Document: A/CN.4/440 and Add.1
Third report on State responsibility, by Mr. Gaetano Arangio-Ruiz, Special Rapporteur
Topic: State responsibility
Extract from the Yearbook of the International Law Commission: 1991, vol. II(1)
Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm)
Copyright © United Nations
STATE RESPONSIBILITY
[Agenda item 2]
DOCUMENT A/CN.4/440 and Add.1
Third report on State responsibility, by Mr. Gaetano Arangio-Ruiz, Special Rapporteur
[Original: English]
[19 July 1991]
CONTENTS
Page Paragraph
Note 3
Works cited 3
Paragraphs
Introduction 1-122 13
Chapter
Kinds of measures to be considered 8-36 15
- Self-defence 9-12 15
- Sanctions 13-15 17
- Retortion 16-19 19
- Reprisals 20-25 20
- Countermeasures 26-27 21
- Reciprocal measures .28-32 22
- Inadimplenti non est adimplendum. Suspension and termination
of treaties 33-35 24
- Subject-matter of the following chapters 36 25
An internationally wrongful act as a precondition 37-38 26
Functions and purposes of measures 39-45 27
The issue of a prior claim for reparation 46-51 30
The impact of dispute settlement obligations 52-62 32
The problem of proportionality 63-68 37
The regime of suspension and termination of treaties as countermeasures 69-83 41
The issue of so-called self-contained regimes 84-88 46
The problem of differently injured States 89-95 48
Substantive limitations issues 96-122 52
- The prohibition of the use of force 97-102 52
- Respect for human rights and other humanitarian values 103-113 58
- Inviolability of specially protected persons 114-117 62
- The relevance of jus cogens and erga omnes obligations 118-122 102
NOTE
Multilateral conventions cited in the present report
Geneva Conventions for the protection of war victims (Geneva, 12 August 1949)
International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966)
International Covenant on Civil and Political Rights (New York, 16 December 1966)
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969)
Source
United Nations, Treaty Series, vol. 75, p. 31.
Ibid., vol. 993, p. 3.
Ibid., vol. 999, p. 171.
Ibid., vol. 1155, p. 331.
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Introduction
The preliminary and second reports of the Special Rapporteur on State responsibility submitted in 1988 and 1989 respectively, dealt with the substantive consequences of an internationally wrongful act, namely cessation (art. 6), restitution in kind (art. 7), reparation by equivalent (arts. 8 and 9), and satisfaction and guarantees of non-repetition (art. 10). The present report deals with what are referred to as the “instrumental” consequences of an internationally wrongful act. Whatever the merits of that distinction, which had been adopted solely for the purposes of a more orderly discussion, the present report addresses itself to the legal issues arising in connection with the measures that may be taken by the injured State or States against a wrongdoing State. Like the two previous reports, this report will deal, in principle, with the measures in question as applied or applicable in the case of delicts, namely of ordinary wrongful acts. It may be necessary to refer, of course, to issues which are more or less analogous and arise in connection with international crimes of States. However, in conformity with the outline submitted in the preliminary report, discussion of these issues is to be kept for the appropriate, next stage.
The task facing the Commission with regard to this part of the topic differs quite considerably, however, from the one it has undertaken so far with regard to the substantive consequences of an internationally wrongful act, as it has defined them. Two main features characterize, de lege lata and de lege ferenda, the regime of instrumental consequences (countermeasures). The first is a drastic reduction, if not a total absence, of any similarities with the regime of responsibility within national legal systems which would make it relatively easy to transplant into international law, in the area of substantive consequences, what an eminent authority, more than half a century ago, called private law sources and analogies. With regard to the major substantive consequences (with the only exception, to some extent, of satisfaction) the international “legislator” faces legal problems so similar to those that have basically been settled for centuries in national law, that it is possible to envisage the essence of the legal relationship between the injured and the wrongdoing State in terms not dissimilar from those of homologous institutions of national systems. Thanks to such obvious analogies, the Commission had little difficulty making basic choices with a high degree of confidence that they were ultimately sound, however numerous the issues which lend themselves to alternative solutions. In contrast, when it comes to the regime of the instrumental consequences, a comparative study of “corresponding” problems of national law—namely of the rules governing the ways and means to ensure the cessation of wrongful conduct and the making good of the physical and moral injuries caused thereby—leads to the very opposite conclusion. Whether in the practice of international law or in legal writings in this area, hardly any similarities can be found.
The second main feature is that in no other area in the “society of States” is the lack of an adequate institutional framework for present or conceivable future regulation of State conduct so keenly felt. Two aspects in particular of the sovereign equality of States—to the principle of which all are committed by the Charter of the United Nations—come to mind. These are the propensity of States, large, medium or small, to refuse to accept any higher authority, and the contrast between the equality of States in law and their inequality in fact, which tempts stronger States to impose their economic, if not military, power despite the principle of equality. It follows that, except in rare and circumscribed cases, the model offered by the remedies to wrongdoing available in national societies is of little avail to the international “legislator”. To put it bluntly, using a very old image, at no time is the Emperor’s nakedness so apparent as when we move from what are rather satisfactory rules on the substantive consequences of State responsibility to the study of the available ways and means of redress. The fact that this is obvious to the point of appearing trite does not diminish in any measure the difficulties to be faced at this juncture.
Indeed, practice in the matter is abundant but increasingly varied in quality and often very hard to assess. Alongside the bulk of cases of classic reprisals taken within a strictly bilateral framework, the conformity of which with what is presumed to be the best interpretation of the old norms and the rules of the Charter of the United Nations is often dubious, two major developments are to be found. On the one hand, there is the timid and not very successful attempt at institutionalization of impartial ways and means at the worldwide or regional levels. On the other hand, there are cases where measures are taken on a partially collective basis by groups of States coming together for the occasion to take concerted action against the “wrongdoer” of the day, for the most part outside of any worldwide institutional framework. Such practices, while following in some sense the classic bilateral “injured State—author State” pattern, do not seem to offer the essential guarantees of regularity and objectivity, whatever the merits of each particular case. At times, it is difficult to identify the precise content of some of the general rules involved in certain of these unilateral practices. Uncertainty is manifest in the doctrine of the so-called self-contained regimes, and it is hard to identify future trends in the development of the law, as well as the avenues the Commission could prudently explore in seeking to improve it and make proposals thereon to the General Assembly, and ultimately to States. One of the crucial aspects of the Commission’s task appears to be to devise ways and means which, by emphasizing the best of lex lata or careful progressive development, could reduce the impact of the great inequality revealed among States in the exercise of their faculté (and possibly obligation) to apply countermeasures, which is such a major cause of concern. It was argued in the second report—though not without challenge—that the secondary rules on cessation and reparation are in a sense relatively more “objective” than many primary rules. In fact, they operate equally to the advantage or disadvantage of all States, because any State, weak or strong, rich or poor, can find itself in the position of injured State or of wrongdoer. While that may apply to substantive consequences however, it could certainly not be said of countermeasures. In the absence of adequate third-party settlement commitments, the powerful or rich countries can the more easily have the advantage over the weak or needy when it comes to exercising the means of redress in question.
Whether the Commission will be able to do more in that respect in the future remains to be seen. The elimination of the main source of ideological conflict and division is certainly a positive factor: though thoroughly novel, it is not free of effects which give cause for concern. At the same time, other signs have recently come to the forefront which are still rather difficult to interpret. One of the most recent is the evocation of the hazy and ambiguous concept of a “new international order”.
The present report has been prepared in the light of the peculiarities of the subject-matter and of the perplexities and preoccupations which they evoke, mainly in the area of crimes. But is there such a clear and firm demarcation line between crimes and the most serious delicts? The main purpose of the present report is to identify problems, opinions and alternatives, and to elicit comment and criticism within the Commission and elsewhere on the basis of which more considered suggestions and proposals could be submitted.
In view of the wide variety of terms used to describe the measures discussed in the present report and the problems they pose, the substantive chapters have been prefaced by a preliminary chapter on terminology. This will reduce the ambiguities that would arise from the variety of meanings attached to those terms in the literature as well as in practice.
Chapter I
I. Kinds of measures to be considered
International practice indicates a variety of measures to which States resort in order to secure fulfilment of the obligations deriving from, or otherwise react to, the commission of an internationally wrongful act. Practice and legal writings classify such measures in separate categories according to factual and juridical affinities. Thus, a variety of terms are to be found, some referring to one and the same concept, while others overlap in many ways and are differently understood according to the stage of historical development and scholarship. The most widely used are self-defence (distinguished to a greater or lesser degree from the wider concept of self-help), sanctions, retortion, reprisals, reciprocity, counter-measures, termination and suspension of treaties, inadimplenti non est adimplendum. In English one also speaks generally of unilateral remedies; in French of réactions décentralisées as opposed, presumably, to réactions centralisées.
Self-defence
Self-defence is perhaps one of the terms most frequently used in practice and analysed in most detail in the literature, mainly in the light of the official positions taken by States and of the dicta of international bodies. However, for the purposes of the instrumental consequences of international delicts, it does not seem necessary to deal in detail with all the complex legal problems involved in the notion of self-defence. Indeed, the Commission has taken a position on self-defence within the framework of article 34 of part 1 of the draft articles. Whatever the present writer’s personal view on the choices then made regarding self-defence as a circumstance precluding wrongfulness, it is considered preferable, at least for the time being, not to abandon the meaning adopted at that time.
From the commentary to article 34 it appears that self-defence has to be understood as “a reaction to… a specific kind of internationally wrongful act”, namely as a unilateral armed reaction against an armed attack. Such a reaction would consist of a “form of armed self-help or self-protection”, exceptionally permitted by the “international legal order” which nowadays “contemplate[s] a genuine and complete ban on the use of force” as “a defence against an armed attack by another subject in breach of the prohibition”. In particular, the Commission, considering “that no codification taking place within the framework and under the auspices of the United Nations should be based on criteria which, from any standpoint whatsoever, do not fully accord with those underlying the Charter, especially when, as in the present case, the subject-matter concerns so sensitive a domain as the maintenance of international peace and security”, concluded that the typical legal meaning of such a notion, for the purposes of the draft articles on State responsibility, can only be “to suspend or negate altogether, in the particular instance concerned, the duty to observe … the general obligation to refrain from the use or threat of force in international relations”. In this way the “Commission intends … to remain faithful to the content and scope of the pertinent rules of the United Nations Charter and to take them as a basis in formulating” draft article 34.
Even if the Commission did not want to take a stand “on the question of any total identity of content between the rule in Article 51 of the Charter and the customary rule of international law on self-defence”, it is very likely that such an identity exists, as has been asserted by ICJ in its judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Just as general (customary) international law included a prohibition of force as broad as that embodied in Article 2, paragraph 4, of the Charter, so it also developed a regime of self-defence identical to the regime set forth in Article 51. As a consequence, there would probably be no room for any of those broader concepts of self-defence which are assumed to have survived the Charter (as inherent customary rights) on the basis of general international law, according to some scholars and to judge from some State practice. Although, as will be demonstrated later, scholarship and practice based upon such a notion are certainly far from negligible, except for the few general remarks in paragraphs 98 and 99 below, their legal merits will be discussed only in connection with the consequences of international crimes, which will be dealt with at a later stage.
