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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett (Assistant), Kate (20th May 2010)

Part V The Implementation of International Responsibility, Ch.80 Countermeasures in Response to Grave Violations of Obligations Owed to the International Community

Linos-Alexandre Sicilianos

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett (Assistant)

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 22 January 2019

Subject(s):
Responsibility of states — Wrongful acts — Countermeasures — National liberation movements — Erga omnes obligations

(p. 1137) Chapter 80  Countermeasures in Response to Grave Violations of Obligations Owed to the International Community

The question of countermeasures in response to violations of obligations representing a general interest—also characterized as ‘collective’ countermeasures—number among the most controversial subjects in the field of State responsibility.1 There are essentially two sources of controversy. The first touches upon the view which has been formed of international responsibility. The term ‘collective countermeasures’ is understood as referring to measures which are in themselves unlawful but which could be adopted on an individual level by any State not individually injured, in response to grave violations of erga omnes obligations, or even essential obligations for the protection of a collective interest. The expression ‘obligations representing a general interest’ aims precisely at covering those two categories of obligations. However, to concede to all States the power to react in such a manner is inconsistent with the traditional view of the law of international responsibility, according to which the perpetration of a wrongful act creates only bilateral consequences between the responsible State and the injured State.2 The second source of controversy is closely related to the first: that to treat multiple or even all States as possessing authority to react by means of countermeasures risks impinging upon the powers of the Security Council under Chapter VII of the Charter of the United Nations (Section 1).

(p. 1138) These controversies were reflected in the process of codification of the law of international responsibility. The changes in the attitude of the ILC in relation to collective countermeasures, combined with the critical remarks of a number of States, led to the adoption of a provision—article 54 ARSIWA—which is ambivalent in order not to prejudge the lawfulness of measures taken in response to violations of obligations representing a general interest (Section 2).3

The sources of controversy

The difficulties the ILC encountered can be explained, at least partly, by the large number of States which might potentially respond (subsection (a)). In addition, even if article 59 ARSIWA provides that ‘[t]hese articles are without prejudice to the Charter of the United Nations’, the Commentary does not specify with the desired clarity that collective counter measures assume a subsidiary character in relation to the powers of the Security Council or that if the latter acts in the institutional framework of Chapter VII, the power to adopt such measures on an individual level disappears (subsection (b)). The persistent ambiguities concerning the relation between the institutional and the individual have created a certain bewilderment on the part of governments.

(a)  The large number of States with the power to react

Without returning in extenso to earlier developments relating to the multilateralization of the relations of responsibility,4 it is important briefly to recall the contents of article 48 ARSIWA, as the provision on collective countermeasures expressly refers to it. In accordance with paragraph 1 of article 48:

[a]ny State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if:

(a)  the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or

(b)  the obligation breached is owed to the international community as a whole.

The phrase ‘any State other than an injured State’ calls for a preliminary observation. Distinguishing between the ‘injured State’ and ‘States other than the injured State’ tends to reflect the idea that the perpetration of a wrongful act, even if it can affect a majority of States, does not necessarily affect all States in the same way. The wrongful act can affect the interests of other States to see international obligations complied with. This is not to say, however, that this warrants their characterization as an ‘injured State’.

While fully subscribing to the ratio of the distinction proposed by the ILC, it seems that the terminology used is problematic. Referring to ‘States other than the injured State’ could make one think that the ‘other’ States are third parties in respect of the wrongful act. However, it is one of two situations: either a State is not at all affected by a wrongful act, in which case it should be qualified as a ‘third party’ and it cannot invoke the responsibility of the responsible State; or the State is affected—even if only indirectly—by the wrongful act, in which case it should not be treated as if it were a third party. It seems, therefore, that instead of speaking of ‘injured States’ and of ‘States other than the injured State’, (p. 1139) we should distinguish between States ‘directly’ or ‘individually’ injured by the breach, and States ‘indirectly’ or ‘not individually’ affected, the latter not being true third parties in respect of the wrongful act.

