1. Introduction
A state commits an internationally wrongful act.Footnote 1 Perhaps it breached its procedural obligations in respect of construction works on a river,Footnote 2 or failed to make a preliminary inquiry into claims of torture.Footnote 3 Perhaps the state failed to ensure the jurisdictional immunity of another state was respected in its national courts,Footnote 4 or failed to give reasons for refusing to comply with an international letter rogatory.Footnote 5 Perhaps it hunted whales without a proper permit.Footnote 6
Having breached its international obligation, the wrongdoing state incurs a twofold, secondary obligation: first, to cease the wrongful conduct, if it is still occurring, and second, to make full reparation for any damage caused, whether material or moral.Footnote 7 As the Permanent Court of International Justice (the Permanent Court) made clear in the Chorzów case:
The essential principle contained in the notion of an illegal act . . . is that reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed.Footnote 8
These principles, in abstracto, are not contentious; indeed they are axiomatic.Footnote 9 So too is the recitation of the various forms that the ‘umbrella concept’ of reparationFootnote 10 may take: primarily restitution, where not materially impossible or out of all proportion to the benefit deriving from restitution; alternatively, compensation for the financially assessable losses. If restitution and compensation are impossible, then ‘satisfaction’ in the form of ‘an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality’ may suffice.Footnote 11
Traditional acts equating to satisfaction include apologies,Footnote 12 and salutes to the flag. Although these forms of satisfaction are considered by some to be ‘anachronistic’,Footnote 13 or even ‘mediaeval’,Footnote 14 even very recent applications to the Court have included requests for a formal apology in addition to restitution as the appropriate reparation.Footnote 15 These traditional modes of satisfaction, while not ‘conceived in an unequivocal way’,Footnote 16 serve to address the non-material, or ‘moral’ injuryFootnote 17 concomitant in a breach of obligation which infringes the applicant state's rights, and ‘in the injury to its honour, dignity and prestige.’Footnote 18 In the modern era, however, by far the most common modality of satisfaction is the award by the Court of a declaratory judgment.Footnote 19
By way of general definition, the declaratory judgment is a ‘mere declaration’Footnote 20 of the law, yet also a final, binding determination of the parties’ rights,Footnote 21 which has a ‘concrete effect’ on the parties’ relations.Footnote 22 The ‘fundamental purpose’ of the declaratory judgment is to ‘clarify and stabilize’ the parties’ legal relations.Footnote 23 It is a remedy of the widest ambit, ‘potentially available in any situation where a right is infringed or threatened’,Footnote 24 including in situations where no unlawful act has taken place.Footnote 25 Declarations, while utilized regularly in the state responsibility context, are not exclusive to it.Footnote 26
Yet, while the fact that the declaratory judgment plays a ‘central role’Footnote 27 as a remedy for breach of international obligations in the jurisprudence of the Court cannot be denied, the purpose underlying the Court's use of declaratory judgments in the state responsibility context is not clear. In the first part, the Court continues to award declaratory judgments utilising the form first seen in the Corfu Channel case, a passage in the dispositif stating: ‘this declaration by the Court constitutes in itself appropriate satisfaction.’Footnote 28 In this form, as explained further below, the declaration could be considered as a kind of penalty rather than as a form of reparation. Concurrently, the Court has evolved a practice of awarding ostensibly declaratory judgments that do not refer to the concept of satisfaction, but rather appear to operate in the form of an injunction – a concept familiar to domestic legal systems but not international courts.Footnote 29
Put simply, the Court appears to be utilising the same remedy, in the same kinds of cases, in respect of the same legal context, but to arguably achieve different ends. Whether the Court's approach to the use of declaratory judgments as a remedy in state responsibility cases can be coherently explained is the question at issue. This article therefore considers the use of the declaratory judgment in the Court's most recent jurisprudence, with a view to better understanding the potentially diverse roles that the declaratory judgment has to play as the leading judicial response to states’ internationally wrongful acts.
