(a)  General Principles of Cessation and Reparation

23  Certain consequences flow as a matter of law from the commission of an internationally wrongful act without the need for an intermediate claim or act on the part of the injured State or entity. These consequences fall into two categories: the obligation of cessation and non-repetition and the obligation to make reparation. Although cessation and non-repetition have been neglected in the literature, many responsibility claims are more concerned with continued performance than with reparation. In principle a State which is under a specific obligation does not have an option to pay damages in lieu of performance. Indeed in the most successful scheme for implementing State responsibility yet devised—the World Trade Organization (WTO) dispute settlement system—compensation has an entirely subsidiary and marginal role and the core remedy is cessation of the breach (World Trade Organization, Dispute Settlement). Yet in controverted situations continued performance may be very difficult to achieve, as in the Rainbow Warrior affair, where New Zealand disclaimed compensation but got it anyway, namely in the form of a recommendation from the arbitration tribunal that the parties ‘set up a fund to promote close and friendly relations between the citizens of the two countries, and that the Government of the French Republic make an initial contribution equivalent to $US2 million to that fund’ (Case concerning the Difference between New Zealand and France concerning the Interpretation or Application of Two Agreements, Concluded on 9 July 1986 between the Two States and which Related to the Problems Arising from the Rainbow Warrior Affair 275; see also Rainbow Warrior, The). How to strike a balance between the affirmation of principle and the retention of sufficient flexibility to allow closure of disputes is a recurring issue.

24  Despite this, the basic principles in Part Two Chapter I 2001 ILC Articles on first reading were largely uncontroversial. The responsible State is under a duty to continue to perform the obligation breached (Art. 29) and to cease the wrongful act (Art. 30). That State is also under an obligation to make full reparation for the injury, whether material or moral, caused by its wrongful conduct (Art. 31). Consistently with Art. 3, it may not plead its internal law as an excuse for failure to comply with these obligations (Art. 32).

25  Two controversies did however arise. One concerned the concept of assurances and guarantees of non-repetition. On first reading, they were included amongst the forms of reparation but on second reading the ILC took the view that they should be considered an aspect of cessation rather than reparation. Like cessation—but unlike reparation—assurances and guarantees can only be demanded if the obligation breached is still in force. The issue confronted the ICJ in the LaGrand Case (Germany v United States of America) (‘LaGrand Case’), which concerned a failure of consular notification contrary to Art. 36 Vienna Convention on Consular Relations (1963) (‘VCCR’). The United States of America (‘US’) accepted there had been a breach, apologized, and took significant steps to ensure that the breach would not recur. Germany nevertheless sought both general and specific assurances and guarantees as to the means of future compliance with the VCCR. The court held that it had jurisdiction with respect to Germany’s submission (LaGrand Case [Judgment] para. 48), applying the principle established in the Chorzów Factory Case. It held that the offered apology was insufficient in the circumstances but also held that the US had done enough to meet Germany’s request for a general assurance of non-repetition (ibid paras 124, 128). As to the specific assurances sought by Germany, the ICJ said that in the event of a future failure of notification

26  Different views can be taken as to the ICJ’s approach to assurances and guarantees, which was reserved if not unenthusiastic. No doubt judicial bodies should not issue orders in the form of platitudes, and they may be understandably reluctant to require assurances of compliance with obligations by which the respondent State is in any event bound. On the other hand assurances and guarantees are frequently sought in State practice, especially in the context of treatment of individuals. For these reasons the ILC decided to retain the text provisionally adopted in 2000 on the ground that it is drafted with flexibility and reflects a useful policy. The words ‘if the circumstances so require’ in Art. 30 (b) 2001 ILC Articles indicate that assurances and guarantees are not a necessary part of the legal consequences of an internationally wrongful act. They are likely to be appropriate only where there is a real risk of repetition causing injury to a requesting State or others on whose behalf it is acting. In such cases assurances and guarantees may be a valuable part of the restoration of the legal relationship affected by the breach.