Concerning the substance of article 48, it can be remarked that it refers to two categories of obligations: obligations erga omnes partes and obligations erga omnes. The obligations belonging to the first category would be ‘collective obligations’, that is, obligations emanating from a treaty or other source of international law which bind a group of States and which are created in the common interest, transcending ‘the sphere of bilateral relations’ between State parties. These may concern the environment, the security of a region (including disarmament), human rights, or more generally the protection of a group or a people.5

Those rather heterogeneous examples raise the question whether the notion of ‘collective obligations’ is not as homogeneous as one might imagine. The obligations which result from a disarmament treaty, for example, are ‘integral’ or interdependent obligations, which certainly transcend the sphere of bilateral relations between the parties, but which are dominated by a kind of global reciprocity in the sense that each State disarms because others do the same. It follows that a substantial breach of such a treaty may ‘radically change’ the situation of all other States as to the subsequent execution of their own disarmament obligations.6 It is a different situation in respect of obligations relating to the protection of the environment or human rights. These tend to promote extra-State interests; they do not have a bilateral character; and they do not operate on the basis of reciprocity. A violation of human rights by State A, however grave it is, does not modify the situation of other States as to the observation of their own obligations.

It can be remarked, in addition, that obligations due to a group of States party to a certain judicial regime—such as, a regional convention for the protection of human rights—may overlap with certain obligations erga omnes insofar as the regional instrument incorporates a general international law obligation owed to the international community as a whole. In other words, the distinction between obligations erga omnes partes and obligations erga omnes may be blurred in reality: the same obligations may be put in both categories at the same time.

Particularly in respect of the invocation of responsibility in the case of a breach of an erga omnes obligation, it can be observed that article 48 does not mention the gravity of the breach. This appears only in articles 40 and 41, which concern the particular consequences of breaches of obligations deriving from peremptory norms of general international law. It follows that a grammatical interpretation of article 48 leads one to consider that any State could invoke any breach of an erga omnes obligation with all the attendant consequences, including the adoption of ‘lawful measures’ against the responsible State.7 However, this is a striking novelty which does not correspond to State practice and nor does it, it appears, to the intention of the ILC and its last Special Rapporteur. The entire debate on the universalization of relations of responsibility as well as the relevant State practice concerns ‘flagrant’ or ‘systematic’ (according to the terms of article 40(2)) violations of peremptory norms or erga omnes obligations, and not minor violations of those obligations.8 It seems that no one (p. 1140) has suggested that a minor breach of an erga omnes obligation justifies the taking of countermeasures by every State in the international community. One may recall that, according to the draft adopted on first reading, only ‘international crimes’ entailed the universalization of relations of responsibility.9 The element of gravity of the violation is inherent in the notion of a ‘crime’.

In short, article 48 as finally adopted by the ILC uses vague expressions—such as the notion of States ‘other than the injured State’—while enlarging the circle of States authorized to invoke the responsibility of the responsible State and without setting sufficiently clear conditions including a requirement of a certain threshold of gravity of the breach. These considerations partly explain, it seems, the reluctance of certain governments in respect of article 48 and on the relation of that provision with article 54.10 It is significant to note that at the Sixth Committee of the General Assembly it was suggested that the ‘vague and imprecise’ definition of countermeasures by the State ‘other than the injured State’ introduced elements similar to ‘collective sanctions’ in State responsibility.11 That observation leads one to question the link between sanctions adopted in an institutional framework and countermeasures taken at the inter-State level.

(b)  The imprecise links between the institutional and the individual

It cannot be doubted that the major concern relating to the power of States to adopt counter measures in response to grave breaches of erga omnes obligations is linked to the risk of entanglement of this power with the powers of the Security Council under Chapter VII of the UN Charter.

From a conceptual point of view, decentralized countermeasures distinguish themselves clearly from institutional sanctions, if only because they create ‘horizontal’ links between the State responsible for the wrongful act and the States who respond, whereas institutional sanctions create ‘vertical’ relations between the member State which threatens the peace and the institution which enacts the sanction. Similar considerations apply mutatis mutandis when the reaction emanates from a regional or sub-regional organization and is aimed at a non-member State. In the absence of any hierarchy between the regional organization and third States, the reaction of the former takes place on a horizontal level. It is precisely to avoid confusion between the categories that the ILC decided in 1979 to reserve the term ‘sanction’ for measures taken in an institutional framework and to characterize decentralized responses as ‘countermeasures’, a distinction which was faithfully followed since then.12