2. The declaratory judgment as a remedy in state responsibility cases: reparation, penalty, or injunction?
To understand the role of the declaratory judgment in the context of state responsibility, it is, of course, necessary to be clear as to the conceptual scope and distinguishing features of the remedy more generally. The factor that most distinguishes the declaratory judgment is that it lacks the ‘appendage’ of a ‘coercive decree’.Footnote 30 A declaration is fundamentally different from an executory judgmentFootnote 31 because there is no requirement for the parties to do anything after the judgment has been handed down.Footnote 32 Unlike a judicial order for compensation,Footnote 33 or restitution,Footnote 34 or even for a formal apology, a true declaratory judgment merely specifies the legal relationship of the parties, and goes no further; it does not provide material relief.Footnote 35
As Brownlie notes, all judgments on the merits are ‘declaratory’ in the sense that the parties legal entitlements must be adjudicated before a remedy can be awarded,Footnote 36 but in a declaratory judgment proper the Court's function is completed the moment it states the law.Footnote 37 Orders for additional remedies may follow in subsequent proceedings,Footnote 38 as declaratory judgments, while binding and res judicata,Footnote 39 do not prevent a further claim on the same facts for material relief such as compensation.Footnote 40 However, in many instances the declaration can be sufficient to entirely resolve the dispute.Footnote 41 This is particularly evident in declarations of territorial title, one of the most common uses of declarations by the Court.Footnote 42 Put simply, judgments that require an act of execution are not properly conceived of as declaratory.Footnote 43 While an executory order requires immediate action, a declaratory judgment proper settles the legal situation as between the parties, and binds only their future conduct, prohibiting future breaches of the same type.Footnote 44 This was made clear by the Permanent Court in the Chorzów case,Footnote 45 where it observed that the purpose of such a judgment was:
to ensure recognition of a situation at law, once and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called in question so far as the legal effects ensuing therefrom are concerned.Footnote 46
Accordingly, declaratory judgments are a remedy,Footnote 47 and there is certainly no reason an application cannot be made to the Court seeking a declaration of a state's breach of its international obligation(s), and no more than this.Footnote 48 If the applicable jurisdictional title is sufficiently broad, an ‘interested state’ can bring an action seeking a declaratory judgment that another state is in breach of an obligation whether or not the applicant state has suffered any damage.Footnote 49
However, the purpose underlying the utilisation of the declaratory remedy is less obvious than its nature may suggest. There has been some question as to whether declaratory judgments in state responsibility cases serve a purpose as reparation, or whether the Court's reference to satisfaction in such judgments may be reconceived of as a penalty.Footnote 50 Additionally, the fact that the Court does not make use of the satisfaction formulation in every state responsibility case, at times adopting a more ‘injunctive’ form, gives rise to the further question of whether such judgments are true declarations or something else entirely.
2.1. The declaratory judgment cannot be reparation
First, the use of declaratory judgments as reparation in the state responsibility context raises many conceptual difficulties. Foremost is that a declaratory judgment can only be awarded by a court, which does not fit within the understanding of reparation as an obligation owed by the offending state arising consequent upon the commission of an internationally wrongful act, whether or not a court has pronounced it so.Footnote 51 A declaration also does little, if anything, to ‘re-establish the situation that would, in all probability, have existed’ if the unlawful act had not been committed.Footnote 52 Moreover, although damage is not a precondition for the invocation of responsibility,Footnote 53 it is the ‘condition sine qua non of reparation’.Footnote 54 Whereas responsibility may be invoked by any state to which an obligation is due, and a declaratory judgment duly made, only an ‘injured state’ or a ‘specially affected state’ is entitled to reparation.Footnote 55
Thus, on a proper analysis it is apparent that declaratory judgments, although often made as satisfaction, should not be considered a mode of reparation.Footnote 56 While satisfaction can be a mode of reparation, and a declaratory judgment a form of satisfaction,Footnote 57 it does not therefore follow that a declaratory judgment is reparation.
