Hostname: page-component-78c5997874-j824f Total loading time: 0 Render date: 2024-11-13T11:21:56.076Z Has data issue: false hasContentIssue false
  • English
  • Français

Counterintuiting Countermeasures

Published online by Cambridge University Press:  27 February 2017

David J. Bederman
Get access Rights & Permissions [Opens in a new window]

Extract

The adoption in August 2001 by the International Law Commission (ILC) of its articles on responsibility of states for internationally wrongful acts well and truly brings to a close the twentieth century’s engagement with international law as (in Martti Koskenniemi’s memorable refashioning of George Kennan’s savage critique) a “gentle civilizer of nations.” Including the entry into force of the Rome Statute of the International Criminal Court, the seven pillars of international legal codification have been completed with some form of assistance by the ILC: diplomatic immunities, the law of the sea, a comprehensive law of treaties, the Nuremberg Principles, andjurisdictional immunities of states. Indeed, the articles on state responsibility may represent an even greater methodological challenge for international law codification because they pose fundamental questions regarding the identity and nature of states. Like the Montevideo Convention on Rights and Duties of States and the ILC’s own somewhat obtuse efforts on the international law of state succession, the articles on state responsibility go to the intellectual core of public international law by delimiting the character of states and the nature of their obligations when they interact with other international actors. Perhaps, then, it is no surprise that the ILC’s journey into that doctrinal realm took over half a century, and consumed the attention of five special rapporteurs and countless Commission members.

Type
Symposium: The ILC’s State Responsibility Articles
Information
American Journal of International Law , Volume 96 , Issue 4 , October 2002 , pp. 817 - 832
Copyright
Copyright © American Society of International Law 2002

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilc>, reprinted in Crawford, James, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002)Google Scholar. References to, and quotations of, the articles, as well as the official ILC commentaries to the articles, which appear in the Commission’s Fifty-third Report and Crawford’s volume, supra, will be identified below by article and paragraph number. Crawford’s comments in his individual capacity, set forth in the introduction to his compendium, will be specially noted as “Crawford Comments.” For more on the ILC’s progress in considering the articles, see Crawford, James, Bodeau, Pierre, & Peel, Jacqueline, The ILC’s Draft Articles on State Responsibility: Toward Completion of a Second Reading, 94 AJIL 660 (2000)Google Scholar.

2 Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960, at v (2002)Google Scholar (quoting George Kennan, American Diplomacy 54 (expanded ed. 1984) (“[W]e would confine these concepts [of international law and morality] to the unobtrusive, almost feminine, function of the gentle civilizer of national self-interest. . .”)).

3 Rome Statute of the International Criminal Court July 17,1998, UN Doc. A/CONF.183/9* (1998), 37 ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN.177.2000.TREATIES-5, available at <http://www.un.org/law/icc> (entered into force July 1, 2002).

4 Convention on Rights and Duties of States, Dec. 26, 1933, 165 LNTS 19.

5 Vienna Convention on Succession of States in Respect of Treaties, Aug. 23,1978,17 ILM 1488 (1978); Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, Apr. 8, 1983, 22 ILM 306 (1983), both available at <http://www.un.org/law/ilc/texts/tresutoc.htm>.

6 Crawford Comments, supra note 1, at 47-49.

7 Id. at 48.

8 See discussion in David, J. Bederman, The Spirit of International Law 187-94 (2002)Google Scholar. For more on the relation between countermeasures and self-help, see Elgab, Omer, The Legality of Non-Forcible Counter-Measures in International Law 4 (1988)Google Scholar; Richard, B. Lillich, Forcible Self-Help by States to Protect Human Rights, 53 Iowa L. Rev. 325, 347-51 (1967)Google Scholar; John, Norton Moore, Enhancing Compliance with International Law: A Neglected Remedy, 39 Va. J. Int’l L. 881 (1999)Google Scholar; Mary, Ellen O’Connell, Enforcing the New International Law of the Environment, 1992 Ger. Y.B. Int’l L. 293, 318 Google Scholar.

9 See Commentary to pt. 3, ch. II, para. 1 (“Countermeasures are a feature of a decentralised system by which injured States may seek to vindicate their rights and to restore the legal relationship with the responsible State which has been ruptured by the internationally wrongful act.”).

10 Arts. 22, 49-54.

11 This emphasis is made clear in the very first paragraph of the official ILC commentaries to the articles:

The emphasis [of the articles] is on the secondary rules of State responsibility: that is to say, the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow there from. The articles do not attempt to define the content of the international obligations breach of which gives rise to responsibility. This is the function of the primary rules, whose codification would involve restating most of substantive international law, customary and conventional.

Commentaries, para. 1. Crawford also considers this distinction in his personal introduction to the articles, see Crawford Comments, supra note 1, at 14-16.