During the Cold War the risk of entanglement of countermeasures and sanctions was minimal for the simple reason that the Security Council was often frozen. The only example is that of South Africa when, at the beginning of 1986, the member States of the EEC, the United States, New Zealand, Australia, and Canada decided to adopt countermeasures which went beyond the sanctions previously recommended by UN organs. That coexistence of the institutional and individual did not pose problems in the event, as the General Assembly and the Security Council had called for those initiatives and then commended that (p. 1141) these had been taken by certain States on their own initiative.13 Since the Security Council was mostly unable to act in the period 1946–1989, it is arguable that collective countermeasures in response to flagrant violations of erga omnes obligations were necessary.

Since 1990 the situation has changed. The Security Council increasingly occupies with sanctions, to such an extent that the last decade has been called the ‘sanctions decade’.14 Through an expansive interpretation of the notion of ‘threat to the peace’ in article 39 of the Charter, the Security Council has frequently responded to situations resulting from grave breaches of obligations deriving from peremptory norms or erga omnes obligations. It is true that in certain cases the drafting of resolutions imposing sanctions is either not very clear—often because it conceals differences in the Security Council—or it contains general notions which need to be made concrete when put into effect. In other cases, Security Council resolutions deliberately leave a margin of appreciation to States as to the measures to be taken in application of the UN sanctions. However, it must be asked whether, beyond that margin, States can allocate to themselves the power to auto-interpret Security Council resolutions in order to take significant liberties regarding the content of the measures to be taken in execution of the sanctions.

The practice of the EC/EU during the 1990s provides numerous examples of implementation of UN sanctions. It can be noted that since 1992, the Community has considered all measures ‘in conformity with or in application of or in relation to’ pertinent decisions of the Security Council ‘or any action … authorised’ by it as ‘measures taken pursuant to Security Council resolutions’.15 This ‘catch all’ formula has led to the adoption of measures having no more than a remote connection or no connection at all with UN sanctions, and measures which have even contradicted UN objectives.16 Certainly, the grounds for Security Council resolutions were recalled to demonstrate that the measures adopted were situated ‘in the slipstream’ of sanctions enacted by the UN. However, this has not concealed the fact that some sanctions have moved from the institutional regime to individual measures.

Beyond concrete examples, it is important to emphasize that the recognition of a large power of auto-interpretation on the part of States of mandatory decisions of the Security Council enacting sanctions under Chapter VII does not find any support in the UN Charter and would risk distortion of Chapter VII. It can be seen that in its recent practice the Council usually tries to adopt so-called ‘intelligent’ sanctions, that is to say measures targeted at political elites or at the ‘trouble-makers’, and not comprehensive sanctions which would affect, sometimes very heavily, the innocent civilian population. The adoption of targeted sanctions implies an attentive study of the situation prevailing in the targeted country and of the concrete impact of the measures taken. To concede, in those circumstances, that States may react as they please in adopting at an individual level measures other than those specifically enacted by the Security Council risks disturbing the often delicate balance of the ‘intelligent’ sanctions and undermining their effectiveness. It is necessary to recall that (p. 1142) the imposition of sanctions is generally the outcome of intense negotiations in the Council and that, consequently, unilateral adoption of measures different than those decided by the Council itself distorts the institutional balance envisioned by the Charter.

Those considerations lead to two preliminary conclusions which are, in effect, two sides of the same coin. First, the problem of ‘collective’ countermeasures presents itself in the case of a failure of the Security Council, which manifests itself either because the Council does not judge itself competent to deal with a situation concerning a grave breach of an relevant rule of international law or because it cannot enact sanctions because of the use of the veto, or because it is slow to do so. Second, beginning from the moment when the Council occupies itself with the adoption of mandatory sanctions, member States transform into agents for the execution of these sanctions, their duty being to implement them in good faith without undermining their effective application. For States not individually injured, this implies an obligation to suspend countermeasures already adopted at the individual level, if they are different or incompatible with the measures decided on the by Security Council, or in any case, to modify them in order to harmonize them with the UN sanctions. A fortiori, the States in question should not adopt ‘collective’ countermeasures after the pronunciation of mandatory sanctions, but only measures which are necessary and sufficient for the execution of those mandatory sanctions. In short, unless the Security Council invites States to go further than its own measures—a rare event in practice—the triggering of Chapter VII ends the power of States not individually injured to react as they please at the individual level. This view is consistent with the spirit of the Charter as a ‘constitutional’ instrument of the international community, and it is also consistent with article 59, which stipulates that the articles are ‘without prejudice’ to the Charter. However, the Commentary to article 59 is not explicit on the point, allowing ambiguities as to the link between the institutional and the individual to linger.17