2.2. The declaratory judgment as a penalty
Rather, as I have argued elsewhere,Footnote 58 the declaratory judgment, when made as satisfaction, should be conceived of as a penalty, that is, the ‘condemnation of an internationally wrongful act by an impartial third party of recognized authority’,Footnote 59 which serves to punish and deter wrongdoing.Footnote 60 Such a conception builds upon the distinction noted by Grotius, that ‘Injuries done might be considered in a twofold Respect, either as they may be repaired or punished’.Footnote 61 Whereas restitution and compensation are means by which to restore the injured party to the situation which would have existed if the wrongful act had not been committedFootnote 62 – true reparation – the line between satisfaction as reparation and satisfaction as sanction is less clear.Footnote 63 Traditional modes of satisfaction such as apologies or salutes to the flag are the remedial response to ‘the perpetration of some sort of fault’Footnote 64 and, rather than serving the purpose of repairing an injury, may (alternatively or additionally) be intended to punish ‘in the most general sense of the word – an injury which is judged not susceptible of being redressed (. . .) by the traditional forms of reparation’.Footnote 65
This duality inherent in the very concept of satisfaction profoundly affects the interpretation of the Court's usage of declaratory judgments as satisfaction. As observed by Brown, reparation is ‘independent of international judicial practice’, as the obligation to make reparation arises under state responsibility ‘regardless of whether this is determined in international judicial proceedings or through diplomatic processes.’Footnote 66 By contrast, the declaratory judgment is indivisible from the judicial act and conceptually at odds with the very notion of reparation. However, a declaratory judgment awarded as punitive, rather than reparatory, satisfaction remains a mere declaration, usefully expressing ‘opprobrium to the wrongdoer’Footnote 67 while still meeting all of the relevant criteria for a declaratory judgment, including, vitally, the lack of any need for a further act of execution by the parties. A declaratory judgment which is awarded as satisfaction should therefore not be conceived of as an award of reparation, but rather as an explicit recognition of a state's responsibility for its wrongful acts or omissions ‘in a manner that censures the wrongdoer’.Footnote 68
2.3. The declaratory judgment as injunction
Not all state responsibility cases result in the award of a declaratory judgment as satisfaction, however. The Court has also engaged in a practice of awarding declaratory judgments that appear to have an injunctive character – either as a mandatory order to follow a particular course of conduct, or prohibitive of certain conduct.Footnote 69 This is potentially problematic, as it is not at all clear whether the making of such mandatory orders is within the Court's competence.Footnote 70 Additionally and perhaps even more serious is the fact that declaratory judgments are not meant to require any act of execution. That they are a declaration of the law and nothing more is their key distinguishing feature. Yet on closer inspection it becomes clear that this ‘injunctive’ form of judgment should still be considered a true form of declaratory judgment.
This is best evidenced by a comparison of the Court's 2008 judgment in Questions of Mutual Assistance, with the 2012 judgment in Obligation to Prosecute or Extradite. Questions of Mutual Assistance concerned the 1995 death, in Djibouti, of a French national.Footnote 71 In 2004, Djiboutian authorities made a request to France via international letter rogatory pursuant to the bilateral 1986 Convention on Mutual AssistanceFootnote 72 for transmission of the record of a French investigation into the death. The request for assistance was refused,Footnote 73 however, Djibouti claimed never to have received notification of the refusal.Footnote 74 Djibouti's 2006 application to the Court alleged that France had breached its obligation to execute the international letter rogatory.Footnote 75 The Court concluded that France was only in breach of its procedural obligations under the treaty to notify Djibouti of the reasons for its refusal to grant mutual assistance.Footnote 76 The Court unanimously held that this failure to comply with the procedural obligation of notification constituted appropriate satisfaction for Djibouti.Footnote 77
