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Part IV The Content of International Responsibility, Ch.38 The Obligation of Cessation

Olivier Corten

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved. Subscriber: null; date: 09 December 2022

Subject(s):
Responsibility of states — Wrongful acts — Reparations — Circumstances precluding wrongfulness — General principles of international law

(p. 545) Chapter 38  The Obligation of Cessation

Pursuant to article 30 of the Articles on State Responsibility, entitled ‘Cessation and non-repetition’:

The State responsible for the internationally wrongful act is under an obligation:

(a)  to cease that act, if it is continuing;

(b)  to offer appropriate assurances and guarantees of non-repetition, if circumstances so-require.

The general principle underlying this provision is respect for the rule of law. However, the application of the rule is subject to certain specific conditions and entails certain legal consequences.

A general principle of respect of the rule of law

The obligation of cessation of wrongful acts is an essential obligation: it is impossible to conceive of a legal order which does not impose on every author of a breach the obligation to cease that breach. For example, a State which occupies another State without valid legal justification is bound to immediately end the occupation. In this sense, and unlike the other provisions concerning reparation, cessation of the unlawful act is in the interest of a wider community of States, and not only of the injured State. As the ILC noted in the Commentary to article 30, cessation has the function of:

[putting] an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule. The responsible State’s obligation of cessation thus protects both the interests of the injured State or States and the interests of the international community as a whole in the preservation of, and reliance on, the rule of law.1

(p. 546) Thus conceived, the obligation of cessation is really a formulation of the principle pacta sunt servanda: it is an expression of the fact that States must respect their international obligations.

There is an interesting debate between those who maintain that the obligation of cessation is a primary obligation (for it merely reaffirms the obligation to respect an existing rule)2 and those who consider the obligation to be a secondary rule (insofar as it is conceived as the consequence of the breach of a primary rule).3 In 1993 the ILC noted that ‘cessation is situated, so to speak, in between the two categories of rules’.4 The Commentary to article 30 justifies the inclusion of the obligation among the articles on consequences of internationally wrongful acts in the following terms:

There are several reasons for treating cessation as more than simply a function of the duty to comply with the primary obligation. First, the question of cessation only arises in the event of a breach. What must then occur depends not only on the interpretation of the primary obligation but also on the secondary rules relating to remedies, and it is appropriate that they are dealt with, at least in general terms, in articles concerning the consequences of an internationally wrongful act. Secondly, continuing wrongful acts are a common feature of cases involving State responsibility and are specifically dealt with in article 14. There is a need to spell out the consequences of such acts in Part Two.5

In my opinion, the sole rigorous and logical characterization of the obligation of cessation is that it is a secondary rule, since (as the Commentary notes) by definition it only arises when a primary rule has been breached and it is indisputably ‘concerned with determining the legal consequences of failure to fulfill obligations established by the “primary” rules’.6 This does not preclude an alternative description of cessation as the expression of a primary rule: that regarding the non-violation of obligations.7 But the expression of the principle through an obligation of cessation (and not through an obligation of respect) implies its placement within the regime established by secondary rules.

Whatever the characterization given to cessation, it is undeniable that the obligation of cessation is a part of general international law insofar as it is a customary rule, and it may even be considered a general principle of law. In addition, cessation often appears in the practice of numerous States and international organizations, recalling the obligation to put an end to unlawful continuing acts.8 Case law has also affirmed the principle: several judgments have required States responsible for unlawful acts to cease continuing violations of the primary rule.9

(p. 547) A limited scope of application to cases of continuing unlawful acts

For the obligation of cessation to be applicable, an internationally unlawful act for which a State is responsible must exist. ARSIWA article 30 refers to the general rules governing State responsibility in relation both to the existence of an unlawful act and its attribution to a State. It is necessary to recall that an internationally wrongful act can consist in an act (for example, the passing of a law incompatible with the State’s international obligations) or an omission (for example, the failure to adopt a law as required by international law).10

Furthermore, for the obligation of cessation to be applicable, is necessary that the violation occurred at a time when the primary obligation was in force for the responsible State, and that the primary obligation remains in force at the time cessation is sought.11 This will not be the case where the responsible State is no longer bound by the rule (conventional or not) or if the rule is no longer in force at the time when cessation is sought, because it has been extinguished, suspended, or made temporarily inapplicable by virtue of a circumstance precluding wrongfulness.12 In other words, the obligation of cessation arises at the moment when the breach is complete and logically terminates at the same time the breach is terminated, although it may arise again if the breach is resumed. For instance, a State which fails to honour an international debt will not be under an obligation of cessation (and thus, an obligation of payment) throughout the period where it can validly invoke a situation of temporary state of necessity which provisionally makes the rule non-applicable. This requirement is implicit in the words used in article 30(a): ‘if it is continuing’. The Commentary to article 30 also notes that the obligation of cessation might apply to ‘situations where a State has violated an obligation on a series of occasions, implying the possibility of further repetitions’.13

‘Composite acts’, defined in article 15 ARSIWA as a ‘series of actions or omissions defined in aggregate as wrongful’14 may give rise to an obligation of cessation. For example, an obligation of cessation might apply in the case of an administrative practice consisting of an aggregate of discriminatory acts, even if those acts might not be continuous. It is in this sense that the requests of human rights supervisory bodies to cease human rights violations must be understood.15 The only condition is that at the moment when cessation is sought the aggregate of acts (or omissions) must constitute an unlawful act. Apprehension of the occurrence of a further act which transforms previous acts into an wrongful act cannot support an obligation of cessation. In the case of denial of justice, for instance, the obligation of cessation (which can entail a review of the conclusions of a judgment) supposes by definition that the denial of justice has already been committed: failing a final judgment, it is possible to remind the State of the necessity to comply with its international obligations, but there can be no existing obligation of cessation, since there is no internationally wrongful act until the denial of justice has been perfected.