The ambiguity of the retained solution

During the process of codification, the question of ‘collective’ countermeasures went through three phases. The relevant provisions of the articles adopted on first reading, without ruling out collective countermeasures, were rather ambivalent. In contrast, the text in the 2000 Report of the ILC dedicated an article to the subject which explicitly allowed the adoption of those measures. Amended in 2001, article 54 ARSIWA again became ambiguous.

(a)  The changes in the ILC’s attitude

(i)  The ambiguities of the version adopted on first reading

Article 40(3) of the 1996 Draft Articles adopted on first reading stipulated that if the internationally wrongful act constituted an international crime, the phrase ‘injured State’ referred to ‘all other States’. The Special Rapporteur at the time, Arangio-Ruiz, suggested that that provision extended ‘the option to resort to countermeasures … to all States’.18 However, in order to avoid an avalanche of countermeasures founded on the subjective assessments of States as to the perpetration of a crime, the Special Rapporteur proposed a procedure for an objective determination of the existence and the attribution of such an (p. 1143) act qualified as wrongful. That procedure combined ‘the political element with the judicial element’ by involving first, the adoption of a resolution by a qualified majority of the General Assembly or the Security Council and second, a ‘judgment’ by the International Court ‘that an international crime has been or is being committed’.19

Cumbersome and complex as the procedure was, the Special Rapporteur’s suggestion could not have been implemented. Consequently, the ILC was divided, with certain members in favour of the adoption of collective countermeasures, while others saw it as a risk of entanglement of Security Council powers with the individual reactions of States.20 The existence of such contrasting views translated into ambivalence in other provisions in the articles as adopted on first reading.

It can be noted that draft articles 51 to 53, concerning the specific consequences of international crimes, did not explicitly touch upon the question of collective countermeasures. Draft article 51 provided that ‘[a]n international crime entails all the legal consequences of any other internationally wrongful act and, in addition, such further consequences as are set out in articles 52 and 53’.21 One may deduce from this that as countermeasures constituted a judicial consequence of an ‘offence’, draft article 51 recognized a fortiori the power of every State ‘injured’ by a crime to resort to countermeasures. The commentary to article 51, however, carefully avoided referring to countermeasures.22 Similar observations apply mutatis mutandis to draft article 53, which provided that ‘[a]n international crime committed by a State entails an obligation for every other State: … (d) to cooperate with other States in the application of measures designed to eliminate the consequences of the crime’.23 The very short commentary to that provision referred to the cooperation of States in the implementation of sanctions adopted by the Security Council. It added: ‘[b]ut apart from any collective response of States through the organized international community, the Commission believes that a certain minimum response to a crime is called for on the part of all States’.24 What form of ‘minimum response’ was referred to? One could think of protests, diplomatic pressure, retorsions, but also countermeasures. It should still be recalled that countermeasures are seen as legal powers and not as obligations. However, article 53 enunciated obligations for States and not powers. In short, the set of relevant provisions of the Articles adopted on first reading contained references which could, eventually, be interpreted as permitting the adoption of countermeasures by States not individually affected by a ‘crime’, while remaining evasive and, in the final analysis, inconclusive on the point.

(ii)  The clarity of the text in the 2000 Report

When re-examining the project of the Articles and under the impetus of a new Special Rapporteur, the ILC clarified its position on collective countermeasures for the first time. The Special Rapporteur proposed an interesting system distinguishing between two situations: one where a State is a victim of a breach of an erga omnes partes obligation or an erga omnes obligation; and one where no State is directly affected by a grave breach of an obligation owed to the international community as a whole.25 That distinction featured in the text in the 2000 Report of the ILC.26

(p. 1144) In the first case, States not directly affected could take countermeasures ‘at the request and on behalf of any State injured by the breach, to the extent that that State may itself take countermeasures under this chapter’.27 Offering obvious analogies with lawful collective self-defence, this wording made clear the distinction between the position of a State directly injured by the breach and States not individually affected. The latter could not be ‘more Catholic than the Pope’. They benefitted from an authority to resort to countermeasures subordinate to the demands of the victim State, and more generally, to the conditions governing who may validly respond to the wrongful act. Moreover, countermeasures by States not individually affected would be taken in the interest of the victim State. In other words, the States in question would not ask, for example, for compensation on their own behalf.

