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‘By Means of its Own Choosing’: Is the Court Refashioning the Remedies of State Responsibility?

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AbstractThe International Court of Justice (the Court) can formulate appropriate orders whilst being sufficiently attune to the domestic constraints confronted by States. In the Consular Notification cases, the United States was ordered, ‘by means of its own choosing’, to undertake a ‘review and reconsideration’ of the convictions and sentences of certain named individuals whose rights to consular notification were denied. The Court revived a distinction between obligations of conduct and obligations of result but refrained from indicating when a violation of an international obligation occurred, in this case, potential non-compliance with its earlier judgment in Avena. This article argues that the Court need not attempt to remodel the doctrine of State responsibility in order to provide an adequate and effective remedy. Juridical restitution, as evidenced in its prior jurisprudence, contemplates intrusion into the municipal legal order of States. This article also considers the free choice of means principle and the appropriate judicial function in these circumstances. It concludes that the remedial orders declared by the Court can be made by reference to the particular obligation at issue and the circumstances of each case. Furthermore, the litigation context and the claims made by the disputants cannot be overlooked by the Court when determining the degree of specificity required by those orders.

Affiliations: 1: Migration and Refugee Review TribunalsSydneyAustralia


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