By Ineta Ziemele
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234. 27 Fifth Report on Unilateral Acts by Special Rapporteur Rodriguez-Cedeno, UN Doc. 1, pp. 6−10. 28 Articles on State Responsibility, ILC Report 2001, pp. 206−209, 277−292. 29 Furundzija (ICTY, Trial Chamber), 10 December 1998, IT-95-17/I-T, paras. 155−156. 30 J. Dugard, Recognition and the United Nations, Cambridge, CUP, 1987, p. 142. 31 But such restrictive view of jus cogens questions its general rationale. It is not clear what is the function of differentiation in substantive nature of certain norms if this has no consequential effect, and why should a norm be specific in nature because of embodying community interest and yet be unable to produce specific consequences to safeguard the integrity of that community interest.
41 At the final stage of the ILC’s work on State responsibility, this position has remained unchanged. 42 This approach is well founded as a general principle and also, as we shall see in due course, by the regime of specific remedies or forms of reparation. As the ILC’s Special Rapporteur Crawford emphasised, ‘[a] State whose right has been breached is entitled to protest, to insist on restitution or (even where restitution may be possible) to decide that it would prefer compensation. It may insist on the vindication of its right or decide in the circumstances to overlook 41 Commentary to Article 37 of the ILC’s draft, para.
This transformation of the normal regime of reparations in cases involving community interest protected by peremptory norms is the focus of the present contribution. It is intended to deal with general impact of jus cogens on the regime of reparations, and afterwards with the same phenomenon at the example of specific forms of reparation: restitution, compensation and satisfaction. At the end, the relevance of jus cogens as a limitation on the duty to make reparation will be examined. Due to the content of international jus cogens, the present contribution will primarily (but not exclusively) focus upon the responsibility of States for violation of human rights and humanitarian norms.