27  A second controversy concerned the definition of ‘damage’ for the purposes of reparation. The draft articles adopted on first reading did not contain a comprehensive definition of ‘damage’. There was a case for leaving the term undefined as it would be wrong to presume that any definition of ‘injury’ or ‘damage’ applies generally in international law without regard to context and the object and purpose of the primary obligation. However, there was a demand in the ILC for some definition, especially of such unclear terms as moral damage. One proposal would have defined injury as consisting of any damage, whether material or moral, arising in consequence of the internationally wrongful act of a State. But this was problematic, first in defining injury as consisting of damage (although in some cases damage may be the gist of the injury, in others it may not be; in still others there may be loss without any legal wrong); second, in that the notion of moral damage is differently conceived in different legal systems. In some systems it covers emotional damage or other non-material loss; in some it may extend to various forms of legal injury, eg to reputation or the affront suffered by the fact of a mere breach. In the event the ILC concluded that the different uses of the notions of injury and damage in different legal traditions required an inclusive approach to the term injury. Art. 31 (2) 2001 ILC Articles therefore reads: ‘Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State’ (emphasis added).

(b)  The Forms of Reparation

28  Part Two Chapter II 2001 ILC Articles elaborates the forms which reparation by the responsible State may take: restitution, compensation, and satisfaction (Art. 34). In principle, restitution is maintained as the primary form of reparation, subject to limited exceptions. If restitution is materially impossible or would involve a burden out of all proportion to the benefit deriving from restitution there is no obligation to make restitution (Art. 35). But if restitution is unavailable or insufficient to ensure full reparation, compensation is payable for financially assessable loss (Art. 36). Where injury results which cannot be made good by either restitution or compensation, the responsible State is under an obligation to give satisfaction for the injury caused (Art. 37).

29  On second reading Art. 38 2001 ILC Articles dealing with interest was added. There is no specific mention of compound interest, but the commentary refers to the debate about whether and in what circumstances an award of compound interest may be justified (UN ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ Commentary to Arts 38 (8) and (9); UN ILC Special Rapporteur J Crawford, ‘Third Report on State Responsibility: Add. 1’ paras 195–214). In practice tribunals, especially in investment arbitration, are increasingly awarding compound interest (see also Investment Disputes; Arbitration).

30  Finally, Art. 39 2001 ILC Articles provides that where an injured State or the person on whose behalf the State is claiming contributes to the injury, this may be taken into account in the determination of reparation. This is a common sense principle which goes under various names in national legal systems—contributory fault, contributory negligence, etc. It is also implicated in some cases by the so-called duty to mitigate one’s loss. Most of the precedents concern diplomatic protection, but there is no reason why the same principle should not be applied in inter-State cases also.

31  The rather general formulations of the ILC may be taken to reflect the customary international law position, and have been applied as such by tribunals (see also international courts and tribunals). But they do not go very far, for example in relation to the techniques of quantification of the value of income-producing assets in expropriation cases. In practice tribunals will often award less than the book value of assets, especially where there was never a going concern, and reliance losses may be discounted. Mass claims procedures may sacrifice accuracy for speed in calculating a figure and, so to speak, closing the books. Specialized forums, eg human rights bodies, may award damages more as a vindication of the rights infringed than as an economic evaluation of what was lost (Human Rights, Treaty Bodies). Moreover in many cases the respondent State could have achieved the end result lawfully but erred on some issue of procedure or process, and damages should not put the claimant in a better position than it would have experienced had the wrongful act not occurred. Another way of putting this is that the respondent State should only have to pay for the least expensive lawful course of action—but working out hypothetically what that would have been can be very difficult, eg in cases of irremediable financial collapse or the failure of a major project. Overall the award of compensation in international law is very far from being an exact science.

(c)  Serious Breaches of Peremptory Norms

32  The controversy over international crimes has already been mentioned (see para. 13 above). The ILC eventually agreed to delete any reference to State crimes and to express the concern about the most serious breaches of international law in other ways. Within the framework of Part Two 2001 ILC Articles, certain special consequences are specified as applicable to a serious breach of obligations arising under peremptory norms. These include the obligation on the part of third States not to recognize such a breach or its consequences as lawful and to co-operate in its suppression. In addition, within the framework of invocation of responsibility it is recognized that every State is entitled to invoke responsibility for breaches of obligations to the international community as a whole, irrespective of their seriousness (Art. 48 (2) (b) 2001 ILC Articles).

33  This depenalization of State responsibility has generally been welcomed. The truth is that the term ‘crime’ in relation to States was never accompanied either by the due process guarantees which must attach to findings of criminal responsibility or by the penal consequences that such responsibility ought to entail. For example a proposal—in the nature of a trial balloon—by the Special Rapporteur that a serious breach may give rise to the possibility of the payment of damages reflecting the gravity of the breach proved highly controversial both within the ILC and the UN General Assembly (‘UNGA’) Sixth Committee and was rejected (‘UNGA’; United Nations, General Assembly; United Nations, Sixth Committee. The general view is that punitive damages have no application to States.