In Obligation to Prosecute or Extradite, a Belgian national of Chadian origin filed a complaint with a Belgian investigating judge, alleging torture and other crimes against humanity committed by the former President of Chad, Hissène Habré, during his presidential tenure.Footnote 78 The Belgian judge, considering that the allegations were sufficiently serious, issued an international warrant in absentia for the arrest of Mr Habré in 2005. Belgium transmitted the international arrest warrant to Senegal, and requested the extradition of Mr Habré.Footnote 79 By 2012, Senegal had neither complied with Belgium's request for extradition, nor had it made any significant progress in respect of prosecuting Mr Habré.Footnote 80 Belgium sought the intervention of the Court, and successfully obtained from the Court an order that Senegal had breached its obligations arising under the 1984 Convention Against Torture,Footnote 81 insofar as the Senegalese authorities had failed to undertake any preliminary inquiry into the allegations of torture,Footnote 82 and was continuing to breach its obligations as Senegal had neither prosecuted Mr Habré nor extradited him to Belgium as it was obliged to do.Footnote 83
While in both cases the applicant states included in their submissions that a declaration by the Court of the wrongfulness of the respondent state's conduct would, in whole or in part, constitute appropriate satisfaction,Footnote 84 in Obligation to Prosecute or Extradite, the judgment made no mention of satisfaction, but rather contained an exhortation to Senegal to submit the case of Mr Habré to the competent authorities for the purpose of prosecution, or to extradite him to Belgium.Footnote 85
As noted above, this form of judgment appears, at least superficially, to resemble a mandatory order – perhaps for specific performance or possibly even restitution, broadly construed.Footnote 86 However, Senegal's obligation to prosecute or extradite Mr Habré arose as a result of Article 7(1) of the 1984 Convention against Torture, and did so whether or not the Court made an order in the terms that it did. The Court's judgment recognizes the ‘situation at law, once and for all and with binding force as between the Parties’,Footnote 87 and the dispositif does no more than make express Senegal's obligation to cease the wrongful act. In order to cease breaching its positive obligations, Senegal was required to take positive steps. The Court made this clear when it stated:
The Court emphasizes that, in failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal has engaged its international responsibility. Consequently, Senegal is required to cease this continuing wrongful act, in accordance with general international law on the responsibility of States for internationally wrongful acts. Senegal must therefore take without further delay the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it does not extradite Mr. Habré.Footnote 88
This is not the first time that the Court has included recommendations on how the parties should conduct themselves.Footnote 89 The judgment in Obligation to Prosecute or Extradite is akin to that awarded in the Arrest Warrant case, where the Court ordered that Belgium ‘must, by means of its own choosing, cancel the arrest warrant of 11 April 2000.’Footnote 90 However, these judicial statements nonetheless retain the character of a declaratory judgment and do not stray into the realm of mandatory orders. To the extent that there are executory consequences arising from the judgment, they operate as a result of the rules of state responsibility and not as a direct result of the Court's declaration,Footnote 91 which does no more than make express the course of conduct implicitly required by the Court's conclusion of illegality.Footnote 92 The details of how to comply – or to be more precise, the details of how to revert to a condition of non-breach – are reserved for the state.Footnote 93 Thus, an ‘injunctive’ form of declaratory judgment does no more than make plain the offending state's already existing obligation to cease its unlawful conduct.Footnote 94
The key issue is therefore whether there is a rationally defensible explanation as to why the Court elected to award a declaratory judgment as satisfaction in Questions of Mutual Assistance,Footnote 95 and an injunctive declaratory judgment in Obligation to Prosecute or Extradite,Footnote 96 in a situation where both states had initially requested the same remedy – satisfaction. Ultimately, then, it becomes necessary to closely examine the jurisprudence to identify in which circumstances the Court considers it appropriate to confer a declaratory judgment which could be considered punitive in nature, and in which circumstances the injunctive form is preferred. It then becomes possible to reflect on what this juxtaposition tells us about the role of declaratory judgments in the state responsibility context.
3. ‘I demand satisfaction’: requests for satisfaction granted and denied
The Court's most recent case law reveals that while the Court commonly awards declaratory judgments, it is only in certain limited circumstances that it does so as punitive satisfaction. To begin with, and quite in contrast to Questions of Mutual Assistance, the Court's 2010 judgment in Pulp Mills Footnote 97 resulted in a declaratory judgment being awarded as satisfaction, but this time in a situation where the desirability of such an outcome had been expressly disavowed by the applicant state.