The second situation was aimed at flagrant or systematic violations of the right to selfdetermination or human rights. In the case where there is no directly injured State, States not individually affected act ‘in the interest of the beneficiaries of the obligation breached’, while first and foremost demanding the cessation of the breach, but also guarantees and assurances of non-repetition, and even compensation for victims.

In both situations, the concerned States should cooperate in order to assure themselves that the conditions for resorting to countermeasures would be fulfilled.28 This was to ensure respect for the principle of proportionality, a subject of particular concerns in the field of collective countermeasures.

On the whole, draft article 54 of the 2000 version of the Articles reflected a well-balanced solution which would have deserved support, even if it had to be clearly explained that collective countermeasures assumed a subsidiary character in relation to the powers of the Security Council. The fact of not having been very explicit on this point led certain ILC members to ask precisely ‘how much the question concerned the responsibility of States, as opposed to the maintenance of international peace and security’ and to argue that in absence of a clear demarcation between the individual and the institutional, ‘support for collective countermeasures was only possible in the context of the action of competent international organizations’.29 Similar questions were asked in the Sixth Committee of the General Assembly, which led finally to the ILC retreating and proposing a provision as ambiguous as that adopted on first reading.30

(b)  Article 54: ‘everything goes’

(i)  A compromise provision

Article 54 ARSIWA, adopted in 2001, entitled ‘measures taken by States other than an injured State’, is of an ambiguity worthy of the oracle at Delphi. Placed at the end of Part Three, Chapter II on countermeasures, article 54 stipulates that:

[t]his chapter does not prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.

(p. 1145) The ambiguity lies both in the title—which speaks of ‘measures’ and not of ‘countermeasures’— and in the text, which refers to ‘lawful measures’. Those terms were employed ‘so as not to prejudice any position concerning measures taken by States other than the injured State in response to breaches of obligations for the protection of the collective interest or those owed to the international community as a whole.’31 In short, this is a formula which leaves all options open.

In fact, the term ‘lawful measures’ can be interpreted in two ways, according to the position one adopts on the question of ‘collective’ countermeasures. Those that are against collective countermeasures will presumably argue that ‘lawful measures’ should be understood as measures lawful per se, that is to say, retorsion. Those who adopt the opposite view will recall that retorsion was explicitly excluded from the scope of application of ARSIWA;32 that expressly permitting retorsion does not make sense given that that retorsion is in any case permitted; and that countermeasures are also ‘lawful measures’ considering that their unlawfulness is excluded in the light of article 22—and customary law—to the extent that they are taken in conformity with the relevant procedural and substantive conditions which are mostly codified in articles 49 to 53.33 In addition, placing article 54 in the scope of a chapter on countermeasures suggests that the provision in question aims at a particular form of those measures rather than mere retorsion measures.

The second interpretation, which seems correct, conforms to the spirit and the other provisions of ARSIWA. However, the ambiguities of article 54 are certainly intended and tend to respond to some critical observations made by governments.34 From a point of view of ‘legal policy’ one can certainly understand the approach of the ILC, which was concerned with securing a favourable reception for the Articles in the Sixth Committee of the General Assembly, an objective that was mostly achieved. However, like every compromise formula, article 54 perpetuates the debate on ‘collective’ countermeasures without being able to satisfy everyone.35

(ii)  A justified solution?

