In this chapter, we consider other forms of remedies which seek to vindicate the plaintiff’s rights by a public statement of those rights, including declarations and awards of nominal damages and apologies. The court may make a public statement of rights (as with declarations) or the defendant himself may be compelled to make the statement (as with apology orders). We first consider apologies, then declarations, nominal damages and contemptuous damages, and then finally other vindicatory awards available under the Australian Consumer Law.

This chapter investigates the notion of ‘justice’ that informs ‘just and equitable’ compensation in section 25 of the Constitution and questions whether this notion changed during the attempt to amend section 25. It starts off by investigating the possible meaning of ‘justice’ during the transition and interrogates the usefulness of that notion of justice in interpreting section 25. It makes the argument that the conversations bringing about the Constitution Eighteenth Amendment Bill, even though not leading to an amendment, were important to challenge the notion of ‘justice’. The adoption of this Constitution lays a secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation (Epilogue of the interim Constitution, 1993).

This chapter relies on official and unofficial sources that have recently been made available to examine how the Chinese Communist Party introduced methods of reparation to deal with deaths that resulted from the egregious killings that took place in Guangxi between 1967 and 1968. Newly regrouped party leadership in the early post-Mao era designed a special reparation strategy and framework that included compensation, restitution, rehabilitation, implicit state apology, and commemorative acts; of these, the government prioritized rehabilitation while marginalizing the role of material reparation, largely because of final constraints.

The chapter considers the ICJ’s contribution to the law of State responsibility, looking back to the Court’s contribution to the codification of that law by the ILC: looking at the Court’s current attitude to the ILC’s Articles on State Responsibility; and looking to the future, addressing one of the main challenges facing the Court in this field, that of multilateral disputes. The author concludes that the Court has been an important player in this field of international law, and it has made a significant contribution to vesting the ILC Articles with the authority they have today. According to this chapter, the Court has an important role to play going forwards in the growth and development of community interest litigation for the enforcement of erga omnes obligations.

The author presents the constitutional model of State responsibility in Central Europe as exemplified by four legal systems: the Czechia, Hungary, Poland and Slovakia. In all of them, the legal rule providing for the reparation of damage caused by public authorities takes the shape of a subjective constitutional right which requires implementation in ordinary legislation. The very generous system of the Polish Constitution led to some limitations and qualifications of the broad constitutional right by the case law. In Hungary, a similarly broadly phrased constitutional right coexists with quite restrictive legislative provisions and a case law which tends to go slowly and cautiously beyond the letter of the ordinary legislation. In the Czech Republic and Slovakia, the drafters of the Constitutions were much more cautious and the precise content of the constitutional right is specified in ordinary legislation. State responsibility mechanisms at the domestic level have proven quite effective to compensate material damage. The greatest remaining challenge is compensation of moral damage.

The report explains how, while it had hardly been recognized in the early years of independence, State responsibility gradually developed in French-speaking Africa from the 1990s onwards under the dual influence of French administrative law and the emergence of pluralist democracy. The development of pluralist democracy led to a renewal of constitutionalism and of administrative law, thereby creating the conditions for a better protection of citizens’ liberties and rights. In spite of this positive evolution, the analysis of African case law shows that redress for injury caused by public authorities appears to be doubly deficient, both in the amounts allocated and in its execution by the administration. At the same time, however, redress for human rights violations is making concrete progress in all African regions (English speaking, French speaking, Arabic speaking, etc.), thanks in particular to the significant role played by the African Commission of Human Rights. Ultimately, the chapter argues that the full implementation of public institutions’ responsibility is highly dependent on the permeation of a rule of law culture in the African States.

This chapter recalls the distinction between responsibility and liability as it emerged in the work of the International Law Commission and its inherent difficulties, before turning to its relevance in relation to the interplay between the obligation to prevent harm and the prohibition to cause harm, the question of cessation and the procedural treatment at the International Court of Justice of the issues of injury, causality and reparation owed. The chapter questions the received wisdom according to which ‘responsibility’ and ‘liability’ would be two different legal genres and argues that the dichotomy between them is porous.

This chapter examines the temporality around which international law is articulated, with an emphasis on the doctrine of international responsibility. The chapter specifically elaborates on how the doctrine of international responsibility suspends international law’s one-directional temporality and provides discursive devices that allow one to travel back and forth between the past of wrongfulness and the present of responsibility. Such two-directional temporality, the chapter argues, is at the service of the narrative function of international responsibility in that such two-way time travel allows a re-representation of the real produced by legal claims made under the doctrine of international responsibility. The chapter ends with concluding remarks on the distinction between the imaginary and the real.

