CYIL vol. 15 (2024)

PAVEL ŠTURMA CYIL 15 ȍ2024Ȏ does not depend on an injury suffered by an individual state. It also entails consequences for preclusion and extinction of wrongfulness in case of violation of non-bilateral obligations. Similarly, while the traditional (bilateralist) approach equates responsibility with reparation, the content of legal consequences of breach of non-bilateral obligations focuses on cessation, differentiated forms of reparation, and other consequences that fit for responsibility erga omnes . The differentiation of the breached obligations also has an impact on the possibility of invocation of responsibility by an injured state and by other states, confirmed in the ARSIWA. The most complicated and not yet sufficiently clarified issue relates to enforcement, namely by countermeasures in common interest. Chapter 4 addresses the issue of non-bilateral responsibility in interstate dispute settlement. The author focused on interstate dispute mechanisms and selected the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the WTO Dispute Settlement Mechanism. Based on the analysis of case law, she discusses the impact of obligations erga omnes (partes) on jurisdiction and admissibility and the special elements in the conduct of proceedings, such as third-party intervention and amicus curiae briefs. The final point of the chapter concerns the question of changing judicial functions and provides a blueprint for a legality-based approach to the international judicial function. The last two chapters offers more theoretical discussion and conclusions on the impact of non-bilateral obligations on the international legal system and, in particular, on state responsibility for breaches of such obligations. Chapter 5 starts from the argument that non bilateral obligations and the responsibility for breach of them ‘pose a fundamental challenge to certain traditional percepts of international law’. (p. 189) The point is that international law has traditionally been likened to a system of private law. However, many of the developments relating to non-bilateral responsibility have a public law nature, as they rely on public law notions such as the rule of law and common (or public) interests. Indeed, in the legal theory, there are various attempts at a reconceptualization of international law to public law models based on different concepts. 1 The merits of the present book are twofold. First, the author provides the link between the doctrinal discussion on the shift to public law and the concept of non-bilateral responsibility. Second, since the distinction of private and public law is embedded in the domestic legal orders, she rather speaks about the elements of publicness in international law. In this chapter, she firstly identified these elements, namely community, universality, hierarchy, and objectivity. Then, she applied them to the international legal order and tested against the features of non-bilateral obligations and responsibility entailed from their breach. Finally, in chapter 6, the author presents her conclusions on a theory of state responsibility for breaches of non-bilateral obligations. She situates this desired theory (largely outlines in the book) within the broader context of the evolution of international law. Indeed, the nature and focus of international law have changed over time and continue to change. The author 1 See, e.g., SIMMA, Bruno, From Bilateralism to Community Interests in International Law, 250 Recueil des Cours ADI (1994), pp. 217, 234; DE WET, Erika, The International Constitutional Order, 55 International & Comparative Law Quarterly (2006), p. 51; KINGSBURY, B., DONALDSON, M., Global Administrative Law, in: Max Planck Encyclopedia of Public International Law (Oxford University Press, 2011); VON BOGDANDY, A., PETERS, A. and LESS, S., The Publicness of Public International Law Seen through Schmitt’s Concept of Political. A Contribution to Building Public Law Theory , vol. 22 (Max Planck Institute for Comparative Public Law and International Law, 2016).

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