Beyond ‘political’ reasons, which are at the base of the solution retained by the ILC, it is similarly important to ask whether article 54 reflects the current state of general international law. According to the Commission, the practice on countermeasures taken in the general or collective interest is ‘limited and rather embryonic’.36 Quantatively it is ‘sparse’ and it mostly emanates from a limited number of States, that is to say Western States, which leaves ‘uncertainty’ on the matter.37 Hence a specific provision in a form of ‘saving clause’ was adopted, which leaves ‘the resolution of the matter to the further development of international law’.38

In addition to the fact that the overview of practice drawn up by the Special Rapporteur Crawford a year before was appreciably more positive, the overall assessment of the ILC (p. 1146) leaves one puzzled.39 Concerning the quantitative aspect and the duration of the practice, it can be remarked that the Commission, without purporting to be exhaustive, cited numerous examples, the first dating as far back as 1978, when the United States adopted countermeasures against Uganda because of the ‘genocide’ committed by the government of that country against its own citizens.40 The ILC similarly recalled that after the imposition of martial law by the Polish government on 13 December 1981 and the massive human rights violations which followed, the United States and other Western countries adopted a series of measures against Poland and the Soviet Union, of which certain constituted countermeasures. One year later, in 1982, Argentina’s military intervention on the Falkland Islands (Malvinas) provoked countermeasures from the members of the European Community, Australia, New Zealand, and Canada. The ILC also referred to the aforementioned example of the adoption of countermeasures against South Africa in 1986.41

To complete the overview of western State practice between 1970 and 1989, one can add the responses against the Soviet Union after its invasion of Afghanistan; the countermeasures of the Member States of the EEC—with which Japan, Canada, and Australia sympathized—at the time of the hostage taking of US diplomatic and consular staff in Tehran; and finally the aerial boycott of the Soviet Union following the destruction on 1 September 1983 of a Boeing 747 of Korean Air Lines by a Soviet military aircraft.42

During the 1990s, collective countermeasures taken on the individual level became more rare, a development that can easily be explained if one takes the ‘overheating’ of Chapter VII of the Charter into account and the abundance of institutional sanctions enacted by the Security Council during that period. However, the ILC observes that immediately after Iraq’s invasion of Kuwait on 2 August 1990, the United States and the member States of the European Community proceeded to implement commercial embargos and decided to freeze Iraqi assets, actions taken with the consent of the government of Kuwait, before the adoption of sanctions by the Security Council.43 In addition it can be remarked—subject to the preceding observations concerning the entanglement of the institutional and the individual—that from 1991 and during the different phases of the Yugoslav confl ict, the Member States of the European Community adopted measures which certainly went beyond the limits of the UN sanctions.44 Also, in response to the grave violations of human rights and humanitarian law in East Timor, the Council of the European Union adopted a common position on the imposition of a series of restrictive measures against the Republic of Indonesia, including an arms embargo covering contracts already in force with the targeted State, as well as the suspension of bilateral military cooperation between it and the Member States.45

(p. 1147) It thus appears that, far from ‘embryonic’, the practice of western States on the subject of collective countermeasures is rather dense and consistent, and that it spans almost three decades. The group of States in question has responded to a large range of grave breaches of obligations deriving from peremptory norms of international law or erga omnes obligations, and particularly to the use of force, acts of aggression, acts of genocide, racial discrimination, and other massive violations of human rights and to flagrant violations of norms which form the core of diplomatic law and which have an ‘imperative character’.46

If the practice of western States is the most resounding, that of eastern European States and non-aligned States is also significant. It is true that eastern European States have not unilaterally used an ‘economic weapon’ against States responsible for wrongful acts considered grave and that non-aligned States have only used them quite exceptionally and subsidiary to other action. Hence there is a widespread tendency to pass silently by the practice of those groups of States when analysing the regime of grave breaches of erga omnes obligations, thinking only in terms countermeasures of a purely economic character. It is also true that the responses of different constituents of the international community often manifest themselves in a different political context. Without wanting to extrapolate, it can be said that, generally speaking, western States appear to be particularly concerned with grave human rights violations, whereas former Socialist States and non-aligned States essentially worry about the ‘remnants of colonialism’ and racism. If it is evident that those concerns were converging largely because racism, colonial oppression, and violations of human rights go hand in hand, the uncertainties of language merely illustrate too many of the ideological differences of the Cold War period, some of which still persist.

