “to be observed by all States whether or not they have ratified the conventions that contain them,
because they constitute intransgressible principles of international customary law” (I.C.J. Reports 1996 (I), p. 257,
para. 79). In the Court’s view, these rules incorporate obligations which are essentially of an erga omnes
character.

Rainbow Warrior Case

A. Introduction

1 The Rainbow Warrior case is considered a leading precedent in the field of → State responsibility. The role it
has played in theory and practice may appear exaggerated to some observers, given that it is comprised partly of
→ mediation and partly of → arbitration, neither of which carry the same authority as a ruling by an international
court or tribunal. However, the Rainbow Warrior case is one of the causes célèbres of the law of State
responsibility, and is also referenced with regard to numerous other areas of international law, including the
absence of a superior orders defence in → international criminal law, the co-application of conventional and
customary law, the problem of low-level uses of force, and the importance of the principle of → good faith (bona
fide).
B. Factual Background

2 Since 1966 France had been carrying out nuclear tests in the Mururoa Atoll in French Polynesia (→ Nuclear
Tests Cases), and a new series of tests was planned in 1985. These tests were opposed by the environmental
non- governmental organization Greenpeace, which sent its vessel, Rainbow Warrior, to Auckland, New Zealand
in order to protest the French nuclear activities (→ NonGovernmental Organizations). On 10 July 1985 the ship
was lying in Auckland harbour when an explosion sunk the vessel, killing one person, the Dutch-Portuguese
photographer Fernando Pereira. France initially denied any involvement.

3 On 22 September 1985 the Prime Minister of France issued a communiqué confirming that the Rainbow Warrior
had been sunk by agents of the French Directorate General of External Security (‘DGSE’), under orders, and the
French Minister for External Affairs indicated to the Prime Minister of New Zealand that France was ready to
undertake → reparations for that action. The incident also led to the resignation of the French Minister of Defence
and the dismissal of the Director-General of the DGSE.

4 Two agents of the DGSE, Major Mafart and Captain Prieur—who had been posing as Swiss tourists under the
names Alain and Sophie Turenge—were arrested in New Zealand in relation to the incident, and on 4 November
1985 they pleaded guilty to charges of manslaughter and wilful damage to a ship by means of an explosive. On
22 November 1985 they were sentenced by the Chief Justice of New Zealand to a term of 10 years’
imprisonment.

5 A dispute arose between New Zealand, which pressed for → compensation, and France, which demanded the
release of the two agents. New Zealand complained that France was threatening to disrupt New Zealand trade
with the European Communities unless the two agents were released (see also → Countermeasures). In June
1986 following an appeal by the Prime Minister of the Netherlands, the two States referred all the problems
between them arising from the Rainbow Warrior affair to the Secretary-General of the United Nations for a binding
ruling (→ Peaceful Settlement of International Disputes). The two States agreed to be bound by the ruling, which
was to be both ‘equitable and principled’ (→ Equity in International Law; → Ex aequo et bono).

Pronouncements:

• “Rainbow Warrior” case,46 the arbitral tribunal stressed that “any violation by a State of any obligation, of
whatever origin, gives rise to State responsibility”

• The arbitral tribunal in the “Rainbow Warrior” affair referred to “any violation by a State of any obligation”.69 In
practice, terms such as “non-execution of international obligations”, “acts incompatible with international ob-
ligations”, “violation of an international obligation” or “breach of an engagement” are also used.

• “Rainbow Warrior” arbitration, the tribunal said that “any violation by a State of any obligation, of whatever ori-
gin, gives rise to State responsibility and consequently, to the duty of reparation”

• the “Rainbow Warrior” arbitration, the tribunal affirmed that “in the field of inter- national law there is no
distinction between contractual and tortious responsibility”

• Similarly, in the “Rainbow Warrior” arbitration, the arbitral tribunal held that, although the relevant treaty
obligation had terminated with the passage of time, France’s responsibility for its earlier breach remained

• For example, the “Rainbow Warrior” arbitration involved the failure of France to detain two agents on the
French Pacific island of Hao for a period of three years, as required by an agreement between France and New
Zealand. The arbitral tribunal referred with approval to the Commission’s draft articles (now amalgamated in
article 14) and to the distinction between instantaneous and continuing wrongful acts, and said:

Applying this classification to the present case, it is clear that the breach consisting in the failure of returning to
Hao the two agents has been not only a material but also a continuous breach. And this classification is not purely
theoretical, but, on the contrary, it has practical consequences, since the seriousness of the breach and its
prolongation in time cannot fail to have considerable bearing on the establishment of the reparation which is
adequate for a violation presenting these two features.
The tribunal went on to draw further legal consequences from the distinction in terms of the duration of French
obligations under the agreement.