The more general concept of self-help—avoided so far by the Commission—would not be useful for the purposes of the present report. It could even be misleading. Of course, in a predominantly inorganic society, in which individual States and groups of States must place so much reliance on the unilateral protection of their rights, the concept of self-help ultimately characterizes the whole range of inter-State relations. But the codification of State responsibility requires a more precise and discriminating terminology in order to stress the differences in legal regime among the various forms of reaction to a wrongful act and to distinguish clearly between the lawful and unlawful forms of such reactions, and their specific features.
Sanctions
The concept of sanctions, already problematic in the general theory of law, is notoriously even more problematic in the literature and practice of international responsibility. Only one thing is clear, namely that it deals with an essentially relative notion which may be defined in a variety of ways. It is proposed, however, to leave aside the broader definitions according to which any one of the consequences of an internationally wrongful act, including not only the measures by which States may secure cessation or reparation but also the substantive right to obtain cessation and/or reparation, could be labelled as a sanction.
A relatively recent authoritative work identifies international sanctions with the “consequences of an [internationally] wrongful act, unfavourable to the offender, provided for or admitted under international law”. Within such a framework a “sanctioning action” would be “any conduct detrimental to the interests of the offending State designed to pursue reparatory, punitive, or possibly preventive purposes, which is either provided for or simply not prohibited by international law”. Understood this way, sanctions would seem to encompass not only such measures as retortion and reprisals—including so-called reciprocal measures (see paras. 28-32 below)—but also self-defence. Other scholars, in recent analyses, submit that the above definition is acceptable in so far as it does not extend the concept to actions taken in self-defence. Such actions would not really be sanctions for the same reasons that distinguish them from reprisals.
A more specific, circumscribed meaning of sanctions seems, however, to prevail in contemporary legal scholarship and to find some support in the work of the Commission itself. In particular, by using in draft article 30 of part l the terms “measures” and “counter-measures”, instead of the term “sanction” proposed by Ago, to describe the so-called “unilateral”, “horizontal” (State-to-State) forms of reaction to an unlawful act, the Commission reserves the term “sanction” for measures adopted by an international body. It referred notably to international measures adopted by such a body following a wrongful act “having serious consequences for the international community as a whole, in particular … to the … measures [adopted by the United Nations] under the system established by the Charter with a view to the maintenance of international peace and security”. It is opined in this report that the rather low degree of “vertically” of the measures taken by international bodies might not really justify the abandonment of a concept which could still serve a useful purpose to describe the function of those strictly unilateral or “horizontal” State measures upon which the effectiveness of international law still so largely depends. Considering the very close relationship between the function of sanctions and the “effectiveness or even the existence of international law” and considering further the essentially inorganic structure of international society and the difficulty of distinguishing between “civil” and “penal” aspects of State responsibility, this concept, like that of reprisals, is still indispensable for the analytical study of international responsibility. However, in line with the choice made by the Commission, it would be better to confine the term “sanctions” to the designation of measures taken by international bodies, except that when it comes to discussing the consequences of crimes, it might be worthwhile to see whether the term “sanctions” could be extended to measures which, although emanating from States collectively, would not qualify as measures taken by an international body.
Retortion
According to most scholars, the term “retortion” would cover those reactions of a State to an unlawful, hostile act, which while they may be hostile per se are not unlawful. The term is used in a slightly different sense by Politis, Oppenheim, Morelli, Skubiszewski and Paniagua Redondo, who confine the term to unfriendly measures taken in response to equally unfriendly acts, thus excluding unfriendly measures taken in response to unlawful acts. The concept would thus exclude (and possibly make it difficult to classify systematically) any unfriendly measures taken by way of reaction to an unlawful act. For the purposes of the present study it is most practical to use the term “retortion” or “retaliation” to indicate hostile but lawful action in response to a prior internationally wrongful act.
In describing retortion some writers like to refer to the sphere of discretionary action of each State. Others prefer to speak either of a sphere of non-regulated conduct of States or of international comitas of nations. Yet others stress the existence in the habitual behaviour of States of a margin favourable to another State or its nationals. Such a margin would encompass measures of retortion, that is, acts which deprive the allegedly responsible State of an advantage to which it had no proper right prior to the wrongful act. In line with the prevailing legal scholarship, the former Special Rapporteur, Mr. Riphagen, includes the suspension of diplomatic relations among retortionary measures. Since, in his opinion, no de lege lata obligation exists in this respect, the suspension of diplomatic relations is neither an unlawful act nor a reprisal. The taking of such a measure is always possible in response to an internationally wrongful act.
Although acts of retortion belong per se to the sphere of permissible, lawful conduct, some authors wonder whether resort thereto is not subject to legal limitations. For instance, Schachter refers to the hypothesis where “an otherwise permissible action is taken for an illegal objective”. De Guttry mentions the possible contradiction between acts of retortion which may endanger “international peace and security, and justice” and the obligation to settle disputes by peaceful means as provided for in Article 2, paragraph 3, of the Charter.
If one accepts the notion of retortion as covering acts not unlawful per se (albeit less than friendly), such a concept should not find a place within the framework of a codification of State responsibility. Although retortionary measures are and may be resorted to by way of reaction to an internationally wrongful act, they do not give rise to the legal problems typifying the other forms of reaction to be considered for the purposes of the draft articles on State responsibility. Acts of retortion may nevertheless call for some attention in view of the fact that international practice does not always distinguish clearly between measures constituting violations of international obligations and those which do not cross the threshold of unlawfulness.
Reprisals
Once self-defence, sanctions and retortion are set aside, a further traditional concept to be considered—the oldest and the most important one—is that of reprisals.
It may be useful to recall that the notion of reprisal originally indicated, in systems involving individuals, the measures taken directly by the aggrieved party for the purpose of securing direct reparation. During the Middle Ages a person who had suffered an injustice in a foreign country and was formally denied satisfaction by that country’s sovereign, could turn to his own sovereign and request lettres de marque. These lettres de marque contained an official authorization on the part of the sovereign for the injured party to resort to reprisals against the property of the nationals of the foreign State present in his own country, or at sea. “Private reprisals” were later replaced by “public” or “general reprisals”, with only “nations” being entitled to resort to them. Vattel described reprisals as follows:
Reprisals are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another—if she refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it—the latter may seize something belonging to the former, and apply it to her own advantage till she obtains payment of what is due to her, together with interest and damages—or keep it as a pledge till she has received ample satisfaction.
Most modern authors see a reprisal as conduct which, “per se unlawful, inasmuch as it would entail the violation of the right of another subject, loses its unlawful character by virtue of being a reaction to a wrongful act committed by that other subject”. Anzilotti defined reprisals as actes objectivement illicites par lesquels un État réagit contre le tort à lui fait par un autre État. A less concise definition was adopted in 1934 by the International Law Institute, whereby reprisals are des mesures de contrainte dérogatoires aux règles ordinaires du droit des gens, prises par un État à la suite d’acte illicite commis à son préjudice par un autre État et ayant pour but d’imposer à celui-ci, au moyen d’un dommage, le respect du droit.
In the contemporary literature a narrow concept of reprisal is proposed by some authors, which would exclude reciprocal measures. The term “reprisal” would thus only cover such reactions to a wrongful act as violate a different norm to that violated by the wrongful act itself: “While reciprocity gives rise to non-performance of an obligation similar (by identity or by equivalence) to the violated obligation, reprisals consist in the nonperformance of a different rule”. The subject of reciprocity will be taken up again later in this report.
According to a widely shared view the term “reprisal” would apply preferably to the measures adopted by way of reaction to an internationally wrongful act by an injured party against the offending State (“horizontal” measures), whereas the term “sanction” would more properly apply, as recalled earlier, to the measures taken against the wrongdoing State by an international body (“vertical” measures).
Given that the connotation the term “reprisal” has acquired in the practice and doctrine of unilateral State reactions to internationally wrongful acts is fairly clear, most such reactions—in so far as they do not qualify as retortion or self-defence—are properly covered, in principle, by that classic term. The reasons which may make other terms preferable are either their greater generality (this is particularly the case of “measures” or “counter-measures”) or the frequent association of acts of reprisal with the notion of measures involving the use of force.
Countermeasures
As noted in the preliminary report, the term “countermeasures” is a newcomer in the terminology of the consequences of an internationally wrongful act. Significant examples of its use are to be found in the Air Service, United States Diplomatic and Consular Staff in Tehran and Military and Paramilitary Activities in and Against Nicaragua decisions. Article 30 of part 1 of the draft articles, as adopted on first reading, uses the term “measure” in the text and “countermeasures” in the title.
Although divergent views are expressed in the literature with regard to both the degree of propriety of the term “countermeasures” and the kinds of measures it covers, writers seem generally inclined to consider this concept as best embracing the generality of the measures that may be resorted to in order to seek cessation or redress. A number of authors note that the Commission itself understood the term in question, as used in article 30 of part 1 of the draft, as including the measures traditionally classified as reprisals as well as the “sanctions” decided upon or applied by international bodies. Although there is no obstacle to such a broad interpretation of the term as used in that draft article, it will be used here (and in further developments on the consequences of delicts) to indicate essentially the so-called unilateral or “horizontal” reactions of one or more States to an internationally wrongful act, to the exclusion of self-defence and retortion. Leaving aside for the time being the choice of the term or terms for the draft articles which will most suitably cover the relevant aspects of the instrumental consequences of internationally wrongful acts, the term “countermeasures” seems (despite our initial reservations) to be the most neutral, and as such the most comprehensive, to describe the various kinds of measures injured States may be lawfully entitled to take severally or jointly against the author State or States. This is without prejudice, for the time being, to any subcategories which the present writer or, principally, the Commission may find to be appropriate.
Reciprocal measures
The main issue here is whether it is justifiable or of practical use to make a distinction between reprisals (or the countermeasures so qualified), on the one hand, and the measures taken by way of mere reciprocity, so to speak, on the other.
It is well-known that the concept (as well as “principle”) of reciprocity applies in various areas of international law and relations.
La reciprocité exprime l’idée d’un retour, d’un lien entre ce qui est donné de part et d’autre. De ce lien peuvent être tirées un certain nombre de conséquences juridiques, en ce qui concerne notamment l’exigibilité des engagements échangés. En comprenant plus largement encore cette idée de retour, pour justifier toute symétrie des attitudes, on trouve la réciprocité à la base de la rétorsion et des représailles.
Moving from such a very broad meaning, a number of authors use the term “reciprocity” to indicate a certain kind of unilateral reaction to an internationally wrongful act. According to the former Special Rapporteur, for example, “[r]eciprocity meant action consisting of nonperformance by the injured State of obligations under the same rule as that breached by the internationally wrongful act, or a rule directly connected therewith”.