The case concerned the planned construction of one pulp mill and the commission and construction of another on the River Uruguay.Footnote 98 Pursuant to the 1975 Statute of the River Uruguay,Footnote 99 which established a ‘régime for the use of the river’,Footnote 100 Uruguay had certain procedural obligations to inform, notify, and negotiate when issuing authorizations, commissions, and orders for the construction of the mills,Footnote 101 and certain substantive obligations such as the requirement to contribute to the optimum and rational utilization of the river.Footnote 102 Argentina claimed that Uruguay had violated both its procedural and substantive obligations which it asserted were indivisible.Footnote 103
Argentina requested primarily an order for restitution, or compensation for any damage caused that would not be remedied by the order for restitution. Argentina also requested that the Court order Uruguay to ‘provide adequate guarantees’ that it would not attempt to avoid the 1975 Statute again in the future.Footnote 104 While Argentina did not entirely renounce the possibility of declaratory satisfaction forming part of a suite of appropriate remedies,Footnote 105 the possibility that Argentina might be content with a declaratory judgment alone was expressly rejected.Footnote 106
Uruguay on the other hand submitted that its procedural and substantive obligations were separable,Footnote 107 and were the Court to find it had acted in breach of only its procedural obligations, a declaratory judgment to that effect would constitute appropriate satisfaction. Uruguay emphasized that Argentina's ‘nominal interest in securing redress for an alleged procedural violation’ would be more than adequately addressed by the granting of declaratory relief, relying in support of this submission on the Court's judgment in Certain Questions of Mutual Assistance.Footnote 108 The Court apparently agreed with Uruguay,Footnote 109 and emphasized that ‘its finding of wrongful conduct by Uruguay in respect of its procedural obligations per se constitutes a measure of satisfaction for Argentina.’Footnote 110 The formulation used by the Court is unusual, as it clearly attempts to frame the use of satisfaction as reparatory (being ‘for Argentina’), and yet fails to recognize the necessity of ‘full’ reparationFootnote 111 (‘some measure of’). The Court's judgment could be more successfully reconceived of as punitive, and therefore it suffices for present purposes to attribute this anomaly to the general confusion that has reigned in respect of the proper role of declaratory judgments in the state responsibility context.
A different result pertained in the Interim Accord case,Footnote 112 where the applicant state sought – and obtained – a declaration, constituting appropriate satisfaction, that Greece had violated its obligation under Article 11(1) of the Interim Accord. The Accord required Greece ‘not to object to the application by or membership of’ the applicant in NATO.’Footnote 113 The parties agreed that this was an obligation of conduct, not of result, insofar as it did not mean that Greece had to support the applicant's membership or that the applicant in fact had to be accepted into NATO.Footnote 114 However, Greece had breached its obligation ‘not to object’ and this was sufficient to engage its international responsibility. The applicant highlighted in its claim for a declaratory judgment that the award of such ‘would avoid further impunity’,Footnote 115 emphasising the link between declarations and the punitive dimension of satisfaction.Footnote 116
Finally, we see a particularly interesting development in the Court's recent judgment in Whaling in the Antarctic. Australia brought proceedings pursuant to declarations made under the optional clause,Footnote 117 alleging that Japan's programme to hunt and kill whales (known as JARPA II) was not in accordance with the requirements under Article VIII of the 1946 International Convention on the Regulation of WhalingFootnote 118 (ICRW) that such a programme be ‘for purposes of scientific research’.Footnote 119 If that position was correct, then it followed that Japan had breached, and was continuing to breach, certain of its substantive obligations under the Schedule to the ICRW, which included prohibitions on the killing, taking, and treating of whales.Footnote 120 Australia asserted that Japan had also failed to comply with certain procedural requirements which obliged Japan to make proposed permits for scientific whaling available for review and comment by the Scientific Committee of the International Whaling Commission.Footnote 121 Australia did not claim to have suffered any damage – they did not, after all, own the whales – but neither was there an attempt, as there had been by Belgium in Obligation to Prosecute or Extradite, to formulate Japan's breach of its multilateral obligations under the ICRW as damage per se.Footnote 122 Rather, Australia sought only a declaratory judgment, including an express recognition of the obligation of cessation of the breach and the corollary obligation of revoking any extant whaling permits related to JARPA II.Footnote 123
Following a careful examination of the terms of Article VIII, the Court concluded that JARPA II did not constitute whaling ‘for the purposes of scientific research’.Footnote 124 Japan had not, however, breached its procedural obligations.Footnote 125 With respect to Japan's breaches of its substantive obligations, the Court went above and beyond the request of Australia for a simple declaration of the breach. The Court held that because JARPA II was an ‘ongoing programme’, ‘measures that go beyond declaratory relief are warranted’.Footnote 126 The Court ordered that not only shall Japan ‘revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II’, but also that Japan must ‘refrain from granting any further permits in pursuance of that programme’,Footnote 127 and that it was to be expected that Japan would ‘take account of the reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under Article VIII’.Footnote 128
The remedies ordered by the Court in the Whaling case are peculiar in their form, leading to potential confusion regarding their effect. On the one hand, the judgment may be considered as simply more evidence of the Court's practice of awarding injunctive declaratory judgments, which explicitly order the offending party to cease the unlawful activity.Footnote 129 As seen in Obligation to Prosecute or Extradite, the injunctive form of declaration simply makes plain the offending state's already extant obligation to cease unlawful conduct, which in the case of positive obligations, may require the taking of positive steps.Footnote 130 The requirement to ‘revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II’ could thus be characterized as simply an overt statement regarding the need for cessation. However, this was not a situation that required Japan to take positive steps to comply with its already subsisting positive obligations. Rather, the judgment required Japan to revoke – undo – its unlawful permits.