34  It is significant that the ILC eventually settled on serious breaches of peremptory norms rather than obligations to the international community as a whole as the defining term of Chapter III 2001 ILC Articles. The ICJ in articulating the concept of obligations erga omnes in 1970 had been concerned with invocation, not with the status of the breach as such. Since then the two terms have competed in the literature and to some extent in the case law. The 2001 ILC Articles treat peremptory norms as concerned with substance and obligations erga omnes as concerned with invocation. This has the merit of accurately reflecting their historical origins but it begs the question of the underlying relation between the two concepts. That there must be such a relation seems clear. On the one hand, surely all States have an interest at the level of invocation in respect of the breach of a peremptory norm. On the other hand, it would be odd if two States could deviate in their mutual relations from obligations owed in the common interest by each and invokable by all other States. Part of the difficulty has lain in the failure to distinguish obligations towards all the States Parties to a treaty—even when these happen to amount to all or virtually all States in the world—and obligations to the international community as a whole. States may assume obligations to all other States—eg in the law of the sea—without these obligations being peremptory or directly enforceable as international law against non-States. Notwithstanding the prerogatives of sovereignty, the international community is not to be conflated with the number of States that happen to exist at any given time—a highly variable population, historically. Once this distinction is accepted, then it seems there is no plausible example of an obligation erga omnes which is not also peremptory, and this suggests that the two are different aspects of a single underlying concept.

35  Thus Chapter III 2001 ILC Articles applies to ‘the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law’ (Art. 40 (1)). Only serious breaches, ie those characterized as involving ‘a gross or systematic failure by the responsible State to fulfil the obligation’ (Art. 40 (2)) imposed by a peremptory norm are covered. Only such breaches entail the additional consequences set out in Art. 41. The reason is that there might be minor breaches of obligations arising under peremptory norms which would not be the concern of Chapter III.

36  The deletion of the term ‘crime’ is not just a matter of terminology. Part One 2001 ILC Articles now proceeds on the basis that internationally wrongful acts of a State form a single category and that the criteria for such acts—in particular the criteria for attribution and the circumstances precluding wrongfulness—apply to all, without reference to any distinction between delictual and criminal responsibility. It should be stressed that national legal systems commonly adopt different secondary rules for criminal as compared with civil cases—eg in the context of defences and excuses.

37  Some of these issues were judicially tested in the ICJ’s Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). There, the ICJ discussed the existence of consequences for third States as a result of the breaches by Israel of its obligations ‘to respect the right of the Palestinian people to self-determination and…obligations under international humanitarian law and international human rights law’ (at para. 149). Having held that, on the facts available to it, the construction of the Wall involved serious breaches of these fundamental obligations the court held that ‘[g]iven the character and the importance of the rights and obligations involved’ (ibid para. 159), other States were under an obligation not to recognize the illegal situation resulting from the construction of the wall. Furthermore they were under an obligation not to render aid and assistance in maintaining the situation thereby created, as well as to see to it that ‘while respecting the United Nations Charter and international law…any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end’ (ibid). In addition, the ICJ was of the view that the ‘United Nations, and especially the UNGA and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall’ (ibid para. 160; see also Israel, Occupied Territories). Although the ICJ made no express reference to Arts 40 and 41 2001 ILC Articles it did use, unacknowledged, actual words drawn from Art. 41. Moreover the ICJ’s reference to the ‘character and importance of the rights and obligations involved’ (ibid para. 159) can be read as an elliptical reference to the peremptory character of the norms in question rather than their erga omnes character. In an advisory opinion, there was no question of the exercise of a right of invocation.

38  The ICJ’s approach should be contrasted with the partially dissenting opinion of Judge Kooijmans. Agreeing on the illegality of the wall and on the consequences for Israel as the responsible State, he did not agree on the consequences for third States. In particular he had

39  In the context of sanctions, of legal penalties flowing from crimes of State, one can sympathize with the view that an obligation not to recognize a fact is illusory and insubstantial. But that was not what was at stake here. Art. 41 2001 ILC Articles, or rather the customary law obligation it seeks to embody, is not concerned with the recognition of facts but with their legitimation. States are obliged not to recognize as lawful a situation created by a serious breach of a peremptory norm. The recognition as lawful of a regime—whether of apartheid in South Africa or of other forms of separation or alienation—is not just the recognition of a fact. It legitimates the regime and tends to its consolidation (see also Non-Recognition).