More articulately other writers identify two possible kinds of reciprocity. One is reciprocity “by identity” (par identité) in the case where a reaction takes place under “conditions which are exactly the same for both parties”. The other is reciprocity “by equivalent” (par équivalent) in the case where “identity of conditions cannot be ensured”, that is to say, when the States “are not bound by the same obligations”. In the latter case, reciprocity will take the form of non-performance of the counterpart’s quid pro quo obligation (namely, of what Forlati Picchio calls prestazione corrispettiva) or of the non-performance of an obligation of “equal value or equal meaning” (as Zoller calls it) of the infringed reciprocal obligation.
While most writers do not believe that “reciprocity by equivalent” corresponds to types of measures distinct from reprisals—or, more generally, to counter-measures—a few authors seem to maintain that reciprocal measures are distinct and as such should be subject to a different legal regime. The former Special Rapporteur, for his part, while dealing with measures of reciprocity within the general framework of countermeasures does make them the object of a provision separate from the draft article dealing with reprisals. The distinction would be necessary, in his view, because measures by way of reciprocity would be intended to restore the balance between the position of the offending State and that of the injured party, while reprisals would instead be intended to “put pressure” on the offending State in order to secure compliance with the new obligation arising from the wrongful act. As for the conceptual basis of reciprocity, the former Special Rapporteur finds it in the existence of the synallagmatic relationship or échange de prestations which is the object and raison d’être of the norm infringed. Reciprocity would thus be achieved through the suspension, on the part of the injured State, of compliance with the obligations corresponding to those violated by the offending State. Reprisals, on the contrary, would presuppose that no legal link existed between the infringed obligation and the obligations the performance of which is suspended by the injured State.
The question should be settled by a careful study of practice. In particular, the practice of States should indicate whether the reactions qualified as “reciprocal measures” are or should be subject to conditions, limitations or other requirements different from those obtaining for reprisals or countermeasures in general or whether any special features presented by reciprocal measures are simply justified by a more articulate application of the very same principles governing reprisals or countermeasures in general.
Inadimplenti non est adimplendum.
Suspension and termination of treaties
An analogous question arises with regard to the measures commonly referred to by the maxim inadimplenti non est adimplendum and for the suspension and termination of treaties. It is well known that although the tenet inadimplenti non est adimplendum would seem literally to be applicable to non-compliance with any international obligation, irrespective of its conventional or customary origin, it is traditionally used to indicate so-called reciprocity within a treaty context.
The regime of suspension and termination of treaties of course refers instead to the particular consequences of non-compliance with treaty obligations codified in article 60 of the Vienna Convention on the Law of Treaties. Some scholars consider both these consequences as inadimplenti non est adimplendum corollaries. They hold that reciprocity manifests itself when unlawful action and reaction both find a place within the context of the treaty, non-compliance with which would (in given circumstances) justify it. As noted above (paras. 31-32) with regard to the relationship between reprisals and reciprocity, essentially we are dealing again here with just another species of reprisal—except for minor, albeit by no means negligible, specific features. Other scholars, while acknowledging that suspension and termination of treaties are applications of the principle inadimplenti non est adimplendum, instead stress the autonomy of suspension and termination whether falling within the framework of article 60 of the Vienna Convention on the Law of Treaties or not. The autonomy of suspension and termination from reprisals would be justified by differences relating, inter alia, to the purpose of the measures, directly aimed at securing reparation instead of merely coercing the wrongdoer to make provision for it; to the objective, which in the case of suspension or termination would be confined to responding to non-compliance with a treaty obligation; and to the regulation of procedural conditions, which is more detailed.
The problem here is to see whether practice justifies making a distinction between such “conventional” measures as treaty suspension and termination and countermeasures in general, not only for merely descriptive purposes but in view of the legal regime to be codified or otherwise adopted by way of progressive development. As well as the question of so-called reciprocity in general, the issues relating to these two “conventional” measures—issues connected with the relationship between the law of treaties and the law of State responsibility—will require further study before any draft articles are formulated.
Subject-matter of the following chapters
The following chapters are devoted to the identification, in the light of the most authoritative and recent literature, of the various problems of the legal regime of the countermeasures to which States may resort as a consequence of internationally wrongful acts (including reprisals, reciprocity, inadimplenti non est adimplendum, and suspension and termination of treaties). For each set of problems, the report will seek, with the help of the literature, to identify in what direction the codification and development of that regime could proceed, the aim being to elicit comment and advice from members of the Commission and possibly from representatives in the Sixth Committee.
Chapter II
II. An internationally wrongful act as a precondition
While most writers believe, on the basis of well-known jurisprudential dicta, that lawful resort to countermeasures presupposes internationally unlawful conduct of an instant or continuing character, a few scholars seem to believe that resort to measures could be justified even in the presence of a bona fide belief on the part of the injured State that an internationally wrongful act is being or has been committed against it.
Faced with the alternatives of the need for a wrongful act to have been committed and a sufficient bona fide belief on the part of the injured State or the mere allegation that a wrongful act has been committed, the inclination is to opt for the first alternative as the prerequisite for lawful resort to countermeasures. However, this problem is of no real relevance for the present purposes. While it is essential in determining whether a cause of exclusion of wrongfulness does come into play under article 30 of part 1 of the draft as a justification for countermeasures, the prior determination that an internationally wrongful act has been committed is simply a necessary assumption from the viewpoint of the regulation of the content, forms and degree of responsibility. It is obvious, in other words, that the lawfulness of any one of the measures, the legal regime of which the Commission is to cover in part 2 of the draft, necessarily presupposes the existence of a prior unlawful act which is governed by part 1.
Chapter III
III. Functions and purposes of measures
The question of the functions and purposes of measures, albeit controversial, is not without relevance. In the literature, the variety of opinions on the subject is determined to a considerable extent by the general concepts of international responsibility that each scholar takes as a starting point.
Scholars writing less recently who start from the concept of an internationally wrongful act as being predominantly “civil” in nature, so to speak, are inclined to see reprisals as instruments for the pursuit of an essentially restitutive/compensatory end. Those who conceive internationally wrongful acts as delicts of a predominantly “penal” or criminal nature assign to reprisals an afflictive, punitive or retributive function. Article 1 of the International Law Institute’s 1934 resolution states in this respect:
Les représailles sont des mesures de contrainte, dérogatoires aux règles ordinaires du droit des gens, prises par un État, à la suite d’actes illicites commis à son préjudice par un autre État et ayant pour but d’imposer* à celui-ci, au moyen d’un dommage*, le respect du droit*.
In this definition two features are of significance from the present point of view. One is the verb imposer, indicating the coercive role the injured State performs—in either direction—within the essentially “horizontal” legal relationship which obviously characterizes international responsibility. The other feature is the use of the terms dommage and respect du droit, which seem to emphasize, along with the reparatory function implied in respect du droit, the idea of retribution, implicit both in dommage and respect du droit. The Institute would thus seem to have adopted an ambivalent stance. Oppenheim seems to support a concept of measures that is largely compensatory when he stresses the element of compulsion together with an essentially reparatory role of reprisals.
In the post-Second World War literature the doctrinal debate is characterized by the position of those who see in reprisals a measure exclusively instrumental to cessation and reparation, on one side, and those who believe that reprisals are instrumental to both reparation and retribution (punishment), on the other side. The first trend is represented, inter alia, by Skubiszewski, Venezia, Lamberti Zanardi, Žourek, Brownlie, Dupuy, Paniagua Redondo, Zemanek and the American Law Institute’s Restatement of The Law Third.
The second trend is the eclectic or “dual” concept (with some emphasis upon the retributive role) which seems to be preferred by Forlati Picchio, Lattanzi, and perhaps in a more subtle form, by Morelli and Ago. According to the position expressed by the latter:
The peculiarity of a sanction is that its object is essentially punitive or repressive; this punitive purpose may in its turn be exclusive and as such represent an objective per se, or else it may be accompanied by the intention to give a warning against a possible repetition of conduct like that which is being punished, or again it might constitute a means of exerting pressure in order to obtain compensation for a prejudice suffered.
While remaining within this trend, Sereni, Cassese and Conforti do not seem to stress any one of the concurrent functions. Bowett, for his part, while recognizing the punitive function of reprisals, specifies that they serve “to impose reparation for the harm done, or to compel a satisfactory settlement of the dispute created by the initial illegal act, or to compel the delinquent State to abide by the law in the future”.
Some recent works on reprisals have paid particular attention to the study of the function of measures (and the aims the injured State pursues or may pursue thereby). Some give marked predominance to coercion for restitutive/reparatory purposes. Zoller, for example, believes that “peacetime unilateral remedies” serve
…three distinct “purposes”: “reparation”, “coercion”, “punishment”; and assigns to “countermeasures” exclusively the second of these purposes, namely “coercion”.
Elagab identifies the functions of reprisals in “self-protection”, “reciprocity”, and inducement to “an expeditious settlement of a dispute”. Unlike Zoller and others but like Lamberti Zanardi he does not seem to exclude an “executive” function, namely the use of reprisals by the injured State in order to secure reparation directly.
While recognizing the diversity of purposes pursued by reprisals, Dominicé notes that
… la doctrine des représailles a été marquée par l’idée qu’il s’agit d’un acte de vengeance, d’un châtiment, ce qu’elles furent sans doute autrefois. L’institution n’a pas entièrement perdu ce caractère, mais ce n’est plus son trait dominant. Elle doit être comprise dans le contexte de l’autoprotection et à la lumière de sa finalité première qui est la contrainte.
However, he adopts a very elastic concept of the functions of reprisals, such functions varying according to the circumstances, notably to the timing of the injured State’s reaction and the attitude of the offending State. Thus, if the injured State reacts to a continuing violation, the purpose of the measure will be to put a stop to the wrongful conduct and revert to compliance with the obligation that has been infringed, the measure will therefore be of a temporary or provisional character. If instead the reaction is to a refusal to make reparation, the reprisal will have an executive or punitive purpose—and will acquire a final or definitive character. As regards their interaction with dispute settlement procedures, Dominicé seems to believe that, depending on the phase at which the settlement commitments come into play, reprisals may be aimed either at inducing implementation of the settlement procedure or at preserving, by interim measures, the chance to obtain the reparation provided for by the settlement which will eventually be achieved through the settlement procedure.
In the face of the distinctions proposed in the literature it will be necessary to analyse State practice in breadth and in depth. It will be necessary to try to establish whether and to what extent the legal regime of countermeasures is or should be diversified according to the function the countermeasures may be intended to perform. Though it remains to be verified, it is likely that diversification may be justified particularly with regard to the impact of the prior claim for reparation, sommation, compliance with peaceful settlement obligations, and proportionality.
Chapter IV
IV. The issue of a prior claim for reparation
A question frequently raised but rarely dealt with adequately is whether and to what extent lawful resort to reprisals should be preceded by intimations such as protest, demand for cessation and/or reparation, sommation or any other form of communication to the offending State on the part of the aggrieved State or States. Nevertheless, two main trends can be discerned, both related to the general theories on international responsibility.
A minority of legal writers, for whom reprisals are the primary and normal sanction for any internationally wrongful act—reparation being, in a sense, merely a possible “secondary” consequence—take the view, though it is not unanimous, that lawful resort to reprisals is not subject to any intimation, claim or sommation of the kind indicated in the preceding paragraph. There is no need, as a matter of law, to address a demand for cessation or reparation to the offending State before reprisals are taken.