However, beyond particular forms that responses of different groups of States assume and beyond the political framework in which these are taken, a common denominator emerges as to the question of legitimate subjects to react to determined violations of international law. It is clear that, notwithstanding the principle of non-intervention, the former Socialist States have on numerous occasions actively supported national liberation movements, notably in Africa but also in other continents, including logistic and military support. Expressed numerous times, the belief that every State is authorized to respond to colonial or racist regimes was solidly rooted in the conception of international relations of that group of States. The same idea has long dominated the foreign politics of non-aligned States.47 In addition, it can be noted that, under pressure of former Socialist, Asian, and African States the General Assembly declared in Resolution 2625 (XXV) that peoples which act against and resist measures of oppression in the exercise of their right to self-determination ‘are entitled to seek and to receive support in accordance with the purposes and principles of the Charter’.48 The Security Council, for its part, has gone beyond verbal condemnations of apartheid by explicitly commending, at the beginning of 1985, the steadfast support which the neighbouring States of South Africa gave to the people of (p. 1148) Namibia.49 In other words, the political organs of the UN have been led to endorse, in substance, ‘collective’ countermeasures adopted by those States against South Africa in the form of assistance to national liberation movements.

It thus appears that, far from being limited to western States, the practice of countermeasures adopted by States not individually injured by grave breaches of erga omnes obligations can be seen across all constituents of the international community, at least if different forms of those measures are taken into account. It therefore appears that the ILC could have proceeded with the codification of ‘collective’ countermeasures following, in substance, the proposal made in the 2000 Report of the Special Rapporteur. The acceptance of that wording could have been made easier if the conditions for the form of responding were more strictly delimitated; if it had been explicitly made clear that the power to resort to those measures on an individual level was subsidiary to the powers of the Security Council; and if a more complete overview of the practice of different groups of States on the subject had been given.

Further reading

  • M Akehurst, ‘Reprisals by Third States’ (1970) 44 BYIL 1
  • D Alland, ‘Countermeasures of General Interest’ (2002) 13 EJIL 1221
  • D Alland, Justice privée et ordre juridique international. Étude théorique des contre-mesures en droit international public (Paris, Pedone, 1994)
  • JI Charney, ‘Third State Remedies in International Law’ (1988) 10 Michigan Journal of International Law 57
  • A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto internazionale (Milan, Giuffrè, 1985)
  • J Delbrück, ‘International Economic Sanctions and Third States’ (1992) 30 Archiv des Völkerrechts 86
  • P-M Dupuy, ‘Observations sur la pratique récente des ‘sanctions’ à l’illicite’ (1983) 87 RGDIP 505
  • JA Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’ (1994-IV) 248 Recueil des cours 345
  • DN Hutchinson, ‘Solidarity and Breaches of Multilateral Treaties’ (1988) 59 BYIL 151
  • J Petman, ‘Resort to Economic Sanctions by not Directly Affected States’, in L Picchio & L-A Sicilianos (eds), Les sanctions économiques en droit international (Leiden, Martinus Nijhoff, 2004), 309
  • L-A Sicilianos, ‘La codification des contre-mesures par la Commission du droit international’ (2005) 38 RBDI 447
  • L-A Sicilianos, ‘Sanctions institutionnelles et contre-mesures: tendances récentes’, in L Picchio & L-A Sicilianos (eds), Les sanctions économiques en droit international (Leiden, Martinus Nijhoff, 2004), 3
  • L-A Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ (2002) 13 EJIL 1127
  • L-A Sicilianos, Les réactions décentralisées à l’illicite: des contre-mesures à la légitime défense (Paris, LGDJ, 1990)
  • B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994-IV) 250 Recueil des cours 217

Footnotes:

See J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 386.

See D Anzilotti, Cours de droit international (trans G Gidel, Paris, Sirey, 1929), 467.

Art 54 ARSIWA and Commentary thereto.

See G Gaja, Chapter 64.

Commentary to art 48, para 7.

See art 60(2)(c) of the Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331 and art 42(b)(ii) ARSIWA.

See art 54 ARSIWA, which refers to art 48.

See L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime Défense (Paris, LGDJ, 1990), 137–177.

See draft art 40(3) as adopted on first reading in 1996, Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58.

10  See ‘Summary of the Debate in the Sixth Committee of the General Assembly at its 55th Session’, A/CN.4/513, paras 138, 174.