40  Part Two Chapter III 2001 ILC Articles is thus a framework for the progressive development, within a narrow compass, of a concept which ought to be broadly acceptable. On the one hand it does not call into question established understandings of the conditions for State responsibility as contained in Part One 2001 ILC Articles. On the other hand, it recognizes that there can be egregious breaches of fundamental obligations which require some response by all States. As to such responses, the obligations imposed by Art. 41 2001 ILC Articles are not demanding, although they are by no means trivial. The most important, that of non-recognition, already reflects general international law. Genocide, aggression, apartheid, and forcible denial of self-determination, for example, all of which are generally accepted as prohibited by peremptory norms of general international law, constitute wrongs which shock the conscience of mankind. It is surely appropriate to reflect this in terms of the consequences attached to their breach. No doubt it is true that other breaches of international law may have serious consequences, depending on the circumstances. The notion of serious breaches of peremptory norms is without prejudice to this possibility, and to that extent the consequences referred to in Art. 41 2001 ILC Articles are non-exclusive.

(a)  The Injured State and Other Interested States

43  The concept of the injured State is central to the invocation of State responsibility. Art. 40 2001 ILC Articles adopted on first reading sought to define the injured State in an apparently unitary way. Although there was some support for the general approach underlying the text, most governments expressed serious concerns. It was open to criticism as unwieldy, prolix in its treatment of bilateral responsibility and erratic and uneven in its treatment of multilateral obligations. For example, although all States were injured by any breach of human rights, this was not the case for other multilateral conventions in the general interest—eg environmental treaties—unless the treaty expressly so provided (see also Environment, Multilateral Agreements; Community Interest).

44  Arts 42 and 48 2001 ILC Articles deal with the concept of invocation of responsibility by making a fundamental distinction between invocation of responsibility by an injured State, and invocation of responsibility by other States. According to Art. 42 2001 ILC Articles, a State may be considered injured by a breach of an obligation in three cases. First and simplest is where the obligation is owed to it individually, eg with a bilateral treaty or an obligation under customary international law having equivalent effect. The second case is that of a multilateral obligation—up to and including an obligation to the international community as a whole—in circumstances where the breach of the obligation ‘[s]pecially affects that State’ (Art. 42 (b) (i)). This is the direct parallel and corollary of Art. 60 (2) (b) VCLT: a State entitled under Art. 60 (2) (b) VCLT to suspend a multilateral treaty for material breach must logically be recognized as injured by the breach and entitled to insist on the performance of the obligation. The third case is that of the integral obligation properly so-called, a specialized case but not uncommon in the field for example of disarmament. Again the analogy is provided by the law of treaties, Art. 60 (2) (c) VCLT: it is the case of a breach ‘of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation’.

45  By contrast, under Art. 48 2001 ILC Articles any State which is a member of a group of States for whose collective interest an obligation is established may invoke responsibility for breach of that obligation. Similarly any State may invoke responsibility for breach of an obligation owed to the international community as a whole. By definition obligations erga omnes are established for the protection of a collective interest.

46  In several respects Arts 42 and 48 2001 ILC Articles represent a conceptual shift from the position taken on first reading. Apart from the change in terminology from ‘international crimes’ of States (Chapter IV 1980 Draft Articles) to obligations ‘owed to the international community as a whole’ (Art. 48 (1) (b) 2001 ILC Articles), Art. 48 2001 ILC Articles rejects the legal fiction that breach of such an obligation made all other States into individually injured States. Instead it permits the invocation of the responsibility of the wrongdoing State by any one of the States identified—indeed, in the case of obligations to the international community as a whole, to all States. In effect this is public interest standing, not the expression of a subjective right. This shift reflected a wider concern at the apparent assumption that all responsibility relations are to be assimilated to classical bilateral right/duty relations, and at the failure to address the ways in which multilateral responsibility relations differ from bilateral ones. Additionally, the new formulation permits States to act in the collective public interest, a welcome development for the implementation of the international responsibility of States in areas concerning collective good or the common welfare.

(b)  Forms of Reparation Available to Injured and Other States

47  The new formulation in Arts 42 and 48 2001 ILC Articles in respect of the invocation of State responsibility brought to light important issues as to the consequences of an internationally wrongful act. As noted already, there is a clear distinction between consequences that flow as a matter of law from the commission of an internationally wrongful act and those consequences which depend on the subsequent responses of the parties. For example, a refusal to make reparation may lead to the possibility of countermeasures; a waiver by the injured State may result in loss of the right to invoke responsibility. Both are options not requirements, yet it was sensible for the articles to deal with them.

