Consequences of International State Responsibility: A Rational Choice Analysis of Remedies in International Law

This chapter examines the extent to which the different consequences of an internationally wrongful act in the law of state responsibility, and thus the default rules on remedies in public international law, take into account in their ex post allocation of duties and costs the protection of community interests in international law. It analyses the impact the different secondary obligations (as legal constraints or cost factors) have on the compliance decision of the potentially wrongdoing state. A key issue here is that the effectiveness of remedies hinges on self-enforcement which varies depending on the underlying problem constellation, the probability of successful enforcement being lower in the case of breach of obligations with public good characteristics. Building on the concepts of property, liability, and inalienable rules, this chapter analyses successively the different remedies in the ARSIWA: firstly, the obligations of cessation and assurances or guarantees of non-repetition; secondly, the obligation of reparation for injury in the forms of restitution, compensation (including the appropriate level), and satisfaction; and, thirdly, the consequences of violations of jus cogens norms.