International investment treaties accord foreign investors and their investments protection from unlawful encroachments by state authorities as well as violence by third parties. From the perspective of investors, this protection becomes especially relevant in times of armed conflict. For states, however, such times make the provision of this protection especially difficult. Arbitral proceedings in the aftermath of the so-called Arab Spring have laid bare unresolved issues and posed new challenges arising from the factual and legal implications of armed conflict. At the same time, international investment law is deeply rooted in issues of war and peace. Not only the first arbitration based on a modern bilateral investment treaty but also the historical precursors of international arbitration have touched upon armed violence and the treatment of aliens. This Introduction presents the themes of the book and provides an initial overview of the relevant legal framework and employed methodology.

International investment treaties accord foreign investors and their investments protection from unlawful encroachments by state authorities as well as violence by third parties. From the perspective of investors, this protection becomes especially relevant in times of armed conflict. For states, however, such times make the provision of this protection especially difficult. Arbitral proceedings in the aftermath of the so-called Arab Spring have laid bare unresolved issues and posed new challenges arising from the factual and legal implications of armed conflict. At the same time, international investment law is deeply rooted in issues of war and peace. Not only the first arbitration based on a modern bilateral investment treaty but also the historical precursors of international arbitration have touched upon armed violence and the treatment of aliens. This Introduction presents the themes of the book and provides an initial overview of the relevant legal framework and employed methodology.

The analysis in this chapter proceeds from the assumption that shared responsibility for a breach of a shared obligation has been established and focuses on the content of that responsibility. In the case that secondary obligations of reparation or cessation arise, what can be claimed from which responsible actor, and to what extent is this influenced by the fact that the underlying primary obligation is shared? And if injured parties wish to effectuate these secondary obligations through international adjudication, are there any obstacles to the claiming of cessation and reparation? It will ultimately be argued that conceiving of the content of shared responsibility as consisting of shared obligations incumbent on all responsible actors can help untangle which of the responsible states or international organizations is bound to do what in terms of cessation and reparation. In this context, the distinction between divisible and indivisible shared obligations has an important role to play. After all, determining whether responsible actors are each bound only to their own share of cessation or reparation or whether, alternatively, all of them become bound to achieve a common result has direct implications for what can be claimed from whom.

This chapter analyses how an international wrongful act accrues from the violation of a due diligence obligation and its consequences. The first part discusses due diligence obligations against secondary rules of ARSIWA concerning the existence of a wrongful act. It is argued that violations of due diligence obligations stem from omissions and that the difficulty of establishing responsibility for failure of due diligence typically concerns the application of rules governing the breach, rather than rules of attribution of conduct. Accordingly, a critical reappraisal of the genealogy of Article 14(3) of ARSIWA and breaches of preventive obligations is undertaken; the chapter argues that the ILC wrongly conceptualised the ‘event’ to be prevented as a secondary rule, this way confusing the relationship between prevention and due diligence. The rest of the chapter examines due diligence obligations against other relevant secondary rules, such as circumstances precluding wrongfulness (specifically, force majeure and distress), the relationship between due diligence and complicity, and how reparation is to be accorded following a breach of due diligence obligations.

This chapter debates historical responsibility for climate change. The argument from historical responsibility has a legal dimension, as it is often used to assert the heightened mitigation and compensation obligations of some states. The debate here begins with the question of whether certain historically high-emitting states are legally bound to provide some sort of compensation for past levels of greenhouse gas emissions. Sarah Mason-Case and Julia Dehm answer this question in the affirmative, arguing that international law, but also notions of justice, provide bases for recognizing historical responsibility and for claiming reparation for the wrongs inflicted. Alexander Zahar, on the negative side, attacks the assumption that historical emissions and their growth rate since Industrialization are known accurately enough, such as to allow for blame to be pinned on certain countries and not others.

This chapter debates historical responsibility for climate change. The argument from historical responsibility has a legal dimension, as it is often used to assert the heightened mitigation and compensation obligations of some states. The debate here begins with the question of whether certain historically high-emitting states are legally bound to provide some sort of compensation for past levels of greenhouse gas emissions. Sarah Mason-Case and Julia Dehm answer this question in the affirmative, arguing that international law, but also notions of justice, provide bases for recognizing historical responsibility and for claiming reparation for the wrongs inflicted. Alexander Zahar, on the negative side, attacks the assumption that historical emissions and their growth rate since Industrialization are known accurately enough, such as to allow for blame to be pinned on certain countries and not others.