A different position is clearly taken by those who espouse the classical theory of State responsibility whereby reparation and cessation are seen as the principal consequences of an internationally wrongful act while reprisals are seen essentially (although not exclusively) as a means of coercion for obtaining cessation and/or reparation. According to this theory, it is natural to assume that an act of reprisal cannot, as a rule, be lawfully resorted to before a protest and demand made for cessation and/or reparation has first proved unsuccessful.
The essence of the latter view is also held by those scholars who espouse a broader concept of both the substantive and the instrumental consequences of an internationally wrongful act. According to this principle, the consequences of an internationally wrongful act are not merely compensatory or reparatory but also retributive or punitive. The authors who so define the said consequences also share the conventional view that whatever their function (compensatory, retributive or both), reprisals may not lawfully be resorted to unless there has been a prior, unsuccessful demand for cessation and/or reparation.
Contemporary scholarship of course elaborates upon the general trend in a variety of ways, especially with regard to the conditions under which this principle applies and to admissible exceptions. Wengler, for example, thinks that the aggrieved State could lawfully resort to reprisals without any preliminaries in the event of dolus on the part of the law-breaking State. The view has also been expressed that no preliminaries are required for measures to be taken against a State responsible for an international crime. Others see an exception in the case of an internationally wrongful act of a “continuing character” (article 25 of part 1 of the draft articles), or in the case of economic measures. With regard to the latter it is assumed that no preconditions have to be met in the case of such (supposedly milder) forms of coercion. The rules proposed by the former Special Rapporteur envisage a special regime for the case of synallagmatic obligations. In fact, articles 8 to 10 of part 2 of the draft do not even envisage an obligation of prior resort to (available) settlement procedures in the case where the injured State resorts to a non-compliance measure “by way of reciprocity” instead of “by way of reprisal”. More systematically, it has been suggested, in a recent contribution to the subject, that the question whether “a prior demand is a condition of lawful resort to reprisal depends upon the concrete circumstances of the violation and the nature of the obligation breached”. The injured State would be relieved from the duty in question, for example, whenever the measures resorted to consisted in an application of the inadimplenti non est adimplendum principle and were taken by way of reaction to particularly serious violations.
International practice should be a more reliable indicator with regard to the effective legal relevance of a prior demand for reparation. Only on such a basis would it be possible to determine to what an extent a provision which made such a demand a prerequisite for lawful resort to any measures would be the subject merely of codification or of a desirable progressive development of international law. In particular, a study of practice should be more eloquent than is the literature on the frequently mentioned question of sommation: namely, as to whether it is a condition sine qua non of any measure, or a requirement for resort to certain kinds of measures, the lawfulness of other kinds of reactions being subject to less stringent conditions. In particular, it is to be hoped that the indications to be drawn from such an analysis would be less vague in identifying in respect of what kinds of measures the injured State would be exempt from the requirement of sommation. This might make it easier to determine whether sommation would be required for any relatively “bland” measures in general or for so-called reciprocal measures, or only for measures intended for interim protection; as well as whether the matter would depend totally or partially upon the degree of urgency of the remedy or the gravity of the wrongful act. Should practice indicate that this area is not covered satisfactorily de lege lata, improvements might have to be sought, more especially to ensure better protection of prospective weaker parties, as a matter of progressive development.
Chapter V
V. The impact of dispute settlement obligations
Interrelated with the requirement for a prior demand for reparation (sommation) is the question of the impact of any existing obligations of the injured State with regard to dispute settlement procedures. To some extent, the existence of any such obligations—and the injured State’s prior compliance with them—could well condition the lawfulness of resort to all or some unilateral remedies. The legal duty of the injured State to resort to given means of settlement would then place another restriction on its faculté to resort to unilateral measures; and the recognition of such a restriction—de lege lata or de lege ferenda—would be a not insignificant step towards reducing the undesirable consequences of the unilateral determination and enforcement of the right to reparation, in a broad sense, in a milieu as inorganic as the “society of States”. Of course, hitherto efforts to that end have primarily been aimed at curbing arbitrary resort to armed force, whether to assert alleged rights (in legal disputes) or mere interests (in political disputes). Nevertheless, the matter has been rightly recognized as also being of great importance in legally controlling resort to non-forcible measures. Although less dramatic and harmful, such measures can be equally detrimental to the preservation of friendly relations and the development of cooperation among States.
It is unnecessary to recall here the various stages in the development of peaceful settlement procedures which have led to the present state of advancement of this vital area of international law. Suffice it to recall that the most important general step—probably embodied by now in a rule of general international law—is represented by the principle enshrined in Article 2, paragraph 3 (clearly interrelated with Article 2, paragraph 4) of the Charter of the United Nations and by the more specific, though still very general, provisions of Article 33 of that same instrument. It is in the main those provisions, combined of course with the concrete settlement obligations deriving from bilateral or multilateral commitments of a more specific nature (only the most advanced of which are those deriving from the Statute of ICJ and the various instruments connected with Article 36 thereof), that form the basis for such important reaffirmations of the Charter rules as the less than satisfactory formulation of the principle of peaceful settlement contained in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations and the less disappointing, although very general, Manila Declaration on the Peaceful Settlement of International Disputes.
Some legal writers believe that those Charter principles and rules (as presumably reflected in general international law) make it unlawful for any injured State to resort to countermeasures prior to (a) the submission of appropriate demands to the allegedly law-breaking State, as considered above; and (b) bona fide recourse to the peaceful settlement procedures provided for under Article 33 of the Charter. Other legal writers, however, interpret the second of those requirements as applying only to measures involving force, this in view of the fact that only measures of that kind would be likely to endanger international peace and security. Measures short of force (force being mostly understood as military force) could thus lawfully be resorted to even without prior compliance with that requirement.
Whatever the impact of the general rules on peaceful settlement, the question becomes more complex in the presence of dispute settlement obligations which may exist between injured State and law-breaking State by virtue of subjectively and objectively specific instruments (bilateral or multilateral, inorganic or institutional) to which those States may be parties at the relevant time. This means not only the dispute settlement obligations and rights arising from instruments like special agreements (compromis), arbitration clauses, general arbitration or judicial settlement treaties or declarations of acceptance of the jurisdiction of ICJ under the so-called optional clause (Article 36, paragraph 2 of the Court’s Statute) but also to the statutes of a number of international institutions and to the multilateral instruments covering specific areas. A number of writers believe that at least the commitments deriving from such more specific instruments do have a decisive impact—under given conditions—on the lawfulness of measures to be taken. In other words, in given cases, prior recourse to one or more of the procedures envisaged would be a condition of lawful resort to countermeasures.
Article 5 of the International Law Institute’s 1934 resolution according to which
Les représailles même non armées sont interdites quand le respect du droit peut être effectivement assuré* par des procédures de règlement pacifique. En conséquence, elles doivent être considérées comme interdites notamment:
Lorsqu’en vertu du droit en vigueur entre les parties, 1’acte dénoncé comme illicite est de la compétence obligatoire de juges ou d’arbitres ayant compétence aussi pour ordonner, avec la diligence voulue, des mesures provisoires ou conservatoires et que l’État défendeur ne cherche pas à éluder cette jurisdiction ou à en retarder le fonctionnement*;
Lorsqu’une procédure de règlement pacifique est en cours*, dans les conditions envisagées au (1), à moins que les représailles n’aient légitimement été prises auparavant, réserve faite de leur cessation décidée par l’autorité saisie.
…
appears to be less restrictive of the injured State’s discretion. Most of the writers who have dealt with the matter consider it an indispensable condition that the legally available procedure should be of such a nature as effectively to ensure respect for the injured State’s rights. Some writers, for example, believe, on the one hand, that the mere existence (in a general treaty or in an arbitration clause) of an obligation to go to arbitration by an ad hoc agreement (such an obligation being merely a pactum de contrahendo) would not be sufficient to preclude resort to measures. The reprisals resorted to, however, should either have a merely provisional function (interim measures) or be intended to coerce the allegedly law-breaking State to conclude the ad hoc agreement. While believing, on the other hand, that the existence between the parties of a truly compulsory jurisdiction—namely a jurisdictional link allowing the allegedly injured State to start arbitral or judicial proceedings by unilateral application—would normally foreclose direct resort to measures, the same scholars think that no obstacle to resort to unilateral interim measures would exist even in such a case, except where the competent body had no power to issue an order for interim measures or where the allegedly law-breaking State failed to comply with such an order.
According to some legal writers, in addition to the nature, availability and degree of effectiveness of a possibly relevant settlement procedure, account must also be taken of the aim of the measures envisaged or resorted to by the injured State, a matter recently explored by Dominicé, who believes it is necessary to distinguish between reprisals aimed at securing reparation and reprisals which, by way of reaction to a continuing wrongful act, also aim, by cessation, at compliance with the obligation which is being infringed. Only in the former case would a prior sommation, together with an arbitration proposal, be a precondition for resort to reprisals. Resort to reprisals would be lawful in such a case only if the arbitration proposal—and, of course, sommation—had proved of no avail. Where the wrongful conduct was still in progress, interim measures or measures designed to induce cessation and/or arbitration could lawfully be resorted to immediately regardless of settlement procedure commitments. In any event, measures taken by the injured State following non-compliance by the law-breaking State with an arbitral decision, would also be lawful.
In article 10 of part 2 of the draft proposed by the former Special Rapporteur, particular attention is paid to the provisional, protective nature of the measures and to the effectiveness of the power of the competent bodies. According to paragraph 1 of that article no measure (other than a reciprocal measure of the kind contemplated in article 8) could be resorted to by the injured State “until it has exhausted the international procedures for peaceful settlement of the dispute available to it”. Paragraph 2, however, exempts from the prohibition
interim measures of protection taken by the injured State within its jurisdiction, until a competent international court or tribunal, under the applicable international procedure for peaceful settlement of the dispute, has decided on the admissibility of such interim measures of protection;
measures taken by the injured State if the State alleged to have committed the internationally wrongful act fails to comply with an interim measure of protection ordered by such international court or tribunal.
It remains to be seen whether this provision is wholly satisfactory.
Here too, a thorough study of international practice—starting from an articulate categorization of dispute settlement instruments from the viewpoint of their respective degrees of strictness and effectiveness— is indispensable before deciding on the best possible solution. Moreover, the matter should be researched with the dual purpose of precisely assessing lex lata and devising improvements that might reasonably be proposed to advance the law of unilateral countermeasures in the interest of justice (see para. 4 above).
It will certainly be difficult to get States to accept, in part 3 of the draft articles of the proposed convention on State responsibility as envisaged, really significant innovations on the interpretation and application of the rules with regard to the settlement of disputes. Given that the impact of such rules would extend to all areas of international law—namely to the violation of any of the primary norms or principles of written or unwritten international law and the consequences thereof—whatever binding settlement commitments are eventually accepted by States under part 3 would affect the whole range of their relationships and may give rise to controversy. The paucity of binding settlement commitments envisaged in articles 1-5 of part 3 of the draft as proposed by the former Special Rapporteur and the extreme caution manifested by the members of the Commission in the debate on those provisions clearly reflect the difficulties.