• In the “Rainbow Warrior” ar- bitration, the tribunal held that both the law of treaties and the law of State
responsibility had to be applied, the former to determine whether the treaty was still in force, the latter to
determine what the consequences were of any breach of the treaty while it was in force, including the question
whether the wrongfulness of the conduct in question was precluded

• More recently, in the “Rainbow Warrior” arbitration, France relied on force majeure as a circumstance
precluding the wrongfulness of its conduct in removing the officers from Hao and not returning them following
medical treatment. The tribunal dealt with the point briefly:

New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test
of its applicability is of absolute and material impossibility, and because a circumstance rendering performance
more difficult or burdensome does not consti- tute a case of force majeure.

• The “Rainbow Warrior” arbitration involved a plea of distress as a circumstance precluding wrongful- ness
outside the context of ships or aircraft. France sought to justify its conduct in removing the two officers from the
island of Hao on the ground of “circumstances of dis- tress in a case of extreme urgency involving elementary
humanitarian considerations affecting the acting organs of the State”.366 The tribunal unanimously accepted
that this plea was admissible in principle, and by majority that it was applicable to the facts of one of the two
cases. As to the principle, the tribunal required France to show three things:

(1) The existence of very exceptional circumstances of extreme urgency involving medical or other considerations
of an elementary nature, provided always that a prompt recognition of the existence of those exceptional
circumstances is subsequently obtained from the other interested party or is clearly demonstrated.

(2) The reestablishment of the original situation of compliance with the assignment in Hao as soon as the reasons
of emergency invoked to justify the repatriation had disappeared.

(3) The existence of a good faith effort to try to obtain the consent of New Zealand in terms of the 1986
Agreement. 6

In fact, the danger to one of the officers, though perhaps not life-threatening, was real and might have been
imminent, and it was not denied by the New Zealand physician who subsequently examined him. By contrast, in
the case of the second off icer, the justif cations given (the need for medical examination on grounds of
pregnancy and the desire to see a dying father) did not justify emergency action. The lives of the agent and the
child were at no stage threatened and there were excellent medical facili- ties nearby. The tribunal held that:

[C]learly these circumstances entirely fail to justify France’s re- sponsibility for the removal of Captain Prieur and
from the breach of its obligations resulting from the failure to return the two of- ficers to Hao (in the case of Major
Mafart once the reasons for their removal had disappeared). There was here a clear breach of its obligations. 6

• Article 24 is limited to cases where human life is at stake. The tribunal in the “Rainbow Warrior” arbitration
appeared to take a broader view of the circumstances jus- tifying a plea of distress, apparently accepting that a
seri- ous health risk would suffice. The problem with extending article 24 to less than life-threatening situations
is where to place any lower limit. In situations of distress involving aircraft there will usually be no difficulty in
establishing that there is a threat to life, but other cases present a wide range of possibilities. Given the context
of chapter V and the likelihood that there will be other solutions available for cases which are not apparently
life-threatening, it does not seem necessary to extend the scope of distress beyond threats to life itself. In
situations in which a State agent is in distress and has to act to save lives, there should how- ever be a certain
degree of flexibility in the assessment of the conditions of distress. The “no other reasonable way” criterion in
article 24 seeks to strike a balance between the desire to provide some flexibility regarding the choic- es of
action by the agent in saving lives and the need to confine the scope of the plea having regard to its excep-
tional character.
• n the “Rainbow Warrior” arbitration, the arbitral tribunal expressed doubt as to the existence of the excuse of
necessity. It noted that the Commission’s draft arti- cle “allegedly authorizes a State to take unlawful action
invoking a state of necessity” and described the Commis- sion’s proposal as “controversial”

• the tribunal in the “Rainbow Warrior” arbitration stressed “two essential conditions intimately linked” for the
requirement of cessation of wrongful conduct to arise, “namely that the wrongful act has a continuing character
429
and that the violated rule is still in force at the time in which the order is issued”. While the obligation to
430
cease wrongful conduct will arise most commonly in the case of a continuing wrongful act, article 30 also
en- compasses situations where a State has violated an obliga- tion on a series of occasions, implying the
possibility of further repetitions. The phrase “if it is continuing” at the end of subparagraph (a) of the article is
intended to cover both situations.

• The “Rainbow Warrior” arbitration it was initially argued that “in the theory of international responsibility,
damage is necessary to provide a basis for liability to make repara- tion”, but the parties subsequently agreed
that:

Unlawful action against non-material interests, such as acts affecting the honor, dignity or prestige of a State,
entitle the victim State to receive adequate reparation, even if those acts have not resulted in a pecuniary or
material loss for the claimant State.