48  Part Three 2001 ILC Articles seeks to address this deficiency by dealing with the modalities of and limits upon the invocation of responsibility by an injured State, including the right to elect the form of reparation. An injured State is entitled to elect between the available forms of reparation: it may prefer compensation to the possibility of restitution, as Germany did in the Chorzów Factory Case (at 21) or as Finland eventually chose to do in its settlement of the Passage through the Great Belt Case (Finland v Denmark). This room for choice on the part of an injured State is reflected in Art. 43 2001 ILC Articles, which provides that an injured State may specify ‘what form reparation should take’.

49  The possibility of non-injured States invoking responsibility of a State for an internationally wrongful act, now provided for in Art. 48 2001 ILC Articles, raises the question of the forms of reparation available to those non-injured States. No doubt where a State is individually a victim of a breach of a collective or community obligation—as, for example, Kuwait faced with Iraq’s aggression (Iraq–Kuwait War [1990–91])—its position may be assimilated to that of the injured State in a bilateral context: Art. 42 (b) 2001 ILC Articles reflects this position. But the position is different with respect to the broader class of States which have an interest in the breach of a collective or community obligation in the absence of a direct injury: they may call for cessation and for assurances and guarantees of non-repetition; they may also insist on compliance with the obligation of reparation, in the interests of the injured State. Accordingly Art. 48 (2) 2001 ILC Articles allows this wider group of States by invoking responsibility to seek cessation of the internationally wrongful act and assurances and guarantees of non-repetition, as well as ‘performance of the obligation of reparation in accordance with the preceding articles, in the interests of the injured State or of the beneficiaries of the obligation breached’.

50  One issue that arises quite frequently—as with ‘coalitions of the willing’, which sometimes willingly overlook their individual obligations under international law—is the scope of responsibility relating to the same act or transaction but involving a plurality of States. In respect of both the invocation of responsibility by several States and the invocation of responsibility against several States, the position under international law seems straightforward. Art. 47 (1) 2001 ILC Articles provides in effect that each State is responsible for its own conduct in respect of its own international obligations—the so-called principle of independent responsibility. The position involving a plurality of injured States is also clear: each injured State is entitled to claim against any responsible State in respect of the losses flowing from the act of that State (Art. 46 2001 ILC Articles). But such claims are subject to two provisos. The first, incorporated in Art. 47 (2) (a), is that the injured State may not recover, by way of compensation, more than the damage it has suffered. The second is that where there is more than one responsible State in respect of the same injury questions of contribution may arise between them. Art. 47 (2) (b) does not address the question of contribution among several States which are responsible for the same wrongful act; it merely provides that the general principle permitting recovery is without prejudice to any right of recourse which one responsible State may have against any other responsible States. Whether a tribunal having jurisdiction over two States which are each responsible for the same wrongful conduct will have jurisdiction to apportion responsibility as between them is a separate matter.

(c)  Countermeasures

51  If cessation or reparation is denied by the responsible State, a further mechanism for the implementation of responsibility is the taking of countermeasures. These are dealt with in the 2001 ILC Articles as an aspect of invocation. Part Three Chapter II was the most controversial aspect of the text on second reading. The most fundamental concern related to the very inclusion of countermeasures, either at all or in the context of the implementation of State responsibility. A second concern went to the formulation of the articles, especially those dealing with obligations not subject to countermeasures and the procedural conditions on resort to countermeasures. The third concern involved the question of so-called collective countermeasures; that is countermeasures taken by States other than the injured State.

52  One view was that countermeasures should be eliminated from the text, if not from real inter-State relations. The ILC did not accept this position. A provision on countermeasures had been present in the draft for over two decades and it had been endorsed in the jurisprudence, most notably by the ICJ in the Gabčíkovo-Nagymaros Case (Hungary/Slovakia) (para. 83) see also Gabčíkovo-Nagymaros Case [Hungary/Slovakia]). To the extent that it was an institution or practice governed by international law it was historically part of the law of State responsibility. And the opportunity to regulate the subject through the ILC would likely not come again (see also Reprisals; Retorsion; Sanctions).

53  From a legal point of view countermeasures are measures, otherwise unlawful, taken against another State by way of response to an unlawful act by that State. This simple definition—like all definitions, avoided in the 2001 ILC Articles—raises a host of questions. Why should an injured State be able to ignore international law obligations towards another State just because it has been wronged? Self-defence is an imperfect analogy since it is conceived as an inherent right in a situation of armed attack. Outside the scope of the use of force, though, why should not the injured State be required to pursue its remedies by other means, including by retorsion, otherwise unfriendly but lawful conduct such as suspension of trade or diplomatic relations, economic boycotts, etc (see also Unfriendly Act)? What is the relation between countermeasures and judicial settlement of international disputes?