While not excluding the possibility that more significant steps might be taken with regard to the content of part 3, the rules to be devised by the Commission with regard to the impact of dispute settlement commitments upon the lawfulness of unilateral reactions to internationally wrongful acts are another matter. In that respect, the view is taken in this report that, once the present status has been adequately assessed, more could and should be done, under appropriate rules, to protect any party in a State responsibility relationship which has accepted dispute settlement commitments and is ready to comply with them. Rules of that kind would simultaneously help to reduce arbitrary resort to measures by the arrogant and, together with the just solution of any controversy arising from any specific internationally wrongful act, to promote the conclusion by States of effective bilateral or multilateral instruments of dispute settlement in increasingly broader areas.
It is on the basis of such considerations that answers should be sought to questions such as whether under Article 2, paragraph 3, and the provisions of Article 33 of the Charter of the United Nations an injured State should refrain from taking measures until it has resorted to one or more of the means listed in the latter article; whether there are any measures an injured State would or should be entitled to take without having to wait until an attempt to use any such means of settlement has proved unsuccessful (for example, interim measures or measures intended to induce the counterpart to comply with any settlement obligations); whether and under what conditions the fact that a settlement or quasi-settlement procedure had progressed to a given stage would restrict the faculté to resort to certain measures.
Chapter VI
VI. The problem of proportionality
One of the most crucial aspects of countermeasures is the question of proportionality. In the period following the First World War, the proportionality rule certainly acquired a more stringent and preciser content: a development concomitant with the condemnation of the use of force. Nevertheless, the notion of proportionality was already in evidence more or less explicitly in 17th, 18th and 19th century writings. It was clearly implied in the doctrinal position taken by Grotius, Vattel and Phillimore, for example, that goods seized by way of reprisal were lawfully appropriated by the injured sovereign, “so far as is necessary to satisfy the original debt that caused, and the expenses incurred by the Reprisal; the residue is to be returned to the Government of the subjects against whom reprisals have been put in force”
Most 20th century authors are of the opinion that a State resorting to reprisals should adhere to the principle of proportionality. Guggenheim agrees with Oppenheim, who holds that “[r]eprisals, be they positive or negative, must be in proportion to the wrong done, and to the amount of compulsion necessary to get reparation”. Overcoming the doubts expressed by Anzilotti in the 1920s and by Strupp in the 1930s the rest of the legal writers seem to be unanimous in considering proportionality as a hard and fast rule of international law. Among the distinguished authors who recognize the principle of proportionality as a general requirement for the legitimacy of reprisals, are Bourquin, Kelsen, Morelli, Wengler, Schachter, Reuter, Brownlie, Tomuschat, Skubiszewski, Giuliano (with Scovazzi and Treves), Graefrath (with Steiniger), and Bowett.
There is no uniformity, however, either in the practice or the scholarship as to the exact concept of proportionality. A difference can be detected, for example, between the doctrine based upon the well-known jurisprudential dictum on the Naulilaa case and the International Law Institute’s definition. The first held that
… même si l’on admettait que le droit des gens n’exige pas que la représaille se mesure approximativement à l’offense, on devrait certainement considérer comme excessives et partant illicites, des représailles hors de toute proportion* avec l’acte qui les a motivées.
The International Law Institute takes an even stricter line apparently requiring that the measure should be proportional to the gravity of the offence and of the damage suffered. A less strict concept seems to emerge from the dictum of the scholars from whom emanated the Air Service Agreement award, according to which “[i]t is generally agreed that all countermeasures must, in the first instance, have some degree of equivalence* with the alleged breach” and “[i]t has been observed, generally, that judging the ‘proportionality’ of countermeasures is not an easy task and can at best be accomplished by approximation*”. On this basis the arbitrators had concluded that “[t]he measures taken by the United States do not appear to be clearly disproportionate when compared to those taken by France”.
According to the former Special Rapporteur’s formulation of article 9, paragraph 2, of part 2 of the draft articles, “the exercise of the right (of injured States) shall not, in its effects, be manifestly disproportionate* to the seriousness of the act”. A similar concept seems to be set forth in section 905, paragraph 1 (b) of the Restatement of the Law Third, according to which an injured State “may resort to countermeasures that might otherwise be unlawful, if such measures … are not out of proportion* to the violation and the injury suffered”.
Another issue emerging from the literature is whether proportionality is required with reference to the wrongful act per se, to the effects thereof, to the specific—mediate or intermediate—aim of the measure, or to a combination of two or more of those elements. While proportionality is often referred to in relation to the violation (namely to the importance of the rule breached and the gravity of the breach), there is also frequent reference to the damage or injury caused by the breach. Reference is also made in the literature to the aims pursued by the countermeasures. The question would be to ascertain whether or not the aims pursued by the injured State’s measures are relevant and the nature and gravity of the breach and the effects thereof, for the purpose of determining if the principle of proportionality has been observed. Indeed, some writers seem to link proportionality both to the injury suffered and the aim pursued while keeping the two elements separate. Skubiszewski, for example, asserts that reprisals must be “proportionate to the injury suffered” adding however that they must not involve “the application of compulsion in an amount that goes beyond what would be necessary to secure a settlement”. According to McDougal (who presumably had in mind, however, violent reprisals)
It may be suggested… that if reprisals are to signify something more than an adventitious “survival of lex talionis”, they should be adapted and related not so much to the past illegality but rather and primarily to the future purpose sought. It is a common emphasis that the legitimate purpose of reprisals is not the infliction of retribution but the deterrence of future unlawfulness. From such emphasis, it would seem to follow that the kind and amount of permissible reprisal violence is that which is reasonably designed so to affect the enemy’s expectation about the costs and gains of reiteration or continuation of its initial unlawful act as to induce the termination of and future abstention from such act. The quantum of permissible reprisal violence, so determined, may under certain circumstances, conceivably be greater than that inflicted in the enemy’s original unlawful act.
Such differences make it advisable to consider State practice and international jurisprudence with the utmost care in order to choose the most suitable formulation of the law. In particular, it must be determined if proportionality should be required not only for the measures qualifying as reprisals stricto sensu, but also for the so-called reciprocal measures; whether the latter are subject instead to stricter requirements such as identity or equivalence or whether they do not really differ from other reprisals except for the fact that they are more perfectly proportional, so to speak, to the gravity of the wrongful act and of the injury caused. It must also be determined, in the light of a thorough analysis of practice, whether the requirement of proportionality should be formulated in broader or stricter terms and in connection with what elements: injury suffered, importance of the rule infringed, aim of the measure resorted to, or any combination of two or more of those elements. More satisfactory and articulate formulations could perhaps be found than those noted under paragraphs 65 and 66 above.
Chapter VII
VII. The regime of suspension and termination of treaties as countermeasures
It is a controversial matter to determine whether the legal regime of countermeasures—particularly with regard to prior demand for reparation, impact of dispute settlement obligations and proportionality—should be adapted where the measures resorted to consist in the termination or suspension of a treaty or of any portion thereof. However, before considering the distinctive features that some legal writers appear to identify in a regime of measures of this kind, a few general remarks must be made.
Suspension and termination are mainly dealt with by writers on international law as a part of the law of treaties drawing inspiration, implicitly or explicitly, from well-known national law rules on suspension and termination of contracts. Within the framework of the law of treaties, suspension and termination are considered as vicissitudes in the life of a treaty, which obviously include the consequences of non-compliance. It is within that context, around suspension and termination, that scholarship and jurisprudence have developed rules governing (a) the kinds of treaty breaches that could justify suspension or termination; (b) the conditions in the presence of which a treaty could be suspended or terminated totally or in part; and (c) the requirements with which the injured State has to comply in order lawfully to proceed to suspension or termination. By way of codification and/or progressive development of the rules of general international law covering such matters the Vienna Conference on the Law of Treaties adopted article 60 and the auxiliary provisions embodied in articles 65-67, 70 and 72 of the 1969 Convention.
The question arises, however, whether the rules of general international law concerning suspension and termination of treaties as unilateral measures are available to the injured State in response to any and every internationally wrongful act. This is a much broader subject, not prejudged by article 60 of the Vienna Convention (or by the above-mentioned auxiliary provisions), as stated explicitly in article 73 of that Convention. It reaches not only beyond the vicissitudes of a given, single treaty (as in the case of article 60 mentioned above) but beyond the sphere of treaty law altogether.
Indeed, article 60, the only one that is of interest in the present context, contemplates suspension and termination of a given treaty, only as possible reactions on the part of the contracting States or any one of them, to a breach—and a material breach at that—of one or more rules of that same treaty. The legal regime of suspension and termination of treaties within the framework of the instrumental consequences of an internationally wrongful act instead covers or should cover (de lege lata or de lege ferenda) such cases as (a) suspension or termination of a treaty (or any rule or part thereof) in response to an infringement of one or more of the obligations deriving from the same treaty; (b) suspension or termination of a treaty (or any rule or part thereof) in response to a breach of any other treaty or treaties (this goes far beyond the area covered roughly by article 60); and (c) suspension or termination of a treaty (or any rule or part thereof) in response to a breach of a rule of general international law, whether an ordinary customary rule or principle or a rule of jus cogens.
It is well known that the interpretation of article 60 is not without controversy. There is also controversy whether and to what extent the content of that article is in line with the existing general law on suspension and termination of treaties. Be that as it may, the provisions set forth in article 60 can in no way be considered as exhausting the legal regime of suspension and termination for the purposes of the general regime of State responsibility. More precisely, the provisions of article 60 do not encompass either (a) the regime of all the measures that can be resorted to in connection with a breach of a given treaty; or (b) the regime of the various measures (suspension and termination included) which may be resorted to in connection with the infringement of any obligation arising from any rule of international law, whether created by treaty or by custom.
It follows that the legal regime of suspension and termination of treaties must first of all be studied in the light of the rules and principles tentatively explored so far with regard to countermeasures in general. The rules include those concerning the substantive and procedural requirements, conditions, limitations and modalities of countermeasures, namely, the obligations or on-era to be satisfied by the injured State prior to resort to measures, and the requirement of proportionality. Notably, it must be determined whether the particular features of suspension and termination affect to any extent and, if so, in what sense, the conditions and requirements that have to be fulfilled for any other countermeasure to be lawfully taken, particularly as regards sommation and dispute settlement obligations.
The very first question that arises is whether suspension and termination may be resorted to by way of reaction to any type—or only to a particular type—of internationally wrongful act. As is known, the law of treaties generally makes a distinction in this regard. While termination would be admissible only in the presence of a material breach of the (same) treaty, suspension would be admissible, under general international law, in case of minor violations. Article 60 of the Vienna Convention is generally considered to have opted for a more restrictive regime of suspension and termination in order to safeguard the continuity and stability of the treaty, requiring in both cases a material breach. Under the law of treaties, at least as set forth in article 60, minor violations should not bring about either termination or suspension.