12 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15 (May 28).

13 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331 [hereinafter Vienna Convention]; see also Ian Sinclair, The International Law Commission (2d ed. 2000).

14 Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (Port. v. Ger.),2R.I.A.A. 1011 (1928) [hereinafter Naulilaa Arbitration]; see also Cysene Arbitration (Port. v. Ger.), 2 R.I.A.A. 1035 (1930) (responsibility of Germany for acts committed subsequent to July 31, 1914, and before Portugal entered war).

15 Naulilaa Arbitration, supra note 14, 2 R.I.A.A. at 1028.

16 Air Services Agreement of 27 March 1946 (U.S. v.Fr.), 18 R.I.A.A.417 (1978) [hereinafter Air Services Agreement Award].

17 Id. at 444, para. 83.

18 Id. at 443.

19 Id. at 444 (emphasis added).

20 Id.

21 Id. at 448 (Reuter, arb., dissenting) (“the Tribunal has been unable to assess definitely” the proportionality of the U.S. response); see also Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Counter-Measures (1984); Denis Alland, Justice Prtvée et ordre Juridique International; Etude Théorique des Contre-Mesures en Droit International Public (1994).

22 Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 ICJ Rep. 7 (Sept. 25).

23 Id. at 55, para. 83 (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 127, para. 249 (June 27) [hereinafter Nicaragua Judgment] (“The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts . . . “ ) ; also citing Air Services Agreement Award, supra note 16,18 R.I.A.A. at 443; Draft Articles on State Responsibility Adopted by the International Law Commission on First Reading [hereinafter First Reading Report], Arts. 47-50, in Report of the International Law Commission on the Work of Its Forty-eighth Session, [1996] 2 Y.B. Int’l L. Comm’n, pt. 1, at 1, 68-71, UN Doc. A/CN.4/SER.A/1996/Add.l).

24 1997 ICJ Rep. at 55, para. 85.

25 Id. (citing and quoting Territorial Jurisdiction of the International Commission of the River Oder, 1929 PCIJ (ser. A) No. 23, at 27).

26 Art. 51.

27 Art. 49, para. 1.

28 See Commentaries, Art. 51, para. 6.

29 The negative formulation was also apparently adopted by Roberto Ago in his Third Report on State Responsibility, [1971] 2Y.B.Int’lL.Comm’n, pt. 1, at 69, UN Doc. A/CN.4/SER.A/1971/Add.1 [hereinafter Ago, 1971 Commentary], and was quoted by Judge Stephen Schwebel in his dissent in the Nicaragua Judgment, 1986 ICJ Rep. at 368:

There must of course be some proportion between the wrongful infringement by one State of the right of another State and the infringement by the latter of a right of the former through Reprisals. In the case of conduct adopted for punitive purposes, of specifically retributive action taken against the perpetrator of a particular wrong, it is self-evident that the punitive action and the wrong should be commensurate with each other. But in the case of action taken for the specific purpose of halting and repelling an armed attack, this does not mean that the action should be more or less commensurate with the attack. Its lawfulness cannot be measured except by its capacity for achieving the desired result.

30 Commentaries, Art. 51, para. 5; see also Enzo Cannizzaro, Il Principio della proporzionalitá nell’ordinamento internazionale (2000); Cannizzaro, Enzo, The Rote of Proportionality in the Law of International Countermeasures, 12 Eur. J. Int’l L. 889 (2001)CrossRefGoogle Scholar [hereinafter Cannizzaro, Role].

31 An excellent assemblage of state practice on proportionality can be found in Cannizzaro, Role, supra note 30, at 900-13 (drawing in large measure on statements made by governments in diplomatic correspondence or in submissions before the UN Security Council).

32 See Commentaries, Art. 29, paras. 1-4.

33 See, e.g., Draft Articles on State Responsibility: Comments of the Government of the United States of America 4 (Mar. 1, 2001), excerpted in95 AJIL 626, 627 (2001) [hereinafter U.S. Comments].

34 Indeed, Article 51 is entitled “Proportionality,” perhaps suggesting that the terms are meant to be synonymous.

35 See Ago, 1971 Commentary, supra note 29.

36 See id. This appears to be precisely the point made by Judge Schwebel in his Nicaragua dissent, invoking Ago’s earlier commentary. See note 29 supra.

37 Ago, 1971 Commentary, supra note 29.

38 Commentaries, para. 1.

39 For more on this connection between codification and legal process, one might examine Chayes, Abram, Ehrlich, Thomas, & Andreas, F. Lowenfeld, International Legal Process (1968-69)Google Scholar; Higgins, Rosalyn, Problems and Process: International Law and How We Use It (1994)Google Scholar; Harold, Hongju Koh, Why Do Nations Obey International Law? 106 Yale L.J. 2599 (1997)Google Scholar; Harold, Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996)Google Scholar.