Arguably, such an order begins to resemble restitution rather than a declaratory judgment. This is not per se problematic. It may be a simple reversion to the straightforward calculation that wrongdoing gives rise to the dual obligation of cessation and reparation. Whaling could therefore be considered equivalent to the declaration in Jurisdictional Immunities of the State,Footnote 131 where the Court ordered ‘legal restitution’,Footnote 132 requiring Italy to enact appropriate legislation (or take other measures having similar effect) to reverse the effect of decisions made by the Italian courts in breach of Germany's right of jurisdictional immunity.Footnote 133
However, in Whaling the Court did not suggest that the order was related to the undoing of consequences arising from the unlawful act, or that the order should be considered reparatory – Australia's material or moral interests not having been damaged and the dead whales not susceptible of being restored to life. As observed by Gray, judgments that recognize an obligation of restitution ‘have, to date, generally taken the form of a declaratory judgment rather than an order.’Footnote 134 At the least, Whaling falls within this milieu.
Then there is the requirement that Japan ‘refrain from granting any further permits’ and take account of the reasoning of the Court when it evaluates the possibility of granting any future permits.Footnote 135 However, it is incorrect to surmise that the Court has here done anything other than simply affirm the binding character of its judgment. Declaratory judgments, like all judgments, must be complied with,Footnote 136 and a future failure by Japan to take account of the reasoning of the Court would result (almost inevitably) in a repeated breach of its international obligations and non-compliance with the Court's judgment.
Overall, a closer examination of the Whaling decision reveals that despite desiring to ‘go beyond declaratory relief’, arguably the Court did not achieve its goal – and neither was there any real reason to proclaim the necessity of doing so. Ultimately, it appears that Japan was required to do no more than cease the unlawful conduct (stop whaling under JARPA II) and was bound by the decision of the Court to not issue non-compliant permits in the future. A simple declaratory judgment is wholly capable of achieving such results.
4. A differentiation of declaratory remedies based on the nature of the obligation and the nature of the breach
Taken together, these judgments reveal something of the ‘protean and flexible’ nature of the declaratory judgment,Footnote 137 even within a single field such as state responsibility.Footnote 138 Moreover, they illustrate that there remains widespread uncertainty as to the proper function of declarations in the state responsibility context. Nevertheless, they also demonstrate an emergent trend with respect to the manner of cases in which a declaration will be deemed to constitute satisfaction, to be contrasted with those cases which result in an ‘injunctive’ declaratory judgment.