A choice will have to be made at that point between two possible ways in which the restrictions might operate. The first possibility would be to envisage them as specific, particular rules applicable to the suspension and termination of treaties, within the wider perspective of the law of State responsibility. The second possibility would be to envisage them merely as the result of the operation, as far as suspension and termination are concerned, of the rules or principles governing countermeasures in general, regardless of the treaty framework within which those two remedies apply. The same problem arises for the issues of “qualitative proportionality” and “separability” of the provisions to be suspended or terminated, which are so familiar to those who study the international law of treaties.
It is precisely within the context of suspension or termination of a treaty in response to a violation of the same treaty that the question of “qualitative proportionality” arises. According to Simma, for instance, while qualitative proportionality—or proportionality “in kind”—would not be required by international law for what may be called common reprisals, it would be an essential feature for the lawfulness of suspension or termination within the framework of the law of treaties. Forlati Picchio takes a similar line. The concept of qualitative proportionality (or, what amounts to the same thing, namely the concept of suspension or termination by way of reciprocity) thus leads the majority of writers on the law of treaties to assert that whenever the part of the treaty infringed can be separated from the rest of the treaty, suspension or termination is admissible only in respect of that part of the treaty which is affected by the infringement. The injured State would be bound to honour the rest of the treaty.
In connection with “contractual” or “treaty-based” countermeasures another particular problem arises with regard to requirements such as prior demand for cessation or reparation and prior resort to available settlement procedures. Although a prior demand for cessation or reparation seems generally to be a mandatory precondition for resort to unilateral remedial measures consisting in the violation of a general rule, that requirement does not seem to be equally stringent in the case of resort to suspension of compliance with a treaty obligation or to termination. According to some writers, suspension and termination would seem to be among the rare cases where lawful resort to measures would not be dependent on a prior demand for cessation or reparation. That is the line taken, inter alia, by Reitzer, McNair,and Lattanzi.
Other legal writers instead seem to incline to the view that suspension and termination, like other forms of unilateral reaction, should also be preceded by a demand for compliance with the “primary” or “secondary” obligations. Guggenheim, for instance, thinks that the unilateral termination of a treaty for non-compliance should not take place until a sommation, accompanied by a reasonable deadline for the lawbreaker to comply with the injured State’s claim, has proved fruitless. Simma considers that both practice and jurisprudence indicate that:
When a State esteems that it has been injured by a material breach of a treaty, it is not at liberty immediately to resort to unilateral termination, but has to follow a certain procedure. It will normally start with the registering of a reclamation for resumption of performance or for a reply to the claim of termination within a reasonable time. Only on those rather rare occasions where the defaulting State admits from the beginning that it has substantially violated the agreement concerned or where it does not reply at all to the reclamation, may the innocent State then proceed with the termination. In all cases, however, where the allegedly defaulting State denies either the fact of the violation or its character of being a material breach there will be a “difference”, a legal solution of which is only possible with the agreement of the parties. In any case, it is a difference highly suitable for settlement by reference to an international court or tribunal. Unilateral termination of the broken treaty is only permitted after the State injured by the breach has tried in vain to arrive at an agreement with the violator.
Fitzmaurice in his reports to the Commission on the law of treaties also took that position. According to him, the parties intending to claim termination or invalidity of the treaty must notify and motivate their claim to the counterpart, and then, after the claim has been rejected or not satisfied within a reasonable time limit, offer to submit the question to the judgement of an arbitral tribunal or, failing acceptance of arbitration, to ICJ. Only if such an offer is not accepted within a reasonable time limit, may performance of the treaty be unilaterally suspended; and only after the lapse of six months without any acceptance of the settlement procedures proposal, may the treaty be terminated by unilateral decision.
Once again, a study of international practice will show—de lege lata as well as de lege ferenda—whether resort to suspension or termination should be subject to any ad hoc regime, and whether such resort should be subject to different, presumably less strict, conditions and requirements than those applying to countermeasures taken outside of a treaty framework.
A point which is of relevance to the absolute limitations placed on unilateral measures in general but raises particular problems in connection with treaty suspension or termination relates to cases where resort to one or the other of such remedies would affect the rights of States other than the law-breaking State. The question here is whether and to what extent it may be lawful for a State to suspend or terminate a multilateral treaty, by way of countermeasure. Writers are notoriously at odds on this point. Fitzmaurice, for example, considering the range of obligations of various kinds deriving from a multilateral treaty, proposes a distinction. On one side he places reciprocal obligations, that is to say, “reciprocal” or “divisible” obligations. On the other, he places the obligations requiring integral compliance (that is to say, “indivisible” or “integral” obligations). A suspension or termination measure could thus lawfully be taken by the injured State unilaterally under the generally applicable (relative or absolute) limitations or conditions, with respect to any “divisible” or “reciprocal” obligation binding the injured State vis-à-vis the wrongdoing State. On the contrary, no suspension or termination measure could lawfully be taken by the injured State unilaterally with regard to any “indivisible” or “integral” obligation (deriving from the multilateral treaty that has been infringed), non-compliance with which would constitute a violation of the treaty to the detriment of States parties to the treaty other than the wrongdoing State and would go beyond the mere legal injury inherent in the infringement of a treaty to which a State is a party.
Article 11, paragraph 1, of part 2 of the draft, as proposed by the former Special Rapporteur in 1984, reflects, in part, the views just recalled. It reads:
1. The injured State is not entitled to suspend the performance of its obligations towards the State which has committed the internationally wrongful act to the extent that such obligations are stipulated in a multilateral treaty to which both States are parties and it is established that:
- the failure to perform such obligations by one State party necessarily affects the exercise of the rights or the performance of obligations of all other States parties to the treaty; or
- such obligations are stipulated for the protection of collective interests of the States parties to the multilateral treaty; or
- such obligations are stipulated for the protection of individual persons irrespective of their nationality.
The question will be to see whether suspension and termination of multilateral treaties, or of certain kinds of multilateral treaties, should be dealt with separately in the draft or whether the problem should be looked at from the different, broader perspective of the violation, by way of countermeasure, of rules setting forth erga omnes obligations. It would thus be covered in a more general way, regardless of the contractual or customary nature of the rules involved.
Chapter VIII
VIII. The issue of so-called self-contained regimes
The question of the relationship between the general rules on State responsibility, on the one hand, and, on the other, of any ad hoc rules that a given treaty or set of treaties may establish to cover cases of violation, is linked to that of the possible “specificity” of measures consisting in the infringement of treaty rules. This problem seems to arise in the presence of those treaty-based systems or combinations of systems which tend to address, within their own contractual or special framework, the legal regime governing a considerable number of relationships among the States parties, including in particular the consequences of any breaches of the obligations of States parties under the system. Such consequences include, in some cases, special, sometimes institutionalized, measures against violations. It follows that such systems may, to some extent, affect, with varying degrees of explicitness, the faculté of States parties to resort to the remedial measures which are open to them under general international law. It would appear to be in situations of this kind that some legal scholars refer, within the framework of the law of State responsibility, to “self-contained” regimes.
The most typical—and perhaps the most likely—example of such regimes is probably the “system” set up by the treaties establishing the European Communities and the relations resulting therefrom. Another example frequently evoked by writers, including the previous Special Rapporteur, would be the “conventional system created by human rights treaties.” A self-contained regime consisting of a particularly obvious combination of customary as well as treaty rules would be, according to an ICJ dictum, “the law of diplomatic relations”. The question arising with regard to these “regimes” is whether the existence of remedies—sometimes more advanced—for which they make specific provision, affects to any degree the possibility for legal recourse by States parties to the measures provided for, or otherwise lawful, under general international law.
It should immediately be added, however, that although a problem of “specificity” is generally seen as arising particularly in connection with the regime of countermeasures—and perhaps rightly so—it is not confined thereto. Any real or alleged self-contained regime may also concern other consequences of internationally wrongful acts, first of all the substantive consequences covered by draft articles 6 to 10, which are at present before the Drafting Committee.
The problem concerns more or less the entire scope of part 2 of the draft. As such, it should not be dealt with in the section of part 2 that covers countermeasures, but more appropriately in the section or chapter of part 2 covering the general principles of the content, forms and degrees of international responsibility. In particular, it is a matter in many ways close to the general problem covered by draft article 2 of that chapter. While not excluding the possibility of dealing with it provisionally in one of the final provisions of the chapter at present under consideration, it must be kept in mind that the relevant draft article will have to be inserted in its proper place during the second reading of the chapter entitled “General principles”.
To enter into a discussion here of the so-called self-contained regimes would therefore be premature, all the more so when the substantial volume of material collected so far on the subject raises the question whether and to what extent the concept of “self-contained” regimes is really relevant to the solution of the problems of State responsibility in connection with which it has been brought into the picture so far.
Chapter IX
IX. The problem of differently injured States
A further problem is how to identify precisely the State or States which, in a particular case, are entitled—or in given instances obliged—to react to an internationally wrongful act. Together with the perception of the essentially inorganic nature of the legal relationships normally arising from internationally wrongful acts, the starting point of any consideration of the matter is obviously the concept of an injured State, a definition of which has in fact been envisaged as an essential element of part 2 of the draft. This is to be found in article 5 as proposed in 1984 and adopted on first reading by the Commission in 1985. Whatever the merits of that definition—doubts about the appropriateness of which have been formulated within the Commission and beyond—it seems obvious that differences of degree of involvement surely exist amongst injured States from the viewpoint of the nature and extent of the injury suffered.
A number of qualifiers are thus being developed by scholars and in the Commission under the general notion or definition of an “injured State”. At one extreme are found terms such as “directly” injured, affected or involved State or States, or “specially” affected State or States, and—at the other extreme—“non-directly” or “indirectly” injured or affected or involved States, or “non-specially” affected or injured States. Between these two extremes are found concepts such as “more directly” or “less directly” affected or involved States. Another concept used is that of “third” State or States. Considering, however, that a State may be in a “third party” position either in relation to a primary obligation or in relation to a given breach (secondary obligation), the term “third” may be misleading. In the latter sense it would merely be a synonym for non-injured State, obviously in the position of “third” party in relation to the wrongful act, and, as such, not meeting any of the conditions of the definition embodied in draft article 5 of part 2, for example. However, while accepting that definition as a starting point for the time being, the problem seems to be not so much to determine whether or not a State belongs to the general class of injured States, as to take account of the fact that that general class includes different categories of States from the point of view of the injury, and to determine what the consequences of that are for each State’s position with regard to its rights, facultés, and possibly its duties.
The attention of scholars has been drawn to this problem—especially since the adoption of article 19 of part 1—in connection with wrongful acts constituting violations of erga omnes obligations, more particularly with regard to the consequences of crimes. The problem related in particular to the possible response (against wrongful acts of this kind) by States other than the State which, as a victim of a gross violation, was the “directly” or “most directly” affected—such States acting, jointly or severally, possibly within the framework of an institutionalized regime. It did not take long, however, for scholars and Commission members to realize that similar problems arise in the case of any other wrongful acts—notably delicts—which, in addition to the wrongdoer and one or more directly affected States, involve other States. So far, the most frequently studied of these situations has been that of the violation of rules of multilateral treaties or of certain kinds of rules contained in such treaties, notably those which give rise to international or “integral” rights and obligations (peace treaties, disarmament treaties, treaties on the environment); non-compliance with decisions of international judicial bodies; non-compliance, not necessarily gross or on a mass scale, with human rights obligations; violation of the freedom of the high seas; abuse of natural resources of common interest; and other situations. The Commission has expressly considered the case of such other States by covering them in subparagraphs (e) (ii) and (iii) and (f ) of paragraph 2 of the above-cited article 5. According to these provisions “injured State” means:
(e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of customary international law, any other State party to the multilateral treaty or bound by the relevant rule of customary international law, if it is established that:
…
the infringement of the right by the act of a State necessarily affects the enjoyment of the rights or the performance of the obligations of the other States parties to the multilateral treaty or bound by the rule of customary international law; or
the right has been created or is established for the protection of human rights and fundamental freedoms;
(f ) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the protection of the collective interests of the States parties thereto.