40 Vienna Convention, supra note 13, Arts. 65-68.

41 See, e.g., Tacna-Arica Question (Chile v. Peru), 2 R.I.A.A. 921, 926 (1925).

42 Vienna Convention, supra note 13, Art. 60, para. 3 (defining material breach as an actual “Repudiation of the treaty” or a “violation of a provision essential to the accomplishment of the object or purpose of the treaty”).

43 For U.S. practice, see Unilateral Abrogation or Material Breach, 1978 Digest, ch. 5, §3, at 767.

44 For more on this phenomenon, see Moore, supra note 8; John, K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 Va. L. Rev. 1 (1997)Google Scholar; John, K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L.J. 139 (1996)Google Scholar.

45 Nicaragua Judgment, 1986 ICJ Rep. 14.

46 Needless to say, analogues to the Vienna Convention on the Law of Treaties were significant in the construction of the countermeasures section of the articles on state responsibility. See Commentary to pt. 3, ch. II, para. 4 & n.780; Art. 49, para. 9; Art. 50, para. 8 & n.809.

47 “Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State Countermeasures shall, as far as possible, be taken in such a way as to permit resumption of performance of the obligations in question.” Art. 49, paras. 2, 3.

48 Commentaries, Art. 49, para. 9:

Paragraph 3 of article 49 is inspired by article 72(2) of the Vienna Convention on the Law of Treaties, which provides that when a State suspends a treaty it must not, during the suspension, do anything to preclude the treaty from being brought back into force. By analogy, States should as far as possible choose countermeasures that are reversible.

49 First Reading Report, supra note 23, Art. 53, para. 4.

50 See Air Services Agreement Award, supra note 16, 18 R.I.A.A. at 445 (the tribunal noted that it “does not believe that it is possible, in the present state of international relations, to lay down a rule prohibiting the use of countermeasures during negotiations”); see also Crawford, James, Peel, Jacqueline, & Olleson, Simon, The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, 12 Eur. J. Int’l L. 963, 983 (2001)Google Scholar.

51 Art. 52, para. 1(a), (b).

52 Commentaries, Art. 52, para. 3.

53 Art. 52, para. 2.

54 Commentaries, Art. 52, para. 6.

55 Crawford, Peel, & Olleson, supra note 50, at 983 n.75 (citing Hungary’s and Japan’s comments criticizing the distinction).

56 Art. 52, para. 3 (emphasis added); see also Commentaries, Art. 52, para. 7.

57 Air Services Agreement Award, supra note 16, 18 R.I.A.A. at 445-46.

58 See id. at 446 (“As the object and scope of the power of the tribunal to decide on interim measures of protection may be defined quite narrowly, however, the power of the Parties to initiate or maintain counter-measures, too, may not disappear completely.”).

59 Commentaries, Art. 52, para. 8. Interestingly, this language—which is significant because it excludes political adjustments (as in the UN Security Council) or recourse to domestic courts of one of the disputing parties—does not appear in the actual text of the article, an unfortunate drafting oversight.

60 See Aegean Sea Continental Shelf (Greece v. Turk.) Jurisdiction, 1978 ICJ Rep. 3 (Dec. 19); Aegean Sea Continental Shelf (Greece v. Turk.), Provisional Measures, 1976 ICJ Rep. 3 (Sept. 11); Southern Bluefin Tuna Case (Austl. & NZ v. Japan),Jurisdiction and Admissibility, 39 ILM 1359 (arb. trib. Aug. 4, 2000); Southern Bluefin Tuna Cases (NZ v. Japan; Austl. v. Japan), Provisional Measures, 38 ILM 1624, 1635 (Int’l Trib. Law of Sea Aug. 27,1999).

61 Art. 52, para. 4; see also Commentaries, Art. 52, para. 9 (“Under the circumstances of paragraph 4, the limitations to the taking of countermeasures under paragraph 3 do not apply.”).

62 LaGrand Case (Ger. v. U.S.), Merits, paras. 99-104 (Int’l Ct. Justice June 27, 2001), 40 ILM 1069, 1092-94 (2001), cited in Commentaries, Art. 52, para. 8 & n.835.

63 State Responsibility, Comments and Observations Received from Governments, UN Doc. A/CN.4/488 (1998) [hereinafter Government Comments].

64 See Caron’s contribution to this symposium, David, D. Caron, The ILC Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority, 96 AJIL 857, 867-68 (2002)Google Scholar.

65 See Bederman, supra note 8, at 162-70 (considering the use of formalistic and pragmatic tropes in the Vienna Convention on the Law of Treaties).