Such a trend is all the more apparent when it is appreciated that the award of declaratory judgments as satisfaction cannot be explained solely by reference to non ultra petita. This would be the obvious justification for any differential treatment; an applicant state may request, or receive, only a declaration of the breach,Footnote 139 or it may request a declaration as satisfaction. Certainly, application of this principle suffices to explain the Court's first use of a declaratory judgment as satisfaction in Corfu Channel.Footnote 140 Albania had requested an apology, but abandoned this request during the oral proceedings and accepted that a declaration would be sufficient.Footnote 141 It could certainly corroborate the result in the Interim Accord case.Footnote 142 Moreover, it is the rationale regularly trotted out to justify the Court's controversial judgment in the earlier Genocide case,Footnote 143 in which during the course of the oral proceedings, Bosnia and Herzegovina's counsel had acknowledged that a declaratory judgment might be the appropriate form of reparation ‘for certain Convention violations’.Footnote 144 The Court concluded that for Serbia's breach of its obligation to prevent genocide at Srebrenica, Bosnia and Herzegovina was entitled to ‘reparation in the form of satisfaction’, and this would take the form of a declaration.Footnote 145
However, in Obligation to Prosecute or Extradite the Court rejected (or at least ignored) Belgium's request for a declaratory judgment as satisfaction.Footnote 146 The Court also awarded a declaratory judgment as satisfaction where the applicant did not request it in Pulp Mills.Footnote 147 In Whaling, the Court claimed that it was going beyond the simple declaratory relief sought by Australia, even though arguably it did nothing of the sort,Footnote 148 and it is debatable whether non ultra petita truly explains the Court's judgment in Genocide.Footnote 149
That the Court has not strictly limited itself to the applicant state's requests in respect of remedies may appear initially surprising, as it is ‘generally recognised’ that an injured state has a choice as to the form it wishes due reparation to take,Footnote 150 or even whether to request reparation at all.Footnote 151 But if declaratory judgments are not considered as reparation, this difficulty does not arise. Notably, the Court is not restricted to the requests of the parties.Footnote 152 Jurisdiction to award a declaratory judgment is not premised on the Court's jurisdiction to award reparation.Footnote 153 Indeed, it is arguably impossible for states to exclude the Court's power to award a declaratory judgment. As the Court noted in Northern Cameroons, ‘[t]hat the Court may, in an appropriate case, make a declaratory judgment is indisputable.’Footnote 154 Once the Court is empowered to determine the merits of a dispute, it is invested with the power to adjudicate. Necessarily, that adjudication will at a minimum take the form of a declaratory judgment. Were the Court to be deprived of the power to ‘adjudge and declare’ the law, the Court would be unable to perform its fundamental judicial function of resolving disputes.
If therefore the diverse results in these cases cannot be explained by reference to non ultra petita, the issue is whether there exists a rational justification for the differentiation.
An initial point to note is that while all of the judgments discussed above are declaratory judgments, it is abundantly clear that the Court is quite deliberately making an election between the injunctive form and the form utilising satisfaction. Here, it is sufficient to take the form of words used (or not used) by the Court at face value. As noted above, what is vital is that the declaratory judgment is a purely judicial response to acts of state responsibility: a state cannot ‘grant or offer a declaration in respect of itself; this can only be done by a competent third party.’Footnote 155 The fact that a case results in a declaratory judgment does not automatically mean that judgment constitutes satisfaction. Indeed, quite the opposite situation pertains. Unless one conceives of declaratory judgments as embodying the punitive aspect of satisfaction and therefore as a form of penalty, declaratory judgments do not make sense as satisfaction, because they are certainly not a form of reparation. The injunctive form, by contrast, is either a simple declaratory judgment (with no debate about penalties or reparation arising), or a mandatory order. As explained above, the former view is preferable. The possibility of a state accepting the judgment as satisfaction or otherwise is irrelevant.Footnote 156 States cannot ex post facto redefine the nature of the remedy awarded.
Clearly then, the Court is electing to differentiate between these forms of declaratory judgment, and the utilization of these different modalities can be coherently explained by reference to variances in the nature of the obligation owed, and in the nature of the breach.
This immediately raises the question of whether the Court is reintroducing (inadvertently or otherwise) the prospect of differentiated secondary responsibility obligations according to the nature of the obligation breached, an issue that haunted the International Law Commission during the drafting of the ARSIWA.Footnote 157 However, having debunked the idea that declaratory judgments serve any purpose as reparation, there is no need to fear the re-emergence of this particular spectre. We are not concerned with obligations owed by the offending state, but rather with the different judicial responses to diverse acts of wrongdoing. The nature and severity of potential breaches of international law is as broad as the myriad obligations into which states may enter,Footnote 158 and there is no reason that the Court cannot seek to issue remedies that are concomitant to and appropriate for the nature of the obligation and the nature of the breach.