The tribunal held that the breach by France had “provoked indignation and public outrage in New Zealand and
caused a new, additional non-material damage ... of a moral, po- litical and legal nature, resulting from the affront
to the dignity and prestige not only of New Zealand as such, but of its highest judicial and executive authorities as
well

Corfu Channel
• Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have
known, of the presence of the mines in its territorial waters and did nothing to warn third States of their
presence.

266
• Thus, the basis of respon- sibility in the Corfu Channel case was Albania’s fail- ure to warn the United
Kingdom of the presence of mines in Albanian waters which had been laid by a third State. Albania’s
responsibility in the circumstances was original and not derived from the wrongfulness of the conduct of any
other State.

470
• In the Corfu Channel case, the damage to the British ships was caused both by the action of a third State
in laying the mines and the action of Albania in failing to warn of their presence. Although, in such cases, the
in- jury in question was effectively caused by a combination of factors, only one of which is to be ascribed to
the re- sponsible State, international practice and the decisions of international tribunals do not support the
471 472
reduction or attenuation of reparation for concurrent causes, except in cases of contributory fault. In the
Corfu Channel case, for example, the United Kingdom recovered the full amount of its claim against Albania
based on the latter’s wrongful failure to warn of the mines even though Alba- nia had not itself laid the
473
mines. Such a result should follow a fortiori in cases where the concurrent cause is not the act of another
State (which might be held sepa- rately responsible) but of private individuals, or some nat- ural event such as
a flood.

• In the Corfu Channel case, the United Kingdom sought compensation in respect of three heads of dam- age:
replacement of the destroyer Saumarez, which became a total loss, the damage sustained by the destroyer
“Volage”, and the damage resulting from the deaths and injuries of naval personnel. ICJ entrusted the
assessment to expert inquiry. In respect of the destroyer Saumarez, the Court found that “the true measure of
compensation” was “the replacement cost of the [destroyer] at the time of its loss” and held that the amount of
compensation claimed by the British Government (£ 700,087) was justified. For the damage to the destroyer
“Volage”, the experts had reached a slightly lower figure than the £ 93,812 claimed by the United Kingdom,
“explained by the necessarily ap- proximate nature of the valuation, especially as regards stores and
equipment”. In addition to the amounts awarded for the damage to the two destroyers, the Court upheld the
 United Kingdom’s claim for £ 50,048 representing “the cost of pensions and other grants made by it to victims
or their dependants, and for costs of administration, medical treatment, etc”

• One of the most common modalities of satisfaction provided in the case of moral or non-material injury to the
State is a declaration of the wrongfulness of the act by a competent court or tribunal. The utility of declaratory
relief as a form of satisfaction in the case of non-material injury to a State was affirmed by ICJ in the Corfu
Chan- nel case, where the Court, after finding unlawful a mine- sweeping operation (Operation Retail) carried
out by the British Navy after the explosion, said:

[T]o ensure respect for international law, of which it is the organ, the Court must declare that the action of the
British Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the request
made by Albania through her Counsel, and is in itself appropriate satisfaction. 9

This has been followed in many subsequent cases.593 However, while the making of a declaration by a com-
petent court or tribunal may be treated as a form of sat- isfaction in a given case, such declarations are not intrin-
sically associated with the remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has
the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a
necessary part of the process of determining the case. Such a declaration may be a preliminary to a decision on
any form of reparation, or it may be the only remedy sought. What the Court did in the Corfu Channel case was to
use a declaration as a form of satisfaction in a case where Albania had sought no other form. Moreover, such a
declaration has further advantages: it should be clear and self-contained and will by definition not exceed the
scope or limits of satisfaction referred to in paragraph 3 of article 37. A judicial declaration is not listed in para-
graph 2 only because it must emanate from a competent third party with jurisdiction over a dispute, and the
articles are not concerned to specify such a party or to deal with issues of judicial jurisdiction. Instead, article 37
specifies the acknowledgement of the breach by the responsible State as a modality of satisfaction.

• In the Corfu Channel incident, it appears that Yugoslavia actually laid the mines and would have been
responsible for the damage they caused. ICJ held that Albania was responsible to the United Kingdom for the
same damage on the basis that it knew or should have known of the pres- ence of the mines and of the attempt
719
by the British ships to exercise their right of transit, but failed to warn the ships. Yet, it was not suggested
that Albania’s responsibility for failure to warn was reduced, let alone precluded, by rea- son of the concurrent
responsibility of a third State. In such cases, the responsibility of each participating State is determined
individually, on the basis of its own conduct and by reference to its own international obligations.