Accepting State Responsibility by Means of an ‘Apology’: the Australian and South African Experience

Abstract

The International Law Commission’s 2001 Draft Articles on State Responsibility declares that, besides restitution and compensation as a means of accountability for an international wrong, satisfaction may also be offered. Article 37 states that satisfaction may take the form of an expression of regret or a formal apology. This is a movement away from the Chorzow Factory Case PC1J Series A no 17 4 (1928) where it was held that a breach of an international obligation demands full reparation for the injury caused. Article 37 is more in line with the Genocide Convention Case 2007 ICJ Rep 43 where it was held that state responsibility could arise at a political level. In the Rainbow Warrior Affair 20 RIAA 217 (1990) the tribunal considered that a French declaration of responsibility was, inter alia, an appropriate form of redress for using force against the territorial integrity of New Zealand. It is submitted that Australian Prime Minister Rudd’s 2008 formal apology for the removal of aboriginal children from their parents (the ‘Stolen Generation’) and South Africa’s 1998 Truth and Reconciliation Commission are examples of an expression of regret or formal apology as set out in article 37 of the ILC’s Draft Articles on State Responsibility. It is submitted that in so doing Australia and South Africa have accepted accountability for breaches of ius cogens norms and erga omnes obligations.