위법행위의 재발방지 확약 및 보장에 대한 소고

In the Jurisdictional Immunities case of 2012, the ICJ held that the act of Italy was internationally wrongful but rejected Germany's request that Italy be ordered to provide assurances of non-repetition. The Court found no reason to suppose that Italy would repeat the act in the future, since its good faith must be presumed. However, in Judgment No. 238 of 2014 the Italian Constitutional Court declared the relevant domestic rules to be unconstitutional. Judgment No. 238 resulted in at least 25 new cases being brought against Germany and in at least 15 proceedings, Italian courts entertained and decided upon claims against Germany in relation to conduct of the German Reich during World War II. In April 2022, Germany once again instituted proceedings before the ICJ against Italy for allegedly failing to respect its jurisdictional immunity as a sovereign State. In its Application, Germany asks the Court to adjudge and declare that Italy is required to offer concrete and effective assurances and guarantees that violations of Germany's sovereign immunity will not be repeated. The ICJ judgment of 2012, the decisions of Italian courts thereafter and the new case of 2022 have led the author to examine the obligation to offer assurances and guarantees of non-repetition of the wrongful act, a subject which has not attracted much comment in the literature on State responsibility. The ILC's work on the subject shows changes in the perception of assurances and guarantees of non-repetition. At the initial stage of the work, assurances and guarantees against repetition was considered as a form of satisfaction. Later, they became distingushed from satisfaction or other forms of reparation but remained as a form of reparation. Lastly, the final report concluded that assurances and guarantees of non-repetition are cognate to cessation of a continuing wrongful act rather than an aspect of reparation. Assuming the continuation in force of the obligation, both cessation and assurances of non-repetition are concerned with the restoration of confidence in a continuing relationship. Distinct from reparation, assurances and guarantees of non-repetition have the following characteristics. Firstly, while any wrongful act involves an obligation to make reparation in an adequate form, assurances and guarantees of non-repetition manifest themselves only with respect to wrongful acts which appear more likely to be repeated. Secondly, while reparation is the indispensable complement of a failure to comply with obligations, the offending State's obligation to provide assurances and guarantees against repetition must be fulfilled only on the injured State's demand. Thirdly, the obligation to provide such guarantees is recognized only when circumstances so warrant. Circumstances to be taken in consideration include the existence of a real risk of repetition and the seriousness of the injury suffered by the claimant State as a result of the wrongful act. The judge or other third party will determine if the conditions for the granting of the exceptional remedy are met. Fourthly, the obligation to provide assurances and guarantees of non-repetition is an obligation of result and thus the choice of means to be used belongs to the offending State. Fifthly, the provisions of domestic law cannot be justification for refusing assurances and guarantees of non-repetition. Having said that, international courts have refused to order safeguards against repetition either because the offending State's good faith must be presumed or because the injured State's request for such measures are considered to be met already by certain legal or factual situations. It is doubtful, however, whether the ICJ can say again in the new case that Italy's good faith must be presumed. It is suggested that there exist special circumstances which justify the ICJ's ordering Italy to offer appropriate assurances and guarantees of non-repetition.