Specific Aspects of Restoration as a Form of Invocation of International Responsibility of a State

Author Name(s): Maria V. Krivenkova
Author Email: MVKrivenkova@kpfu.ru

Abstract

Restoration is one of the most complex forms of intangible international legal responsibility. The problem lies in the absence of a generally accepted notion of restoration as an independent form of responsibility, and its primary consideration is only as a form of restitution. Even the term “restoration” is rarely used in international legal documents. Without denying the existence of the common goal of restitution and restoration – restoring the situation that existed before the violation of the law, based on the analysis of international legal acts, as well as the practice of judicial and quasi-judicial bodies, it is concluded that the restoration has a specific character. It is expressed in the need to adopt domestic legal acts to restore the violated rights of the injured subjects of international law, which indicates the independence of this form of responsibility. Responsibility in the form of restoration can be invoked not only by the injured states but also by individuals by applying to international quasi-judicial bodies, such as the UN Committees on Human Rights, against tortures, to eliminate discrimination against women. In turn, the European Court of Human Rights does not have the competence of calling states to such kind of responsibility.

Introduction

The commission of an international wrongful act, regardless of its gravity and nature, entails serious legal consequences, in particular, the emergence of a secondary legal relationship of responsibility between the infringer of the law and the injured or other subject. The content of this legal relationship is expressed in the right of the victim to demand the cessation and non-repetition of the wrongful act, as well as the provision of amends. This right corresponds to the duty of the person who caused the damage to compensate for the damage caused. Fundamentally important in this legal relationship is that the injured party has the choice of a method of reparation of the damage. And the most preferred form of responsibility in terms of compliance with the goals and functions of calling for international legal responsibility is restitution. In the theory of international law, restitution is considered to be the material form of responsibility [1]. However, the Articles on State Responsibility for Internationally Wrongful Acts developed by the United Nations International Law Commission states that “the state responsible for the internationally wrongful act is obliged to carry out restitution, that is, to restore the situation that existed before the wrongful act …” (Article 35), and such restoration can exist in two forms: restitutio in integrum and restitutio in pristinum. There is no doubt about the substantive nature of the first form (which in the international doctrine is called restitution in kind), since in this case we are talking about the return of illegally seized individually determined property, for example, archives, historical and artistic values, etc. The second form of restitution is expressed in the restoration of the incorporeal rights of injured subjects of international law. This form of responsibility, despite what is considered within the framework of restitution, refers to intangible forms of responsibility and is called “restoration”, which can be expressed in the release of unlawfully apprehended persons, the withdrawal of troops from an illegally occupied territory, the restoration of previously existing borders with the neighboring state and so on. However, given the lack of consonance in opinions about the nature of restoration, the difference of views on the independent nature of this form of international legal responsibility, its study is of considerable interest

Conclusion

The analysis of the norms of international law, as well as the practice of judicial and quasi-judicial bodies, suggest that restoration is an independent type of intangible responsibility under international law. The use of different terminology in relation to this legal category only emphasizes the specifics and characteristics of restoration as the most preferred form of non-material state responsibility, since, first of all, it is necessary to consider the possibility of restoring the old state of things.

173 total views, 1 views today

Download PDF File

About the author: admin