11  Ibid, para 175.

12  Report of the ILC, 31st Session, ILC Yearbook 1979, Vol II(2), 128.

13  See L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime Défense (Paris, LGDJ, 1990), 164.

14  D Cortright & GA Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder/London, Lynne Rienner Publishers, 2000).

15  Reg 3541/92, OJ L 361/1, arts 2, 3; Reg 3275/93, OJ L 295/4, arts 1, 3.

16  See the criticism of N Angelet, ‘La mise en oeuvre des mesures coercitives économiques des Nations Unies dans la Communauté européenne’ (1993) RBDI 500, 502, 511; S Karagiannis, ‘Sanctions internationales et droit communautaire: A propos du règlement 1901/98 sur l’interdiction de vol des transporteurs yougoslaves’ (1999) RTD eur 363, 376.

17  Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58, 393.

18  G Arangio-Ruiz, Seventh Report on State Responsibility, ILC Yearbook 1995, Vol II(1), 3, 11 (para 35).

19  Ibid, 30 (draft art 19).

20  Report of the ILC, 48th Session, ILC Yearbook 1995, Vol II(2), 52.

21  Report of the ILC, 48th Session, ILC Yearbook 1996, Vol II(2), 58, 164.

22  Ibid, 165–167.

23  Ibid, 169.

24  Ibid, 170.

25  See draft arts 50A and 50B in J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, para 413.

26  Cf also draft art 54: Report of the ILC, 52th Session, ILC Yearbook 2000, Vol II(2), 70–71.

27  Ibid, para 2.

28  Ibid, para 3.

29  Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 60 (para 366).

30  ‘Summary of the Debate in the Sixth Committee of the General Assembly at its 55th Session’, A/CN.4/513, para 176.

31  Report of the ILC, 53rd Session, ILC Yearbook 2001, Vol II(2), 139.

32  See the Commentary to Part Three, Chapter II, para 3.

33  See Y Iwasawa & N Iwatsuki, Chapter 81; R O'Keefe, Chapter 82; and M Kamto, Chapter 83.

34  See the Commentary to art 54, para 7; J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, paras 59–60.

35  One thus notes, for example, the strong criticism of the final version of art 54 expressed by the representative of Finland in the Sixth Committee of the General Assembly, M Koskenniemi, on behalf of the Nordic countries (A/C.6/56/SR.11).

36  Commentary to art 54, para 3.

37  Ibid, para 6.

38  Ibid.

39  J Crawford, Third Report on State Responsibility, 2000, A/CN.4/507, paras 395 and 401.

40  Commentary to art 54, para 3.

41  Ibid, paras 3–4.

42  See P-M Dupuy, ‘Observations sur la pratique récente des “sanctions” à l’illicite’ (1983) 87 RGDIP 505; A de Guttry, Le rappresaglie non comportanti la coercizione militare nel diritto internazionale (Milan, Giuffrè, 1985), 106, 136; L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime Défense (Paris, LGDJ, 1990), 157, 164; and the comprehensive review by M Davidowicz, ‘Public Law Enforcement Without Public Law Safeguards? An Analysis of State Practice on Third-party Countermeasures and Their Relationship to the UN Security Council’ (2006) 77 BYIL 333.

43  Commentary to art 54, para 3.

44  M Vaucher, ‘L’évolution récente de la pratique des sanctions communautaires à l’encontre des Etats tiers’ (1993) 29 RTD eur 38, 45; D Wibaux, ‘A propos de quelques questions juridiques posées par l’interdiction des vols des compagnies yougoslaves’ (1998) 44 AFDI 262.

45  Common Position 1999/624/CFSP, 16 September 1999, OJL 245, 17 September 1999, 53.

46  See United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 3, 41 (para 88).

47  See C Alibert, Du droit de se faire justice dans la société internationale depuis 1945 (Paris, LGDJ, 1983), 238; G Carella, La responsabilità dello Stato per crimini internazionali (Naples, Jovene, 1985), 192; L-A Sicilianos, Les Réactions Décentralisées à l’Illicite: Des Contre-mesures à la Légitime Défense (Paris, LGDJ, 1990), 167.

48  GA Res 2625 (XXV), 24 October 1970. See also GA Res 3314 (XXIX), 14 December 1974 on the Definition of Aggression, art 7.

49  See, amongst others, SC Res 577, 6 December 1985, para 5.