66 See Commentary to pt. 3, ch. II, para. 3.

67 Art. 50, para. 1(b), (c).

68 Art. 49, para. 1 (“An injured State may only take countermeasures against a State . . .” (emphasis added)); see also Commentaries, Art. 49, para. 4.

69 See Naulilaa Arbitration, supra note 14, 2 R.I.A.A. at 1026 (countermeasures must be “limited by the requirements of humanity and the rules of good faith applicable in relations between States”); 1934 Annuaire De l’ Institut de Droit International 710.

70 Art. 50, para. 1 (d)..

71 Arts. 40, 41 (governing situations of “gross or systematic failure” of states to follow “peremptory norm[s] of general international law,” entailing such additional consequences as the requirements that other states “cooperate to bring [the breach] to an end through lawful means” and that states shall not “recognize as lawful a situation created by a serious breach . . . nor render aid or assistance in maintaining that situation”).

72 Commentaries, Art. 50, para. 6.

73 See id., Art. 50, para. 7 (discussing General Comment 8 of the UN’s Committee on Economic, Social and Cultural Rights as limiting the effect of economic sanctions on civilian populations, without seeming to differentiate between such sanctions as retorsions and countermeasures).

74 Id., Art. 54, para. 3.

75 Id., Art. 54, para. 6. Ironically, though, the commentaries provide more evidence of state practice on this particular point than they do in relation to any other issue having to do with countermeasures. See id., paras. 3, 4 (citing no fewer than eight incidents).

76 Art. 48, para. 1.

77 See the contribution to this symposium by Edith, Brown Weiss, Invoking State Responsibility in the Twenty-first Century, 96 AJIL 798 (2002)Google Scholar.

78 Crawford, Peel, & Olleson, supra note 50, at 981.

79 Id. at 981-82.

80 See Crawford Comments, supra note 1, at 58-60.

81 See Caron, supra note 64, at 861-66.

82 Id. at 868, 868-73.

83 My admittedly imperfect survey of online databases for international tribunal decisions and awards indicates about twenty-two World Court decisions (opinions, judgments, or orders) that cite the draft articles on state responsibility (twelve, if the iterative opinions in the Legality of the Use of Force cases are combined), about fifteen awards of the Iran Claims Tribunal, about the same for WTO dispute panels, and one case decided in the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. Westlaw search (INT-ICJ, INT-IRAN, INT-ICTY, INT-ICTR, WTO-DEC databases) (performed Aug. 6, 2002).

84 See F. V. García-Amador, Louis B. Sohn, & R. R. Baxter, Recent Codification of The Law of State Responsibility for Injuries to Aliens (1974).

85 Bodansky, Daniel & John, R. Crook, Introduction and Overview, 96 AJIL 773, 790 (2002)Google Scholar.

86 Arts. 57, 58 (“These articles are without prejudice to any question of the responsibility under international law of an international organization, or of any State for the conduct of an international organization.” “These articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”).

87 Commentary to pt. 3, ch. II, para. 1.

88 Id., para. 2.

89 Art. 53.

90 Art. 50, para. 1(b).

91 See U.S. Comments, supra note 33, at 2-3.

92 Crawford Comments, supra note 1, at 50. In light of the fact that the first reading of the draft articles in 1996 referred merely to “basic human rights,” the revised formulation might have even been regarded as an improvement. First Reading Report, supra note 23, Art. 50, para. (d).

93 Commentaries, Art. 50, para. 6 n.803 (citing the International Covenant on Civil and Political Rights, Dec. 16,1966, Art. 4,999 UNTS 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 15, 213 UNTS 221; American Convention on Human Rights, Nov. 22, 1969, Art. 27,1144 UNTS 123).

94 Art. 50, para. 2(b).

95 First Reading Report, supra note 23, Art. 50, para. (b).

96 Crawford Comments, supra note 1, at 50-51.

97 See id.

98 The Robert Heinlein effect is named after the science fiction author who coined the aphorism “an armed society is a polite society.” See James, P. Pinkerton, Nullification: Wrong in 1832 and in 1995, L.A. Times, Oct. 12, 1995, at B9 Google Scholar (quoting Robert Heinlein). For sociological literature on this point, see Roger, D. McGrath, Gunfighters, Highwaymen, and Vigilantes (1984)Google Scholar; Umbeck, John, Might Makes Rights: A Theory of the Foundation and Initial Distribution of Property Rights, 19 Econ. Inquiry 38 (1981)Google Scholar.

99 See Government Comments, supra note 63; U.S. Comments, supra note 33.

100 See Kennan, supra note 2, at 95; see also Hans, J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace 3-17 (Kenneth, W. Thompson ed., 6th ed. 1985)Google Scholar.