(p. 548) It is also possible that a single act can be viewed as part of continuing conduct which is wrongful. It is in this sense that the bombings and military attacks not accompanied by territorial occupation carried out during the war in Kosovo in 1999 were considered by the International Court of Justice. The Court clearly considered NATO’s military action as a single wrongful act, specifically indicating that the bombings in question had ‘been conducted continuously’.16 In these circumstances, the obligation of cessation might effectively apply to a single act which forms part of continuing conduct which is unlawful.

Legal regime of the obligation of cessation

By virtue of the general principle pacta sunt servanda, the obligation to cease the unlawful act entails respect for the primary obligation that is being violated. The consequences of this obligation must therefore be determined by reference to the content of the obligation being breached.17 Cessation may then take the form of an action (to abrogate or adopt a law pursuant to international law) or an omission (not to bomb, occupy, or discriminate in breach of an international obligation).18

In this context, it is notable that the general function of the obligation of cessation, that of assuring respect for the rule of law, justifies that certain States which are not injured by the breach are entitled to claim—and even demand—its respect.19

The obligation of cessation can be distinguished from other secondary obligations like restitution in kind, even if both obligations apply to similar factual situations (for example, the release of hostages or withdrawal of occupying troops). Cessation, unlike restitution, is always possible: ‘None of the difficulties which may hinder or prevent restitution in kind are such as to affect the obligation to cease the wrongful conduct’.20 It simply could not be a matter of ‘cessation by equivalent’, insofar as the payment of compensation to justify a continuing breach of international law would constitute a limitation that ‘would call into question the binding force of the primary rules themselves and endanger the validity, certainty, and effectiveness of international legal relations’.21 In law, a State must and can always put an end to a continuing breach. If it cannot materially do so, it is either because it cannot be held responsible for a wrongful act: for example, the State no longer controls the person who is committing the unlawful act (in which case, the unlawful act can no longer be attributed to the State) or because it can claim a situation of force majeure (in which case there is no unlawful act because of the application of a circumstance precluding wrongfulness). This distinction between cessation and restitution can be explained by reference to the very basis of each of them: while the consequences of past acts cannot always be erased (which is the objective of restitutio in integrum), it is always possible to take action in relation to future events (which are the (p. 549) only acts envisaged in the obligation of cessation).22 In this context, the Commission has insisted on more practical differences:

Cessation is often the main focus of the controversy produced by conduct in breach of an inter national obligation. It is frequently demanded not only by States but also by the organs of international organizations such as the General Assembly and Security Council in the face of serious breaches of international law. By contrast, reparation, important though it is in many cases, may not be the central issue in a dispute between States as to questions of responsibility.23

This confirms that, although it can give rise to theoretical complex controversies, the obligation of cessation only expresses a very simple principle: the obligation to respect the rule of law.

Further reading

  • C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489
  • C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in P Weil (ed), Droit international II (Paris, Pedone, 1982), 27
  • K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed) Responsabilité internationale (Paris, Pedone, 1988), 65(p. 550)

Footnotes:

Commentary to art 30, para 5.

See: G Arangio-Ruiz, Preliminary Report on State Responsibility, ILC Yearbook 1988, Vol II(1), 5, 13 (para 31); C Dominicé, ‘Observations sur les droits de l’Etat victime d’un fait internationalement illicite’, in P Weil (ed), Droit international II (Paris, Pedone, 1982), 27.

See K Zemanek, ‘La responsabilité des Etats pour faits internationalement illicites ainsi que pour faits internationalement licites’, in P Weil (ed) Responsabilité internationale (Paris, Pedone, 1988), 65.

Commentary to draft art 6, para 4, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 55.

Commentary to art 30, para 6.

According to the definition of secondary rules adopted by the ILC: see Report of the ILC, 25th Session, ILC Yearbook 1973, Vol II, 169 (para 40); Report of the ILC, 27th Session, ILC Yearbook 1975, Vol II, 55 (para 35). See also J Salmon (ed), Dictionnaire de droit international public (Brussels, Bruylant, 2001), 755.

Riphagen considered that the obligation represents ‘two sides of one and the same coin’: W Riphagen, Second Report on State Responsibility, ILC Yearbook 1981, Vol II(1), 87 (para 68).

See eg SC Res 660, 2 August 1990 and SC Res 1304, 16 June 2000 aiming, respectively, to put an end to the occupation of Kuwait by Iraq and of certain areas of the Democratic Republic of the Congo by foreign armed forces.

United States Diplomatic and Consular Staff in Tehran (United States of America v Islamic Republic of Iran), ICJ Reports 1980, p 3, 44–45 (para 95(3)); Military and Paramilitary Activity in and against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 149 (para 292(12)).

10  Commentary to draft art 6, para 10, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 56.

11  Commentary to draft art 6, para 13, ibid, 57.

12  Difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras 113–114).

13  Commentary to art 30, para 3.

14  In the Commentary to art 15, para 1, the ILC evokes the case of ‘continuing breaches’.

15  C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489.

16  Legality of Use of Force (Serbia and Montenegro v Belgium), Provisional Measures, ICJ Reports 1999, p 124, 134 (para 28).

17  C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489, 486.

18  As the Tribunal in Rainbow Warrior stated: difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair, 30 April 1990, 20 RIAA 215, 269–271 (paras 113–114).

19  See ARSIWA art 48(2) and Commentary.

20  Commentary to draft art 6, para 6, Report of the ILC, 45th Session, ILC Yearbook 1993, Vol II(2), 56.

21  Ibid.

22  C Deman, ‘La cessation de l’acte illicite’ (1990) 23 RBDI 489, 487.

23  Commentary to art 30, para 4.