Once States which have “less-directly” suffered from a wrongful act are defined as “injured” in accordance with article 5, thus qualifying as parties in the responsibility relationship, the problem is to determine whether or not their rights and facultés (and possibly duties) stemming from the wrongful act fall under the same regime as those of the “directly” or “specially” affected State and, if not, under which regime. The most difficult problem in that respect is precisely to know whether the so-called “indirectly injured” States are entitled to resort to countermeasures and, if so, whether such resort is subject to different, presumably stricter, limitations or conditions than those applying to the measures taken by the “specially affected” State. The literature, which is not abundant on this point, appears to be divided. Some authors deny the right of “non-directly injured” States to resort to measures. Others, on the contrary, accept that possibility, at least in certain cases.
It should be noted, however, that the matter discussed in this chapter concerns more than just counter-measures. Although largely neglected in the literature, there is also—and, in a sense, foremost—the question of determining whether the so-called non-directly injured States are entitled to claim compliance with the substantive obligations involved in the responsibility relationship, namely cessation, restitution in kind, reparation by equivalent and satisfaction, including guarantees of non-repetition. According to Riphagen, for example, a “non-directly” injured State could “not claim damages ex tunc, since by definition there is no injury to its material interest. But a re-establishment ex nunc (to the direct benefit of the injured State) and a guarantee ex ante against further breaches may well be in the (non-material) interest of that State”.
It is thus clear that the problems arising from the degree to which a State may be injured reach beyond the subject of countermeasures, because they also concern the substantive consequences; with respect to crimes, there are even greater complications, because they concern both substantive and instrumental consequences. For the time being, discussion of the latter will be deferred until the Commission takes up the subject of crimes; at the present juncture efforts should be concentrated on a more thorough analysis of practice and scholarship with regard to the position of the so-called non-directly injured States, the aim being to draft an ad hoc section for the part of the draft covering the consequences of delicts.
For this section, it is proposed to determine, in the light of the practice of States and international tribunals, whether, in addition to the differentiation among kinds of injured States made in draft article 5 as already adopted—though not without criticism—mention should be made of the differences in legal status between “specially” affected States, on the one hand, and “non-directly” affected States, on the other. It must be determined in particular whether the so-called non-directly affected States (namely, the injured States envisaged in the provisions cited in paragraph 91 above), should enjoy the right to claim cessation, restitution in kind, reparation by equivalent, and/or satisfaction, including guarantees of non-repetition; the faculté to resort to counter-measures and, if so, whether such a faculté is or should be subject to conditions and restrictions identical to or different from those obtaining for the measures available to “specially” affected States. It is also necessary to determine whether further differentiation needs to be made within the general category of “non-directly” affected States or whether, contrary to the hypotheses formulated so far, no real differences exist or should exist with respect to the consequences of the wrongful acts currently under discussion, based on the different “position” of “directly” or “indirectly” affected States as “active parties” in the responsibility relationship. In a sense, this distinction may well be a false concept perhaps resulting from some imprecision in the approach to the problem of the determination of the active side of the responsibility relationship. Only after clarifying this point would it be possible to decide whether the rights and facultés (and possibly duties) of “non-directly” affected States should be covered in a separate section or chapter, or whether any differences in the position of the “non-directly” affected States should be covered by appropriate amendments to the draft articles dealing with the position of “directly” affected States. There is, of course, a third possibility, namely that neither separate articles nor an adaptation of general articles would really be required. It is possible, in other words, that the position of the “non-directly” injured State with regard to both substantive rights and countermeasures should be left to depend simply on the normal application of the general rules governing the substantive and instrumental consequences of internationally wrongful acts. This third possibility may be the most likely in view of the fact that the peculiarities of the position of “non-directly” affected States may well be just a matter of degree.
Chapter X
Substantive limitations issues
The most important aspect of the area now under review is, of course, the consideration of issues relating to the means injured States may lawfully employ—severally or jointly—in the exercise of their faculté of unilateral reaction to an internationally wrongful act. These issues are the following: (a) the unlawfulness of resort to force; (b) respect for human rights in the widest sense; (c) the inviolability of diplomatic and consular envoys; (d) compliance with imperative rules and erga omnes obligations. The nature of the difficulties are such that separate, albeit brief, assessments are required of each of the main issues involved.
The prohibition of the use of force
The main proposition advanced by legal writers—and confirmed by a number of authoritative pronouncements of international political and judicial bodies—is of course the condemnation of any form of armed reprisals or countermeasures. More precisely, the prevailing view is that such a condemnation is not just a matter of contractual law, in the form of the Charter of the United Nations, but that, together with the whole content of Article 2, paragraph 4, of the Charter, the prohibition of the use of force could be considered as part and parcel of general, unwritten international law.
According to other views, based on the persistence of certain practices, there could be forms of unilateral (individual or collective) resort to force that have survived the sweeping prohibition of Article 2, paragraph 4, or been revived as a justifiable form of reaction, under the concept of forcible or armed reprisals or self-defence. For some of the writers who hold that view—with varying degrees of conviction—“a total outlawry of armed reprisals … presupposed a degree of community cohesiveness and, with it, a capacity for collective action to suppress any resort to unlawful force which has simply not been achieved”. A further cause for resort to forcible measures would seem to be the enormous increase in guerrilla activities in recent decades. With respect to the law on armed reprisals these activities pose a special problem. Analysing incidents in the Israeli-Palestinian context brought before the Security Council, one writer concluded that the Security Council has never been able to stop the practice of reprisals and may now be moving towards a partial acceptance of “reasonable” reprisals. He observed that if this trend continues, we shall achieve a position which, while reprisals remain illegal de jure, they become accepted de facto. Another writer goes decidedly further when he observes that the use of armed coercion has in practice proved essential to protect the purposes of the Charter:
There is a need perhaps for some kind of reinstitution of reprisal—if not in the most classical sense, then in a more limited sense—as some kind of sanctioning instrument under international law.
As regards the legal or quasi-legal responses proposed, three different lines of thought have been put forward in order to reduce the discrepancy between the law and the actual practice. One writer tries to develop a framework of criteria (of reasonableness); armed measures which met those criteria would not be condemned.
The result redefines the right of an individual State to use violence in a manner that minimizes the devolution from the generally agreed interpretations of Charter norms.
Another writer suggests that the legal notion of self-defence should be interpreted in a broad sense so as to comprise forcible measures. Yet another seems to attempt to combine both methods, while stressing the need for effective international fact-finding missions.
The practice of States which has prompted such writings—though not very abundant and geographically limited—certainly raises questions. The main question is whether the absolute prohibition on the use of force contained in Article 2, paragraph 4, of the Charter of the United Nations applies even in cases of wrongful acts involving force but not qualifying as armed attacks (aggression) and therefore not justifying self-defence as strictly defined, or whether exceptions to that strict rule are admissible or tolerable and, if so, under what circumstances and what legal conditions. According to the writings in question, examples would presumably include armed reaction to forms of indirect aggression and terrorism. It should not be overlooked, however, that the problem of lawfulness arises also in connection with forcible reprisals resorted to by way of reaction to particularly serious wrongful acts, although not involving armed force. We refer to cases of resort to force by way of reaction to “economic aggression”, to violations of self-determination, or in order to safeguard the lives of nationals in a foreign State or in pursuit of other, non-national, humanitarian purposes.
While reserving any conclusion as to resort to force by way of reaction to wrongful acts qualified as crimes of States under article 19 of part 1 of the draft, no definite conclusions can be reached with regard to the applicability of the positions taken by the legal writers in question to countermeasures against ordinary wrongful acts. It is only possible to indicate, subject to closer analysis, an inclination towards the view that they should have no place, even de jure condito, within the framework of the consequences of international delicts. It was not possible to envisage how the Commission could accept any derogation from the prohibition of armed reprisals as implied in Article 2, paragraph 4, of the Charter and emphasized in the relevant part of the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations. The arguments on the necessity of altering current prohibitions in order to adapt them to the realities of State practice are not convincing.
Another problem which has been raised in legal writings and practice with reference to the prohibition of the use of force, is its possible impact on the lawfulness of economic coercion (or certain kinds thereof) as a form of countermeasure. According to the most widely accepted interpretation of the prohibition of force, notably of Article 2, paragraph 4, of the Charter of the United Nations (and any “equivalent” rule of general international law), the term “force” means military force only. Any objectionable forms of economic coercion could only be condemned—as some of them are expressly in international instruments other than the Charter—as part of a separate rule prohibiting intervention or certain forms of intervention. In particular, economic coercive measures would be prohibited—by the OAS Charter, General Assembly resolution 2625 (XXV), and other instruments, including Principle VI of the Final Act of the Conference on Security and Cooperation in Europe— whenever they were resorted to against a State “in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind”.
The opposite argument, according to which Article 2, paragraph 4, of the Charter of the United Nations would prohibit not only armed reprisals but also economic coercion, was found initially in official statements and legal writings from developing and socialist countries but, following the Arab oil embargo of 1973, even some Western authors supported this position. According to a different opinion, based inter alia on the absence from the Charter of the United Nations of any provision, other than Article 2, paragraph 4, condemning individual coercive measures, it would be more correct to think that whenever a measure of economic coercion assumed such features and dimensions as to give rise to consequences amounting to a “strangulation” of the target State, the form of violence it implies does not differ in aim or result from the exercise of a resort to armed force. It must be admitted, in the presence of such a possibility, that the term “force” means more than just armed force. Indeed, the prohibition contained in Article 2, paragraph 4, of the Charter should be logically understood to “embrace also measures of economic or political pressure applied either to such extent and with such intensity as to be an equivalent of an armed aggression or, in any case—failing such an extreme—in order to force the will of the victim State and secure undue advantages” for the acting State. In view of the variety of opinions, a precise investigation of the practice of States is essential in order to determine whether resort to certain kinds of economic measures against a wrongdoing State constitute, under certain extreme conditions, an unlawful resort to force. If that were so, it would further have to be determined whether such a practice would be prohibited under the same (written and unwritten) rule prohibiting armed force or under the rule prohibiting given forms of intervention.