Considering then those judgments in which the Court ordered a declaratory judgment as satisfaction, a number of key commonalities arise, which is indicative of a pattern of particular remedies being awarded in a particular type of case. The first is that in each of the Certain Questions of Mutual Assistance, Pulp Mills, and Interim Accord cases, the wrongful conduct had effectively ceased.Footnote 159 Thus, the issue for the Court was not one of securing compliance with a rule of law, but rather with establishing the wrongfulness of the conduct – penalizing the breach – in order to emphasize that such conduct should not be repeated.
Secondly, in each of the cases considered above, the breach in question was of a minor, procedural, or technical obligation. In Certain Questions of Mutual Assistance, it constituted a failure to give reasons; in Pulp Mills, a failure to comply with procedural obligations; and in Interim Accord, a failure to ‘not object’ in an international fora. In each case, the breach arguably had only relatively minor impacts on the ultimate factual situation later facing the disputing states. For example, in Pulp Mills, the Court emphasized that not only had the procedural breaches occurred in the past and already ceased,Footnote 160 but that Uruguay would not have been prevented from ultimately constructing the mill even had it complied with its procedural obligations.Footnote 161 Likewise in the Interim Accord case, Greece's non-objection would not have guaranteed the applicant state membership in NATO,Footnote 162 and in Certain Questions of Mutual Assistance, the Court found that France's reasons for not transmitting the judicial file were within the scope of the 1986 Convention, and as such Djibouti would not in the end have obtained the file, even had France not breached its obligations.
Controversially, perhaps, this rationale might also serve to explain the Court's judgment in the Genocide case. The Court in that case held that Serbia was responsible under the 1951 Genocide ConventionFootnote 163 for failing to prevent the genocide committed in Srebrenica in 1995, but that it was not directly responsible for the genocide.Footnote 164 In other words, the breach in question had both already occurred, and being in the nature of an obligation of conduct rather than result,Footnote 165 was of a lesser magnitude than the commission of genocide itself. In this sense, although an uncomfortable conclusion, the judgment fits the juridical pattern of cases in which declaratory judgments have been awarded as satisfaction.Footnote 166
By contrast, in both the Whaling case and Obligation to Prosecute or Extradite case, the relevant wrongful acts were ongoing, giving rise to an obligation of cessation,Footnote 167 and additionally, constituted breaches of the state's substantive obligations under the relevant treaties. However, the question of reparation did not arise as in neither case had any damage been suffered by the applicant state. Invocation of responsibility is permitted in such situations but reparation is not, leaving the simple declaratory judgment as the only effective outcome of the proceedings. In both cases, it might be suggested, the Court opted for the injunctive form of declaratory judgment to emphasize the imperative of compliance.
5. Conclusions
Ultimately, it appears that punitive declaratory judgments – the satisfaction model – are considered suitable as remedies only for certain types of breaches, of certain types of obligation. The declaratory judgment, awarded as satisfaction, serves a useful function as a penalty, issued by an authoritative body.Footnote 168 It is consistently awarded in cases involving minor or technical breaches of legal obligation, so much so that Uruguay in its submissions in the Pulp Mills case was content to describe the declaratory judgment as being the ‘standard remedy’Footnote 169 in this context. Uruguay also described the award of a declaratory judgment as a ‘grave’ matter of the ‘highest international significance’.Footnote 170 On both counts Uruguay is correct. The declaratory judgment, issued as a penalty for wrongdoing, is not simply a de minimis or ‘toothless’ remedy.Footnote 171 It is not ‘milder’ than other remedies simply ‘because it lacks a command’,Footnote 172 but rather it continues to be a ‘significant sanction’.Footnote 173 A breach of a minor, technical or procedural obligation is still an internationally wrongful act, deserving of reprimand.
At the same time, where a breach is more substantive, or ongoing (or both), the Court has proven that it can and will still make use of the declaratory remedy, but that it will tend towards utilising the more injunctive form. This latter mode of declaration too is useful and effective: securing compliance being more important in such a situation than issuing a penalty. In such a case, there is no need for a command. After the declaratory judgment, ‘everyone knows what to do.’Footnote 174
There has been significant confusion regarding the proper role of declaratory judgments in the state responsibility context. It would be preferable to discard any lingering doubt. The declaratory judgment is not a mode of reparation. Rather, both forms of judgment utilized by the Court – the satisfaction model and the injunctive form – are no more and no less than simple, straightforward declaratory judgments.