Respect for human rights and other humanitarian values
The need to set limits on reprisals in response to the “supreme dictates of civilization and humanity” seems initially to have manifested itself mainly in the regulation of belligerent reprisals. It was indeed principally in time of war that compliance with those dictates was most often sacrificed. However, the belief in the existence of inviolable ethical limits to the exercise of reprisals led to early recognition that the limits placed on reprisals in wartime should apply a fortiori in time of peace. Again, a case in point is the principle applied in the Portuguese Colonies case (Naulilaa incident), according to which, for a reprisal to be lawful it must be limitée par les expériences de l’humanité et les règles de la bonne foi applicables dans les rapports d’État à État.
The “supreme dictates” in question (as applying in peacetime) affected in the first place the limits to be placed on reprisals so that they could not unlawfully cause injury to foreign nationals. Whatever the seriousness of the violation involved, the injured State could not take measures which trampled upon certain fundamental principles of humanity to the detriment of the offending State’s nationals present in its territory, for example, by violating their right to life or their right not to be subjected to physical or moral violence, notably to torture, slavery or any other indignity.
In addition to the requirement to protect foreign nationals, the importance of the respect for fundamental humanitarian principles in general was also stressed early on. For example, in the course of the debates in the Assembly of the League of Nations on the implementation and amendment of Article 16 of the Covenant with regard to the economic measures to be applied in case of aggression, the concern was repeatedly voiced that in no event should humanitarian relations be endangered. The 1934 resolution of the International Law Institute states in paragraph 4 of article 6 that in the exercise of reprisals a State must s’abstenir de toute mesure de rigueur qui serait contraire aux lois de l’humanité et aux exigences de la conscience publique.
The impact of the general principles in question has been strengthened and specified thanks to the relatively recent development of that substantial corpus of rules which constitutes the contemporary law of human rights. Leaving aside the question whether and to what extent the treaty rules in the field of human rights have become or are close to becoming a part of general international law, there can be no doubt that this development brings about a further restriction of the liberty of States to resort to forms of reprisal likely to imperil the human interests for the protection of which such a development has taken place.
Explicit indications to that effect are contained in provisions of international instruments on human rights. Article 4 of the International Covenant on Civil and Political Rights provides that States “may take measures derogating from their obligations under the present Covenant” only “in time of public emergency which threatens the life of the nation’’; and even under circumstances of that kind States are not to take measures derogating from certain fundamental principles of humanity. It has been inferred that the rights contemplated in the Covenant cannot be infringed by measures taken by way of reaction to an internationally wrongful act. Article 60, paragraph 5, of the Vienna Convention on the Law of Treaties according to which suspension or termination—in whole or in part—of a treaty in case of a material breach shall in no case be resorted to with regard “to provisions relating to the protection of the human person contained in treaties of a humanitarian character” is also relevant. Schachter is of the opinion that “treaties covered by this paragraph clearly include the Geneva Conventions for the protection of victims of war, the various human rights treaties, and conventions on the status of refugees, genocide and slavery”.
It remains, of course, to be seen to what extent rules such as those in which no explicit mention is made of measures of reaction to an internationally wrongful act condition the choices of injured States with regard to measures under general international law. In particular, the question may be asked whether and to what extent the choices might be limited by the International Covenant on Economic, Social and Cultural Rights.
The rules evoked in the preceding paragraphs are interpreted quite extensively by some authors. They affirm, for example, that limitations cannot only be derived from treaties and general rules on human rights (or from the humanitarian law of armed conflicts) but from any rules intended in any way to safeguard the moral and material interests of the human person. An injured State could thus not react by terminating (or even suspending) a treaty providing forms of economic assistance to the offending State intended to better the conditions of a part of the latter’s population. This should safeguard, for example, the obligations of injured States in the area of international cooperation for development as envisaged within the framework of the New International Economic Order. Others, such as Conforti, take the contrary view.
The difficulty of establishing the threshold beyond which countermeasures are or should be condemned as infringing humanitarian obligations in a broad sense lies in the precise definition of the human rights and interests the violation of which would not be permitted even in reaction to a State’s unlawful act. It is certain that not all human rights or individual interests could reasonably qualify.
An obvious instance is the question whether the faculté to resort to reprisals is in any way limited by the rules protecting the property of nationals abroad, particularly business assets. A variety of trends may be identified among legal writers. According to some writers, reprisals against the private property of nationals of the offending State would be unlawful in that ownership would qualify among the wider category of human rights covered by the rules considered in the preceding paragraphs. Other writers believe that, a fortiori in peacetime, the jus in bello prohibition on the taking of private property should be applied: “The taking by a State of the property of foreigners in the pursuit even of actual hostilities against their home-country is not justified under general international law. It will therefore be justified even less as a mere measure of reprisal”. Schachter believes, however, that this opinion is not confirmed by the prevailing practice:
Blocking and confiscation of private property of nationals of an enemy State have been common in time of war and generally condoned as wartime measures. However, the seizure of private property as countermeasure against an offending State in time of peace has been characterized as illegal by some jurists but nonetheless carried out by States in recent years.
Some commentators on the use of measures involving foreign private property propose a distinction between definitive confiscation of property, on the one hand, and temporary measures such as seizure, blocking, freezing, and the like, on the other hand, the first being generally considered unlawful while the second would not be prohibited. In Schachter’s view, the inadmissibility of the first type of measure stems from the criterion of reasonableness rather than from incompatibility with the raison d’être of reprisals. It would be on grounds of reasonableness, in particular, that the injured State should exercise relative restraint. According to De Guttry, there is increasingly a feeling that it is unjust to sacrifice the private property of individuals who normally have no part whatsoever in the wrongful conduct of the offending States: this would gradually lead—albeit not without contradictions—to confining reprisals of this kind to extreme cases. More than half a century ago, the International Law Institute took a similar line in its resolution relating to the regime of reprisals in peacetime, containing a suggestion to:
Limiter les effets des représailles à l’État contre qui elles sont dirigées, en respectant, dans toute la mesure du possible*, tant les droits des particuliers* que ceux des États tiers.
Although the most obvious issue is to determine how far countermeasures may go before they encounter the barrier of the right to private property, more thought should be given to other areas of humanitarian interests where similar problems arise. Examples are the property of cultural institutions, works of art, pharmaceutical industries, and public health facilities.
Inviolability of specially protected persons
Among authors there is a widespread notion that acts of reprisal would be unlawful if taken in violation of international obligations aimed at the protection of diplomatic envoys and heads of State. Oppenheim states that:
… individuals enjoying the privilege of extra-territoriality while abroad such as heads of States and diplomatic envoys, may not be made the object of reprisals, although this has occasionally been done in practice.
Only a few authors, it seems, question the existence of a rule of general international law condemning acts of coercion, though not otherwise unlawful, when directed against diplomatic envoys.
Some of the writers who discuss the rationale for the limitation in question seem to believe that it derives from the primary—and peremptory—rules concerning the protection of diplomatic envoys. Other writers argue the matter on the ground of the “self-contained” nature or peculiarities of the law of diplomatic relations. Among them is the former Special Rapporteur, according to whom the limitation in question would be a case “which does not lend itself to generalization within the context of the inadmissibility of specific reprisals. Indeed, the case seems rather to fall within the scope of a deviation from the general rules concerning the legal consequences of internationally wrongful acts, implicitly provided for at the time the primary relationship is established”.
A more articulate position is taken by others. One of them, for example, wonders which of the obligations among those intended for the protection of diplomatic envoys, would be inviolable by way of reprisals. According to this writer, international practice indicates that not all the forms of reprisal against diplomats are considered unlawful. It would be difficult, for example, to categorize as such measures enacted to restrict the freedom of movement of diplomatic envoys. It would consequently be possible, according to this writer, to affirm that the unlawfulness of reprisals against diplomatic envoys encompasses essentially those measures directed against the physical person of diplomats and consisting mainly, but not exclusively, in a breach of the rule of inviolability of the person. The rationale for the restriction would, of course, reside in the need to safeguard, in all circumstances, the special protection which is reserved to diplomatic envoys in view of the particular functions they perform.
An adequate analysis of the practice should make it possible to adopt the most appropriate solution, de lege lata and from the viewpoint of progressive development. Here as elsewhere it should be considered that any restrictions inevitably reduce the possibility of reaction in even more sensitive areas than that of diplomatic relations. These concern areas of more general humanitarian interest, including vital economic relations.
The relevance of jus cogens and erga omnes obligations
In addition to the absolute limits considered so far (as deriving from specific rules or principles of general international law), the fact that reprisals may be subject to further restrictions should also be considered, in particular, those which may derive from jus cogens.
Restrictions on the right of reprisal deriving from jus cogens are generally not mentioned by legal writers prior to the Second World War. More recently Reuter, Riphagen, Zemanek, Lattanzi, Gaja, Alland, Elagab, and Sicilianos refer to jus cogens as a general limitation. Although jus cogens was originally considered (in the Vienna Convention on the Law of Treaties) in connection with the inadmissibility of conventional derogation from fundamental general rules,
It would be illogical… at the same time [to] admit that the breach of an obligation imposed by a peremptory norm is justified only because another State had previously violated an international obligation. The same applies when the previous violation also concerns an obligation imposed by a peremptory norm; the very existence of such a category of norms implies that there is a general interest in international society that they should be respected.
Indeed, some writers lament the absence from the text of article 30 of part 1 of the draft articles of a clear reference to contrast it with jus cogens rules as an exception to the exclusion of unlawfulness of measures taken by way of reaction to an internationally wrongful act. However, Gaja’s comment that such an exception is implied in the expression “measure legitimate under international law” appearing in article 30 is correct. By its implied reference to the regime of reprisals, that expression would exclude the lawfulness of measures involving a violation of a peremptory rule. Such an interpretation is also supported by the express inclusion of the restriction in Riphagen’s draft article 12 (b).
The restriction presently under discussion is extended by Lattanzi (from jus cogens rules) to any rule creating erga omnes rights and obligations. According to him:
… there can be no doubt that the lawfulness of a reprisal consisting in a violation of erga omnes rules is excluded precisely by the fact that the violation of an obligation to the detriment of one State in such a case simultaneously represents a violation of the same obligation to the detriment of all those to whom the rule applies. It would be inadmissible for the sanction imposed on one State to constitute the violation of an obligation towards another State.
In Lattanzi’s view, erga omnes rules are so structured that, on the one hand, any State party can claim compliance and, on the other hand, no State party may lawfully react to the breach of those rules by another breach. The same point is made by Gaja when he states:
… one of the cases in which international law cannot allow counter-measures … is when the obligation which is violated operates in specific cases towards all other States: the rights of innocent States would then necessarily be infringed.
It will not be overlooked that a problem largely similar to that of erga omnes obligations has already been touched upon with regard to suspension and termination of treaties. In formulating the draft articles it will therefore be necessary to give careful thought, always in the light of practice, to the absolute limitations traditionally recognized with regard to the admissibility of countermeasures (force, human rights, diplomatic envoys) to see whether they need to be supplemented by the prohibition not only of countermeasures taken in contravention of jus cogens rules, but also of measures in breach of the rules setting forth erga omnes obligations.
Francesco Carnelutti su “Gaetano Arangio-Ruiz, Gli enti soggetti dell’ordinamento internazionale, Vol. I, Milano, Giuffrè, 1951, in Rivista di diritto processuale, 1953, Vol. VIII, Parte I.