54  By comparison with certain other issues, the substance of the provisions relating to countermeasures adopted on first reading was approved; the review undertaken at second reading was one of synthesis and refinement rather than major change. The notion of countermeasures as temporary is emphasized by the notion of suspension of performance of obligations (Art. 49 (2) 2001 ILC Articles). It is provided that countermeasures should ‘as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question’ (Art. 49 (3)), and that they should be terminated ‘as soon as the responsible State has complied with its obligation under Part Two in relation to the internationally wrongful act’ (Art. 53). The provision on proportionality was retained, although in revised terms to reflect the language of the ICJ in the Gabčíkovo-Nagymaros Case.

55  Art. 50 2001 ILC Articles excludes countermeasures altogether in certain cases. On second reading, it was reformulated to draw a clearer distinction between, on the one hand, fundamental substantive obligations which may not be affected by countermeasures (the prohibition on the threat or use of force, fundamental human rights obligations, humanitarian obligations prohibiting reprisals, and obligations under other peremptory norms) and, on the other hand, certain obligations concerned with the maintenance of channels of communication between the two States concerned, including machinery for the resolution of their disputes, and the basic immunities of diplomatic agents and consular officials. Art. 50 (2) (a) reflects the principle of the severability of dispute settlement provisions from related substantive obligations; Art. 50 (2) (b) addresses the special need for protection of diplomatic and consular inviolability in case of disputes, it not being the function of diplomats and consuls to be hostages abroad.

56  On first reading the ILC had uniquely sought to impose a requirement of dispute settlement by arbitration on any State taking countermeasures. It was the UN Conference on the Law of Treaties at Vienna in 1968 and 1969, not the ILC, which insisted on ICJ jurisdiction over States invoking peremptory norms to invalidate treaties (see Art. 66 (a) VCLT). But except in a treaty, how can resort to a customary law institution be conditioned on dispute settlement? And even in a treaty, how can resort to countermeasures be subjected to compulsory dispute settlement when the underlying dispute is not? A general obligation to settle State responsibility disputes by arbitration can hardly be distinguished from a general obligation to settle all inter-State disputes by such means, a proposal regrettably but repeatedly rejected by States. For these reasons it was generally agreed that arbitral jurisdiction should be deleted even if the 2001 ILC Articles were to be proposed for adoption in treaty form. But the relationship between countermeasures and dispute settlement, including negotiations, remained very much a live issue. The compromise eventually achieved in effect seeks to integrate the procedural conditions for taking countermeasures with existing obligations of judicial settlement without seeking to create new obligations. In particular under Art. 52 2001 ILC Articles countermeasures may not be taken, or must be suspended without undue delay if the internationally wrongful act has ceased and the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties. In effect countermeasures are the residue of remedial measures which States may resort to unilaterally when no effective third party measures exist, or where these are not honoured by the responsible State.

57  An equally difficult question is the entitlement of States which are not directly affected to take countermeasures, sometimes described as ‘collective countermeasures’ (see UN ILC Special Rapporteur J Crawford, ‘ Third Report on State Responsibility: Add. 4, paras 386–405; Koskenniemi 337). The draft articles adopted on first reading defined ‘injured State’ (Art. 40 1996 Draft Articles) broadly and allowed any injured State to take countermeasures. Thus any State whatever could take countermeasures in response to an international crime, a breach of human rights, or the breach of certain collective obligations. On second reading the ILC began by allowing countermeasures by States other than the injured State in two situations. First, countermeasures could be taken by a State ‘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’ (Art. 48 2001 ILC Articles). This was treated as analogous to collective self-defence on behalf of a State which is the subject of an armed attack. The second situation concerned countermeasures taken in response to the serious breaches dealt with in Part Two Chapter III 2001 ILC Articles. Any State could individually take countermeasures in respect of such a serious breach.

58  In the ensuing debate, a matter of particular concern was the relation of this proposal to collective measures taken by or within the framework of international organizations. There was a risk of duplicating Chapter VII UN Charter at the level of the individual action of States or of a small number of States as exemplified, perhaps, in the Kosovo crisis. Additionally a number of governments expressed concern at the possibility of freezing an area of law still in the process of development. A majority of the ILC agreed with the general thrust of government comments that the notion of third party countermeasures has only a doubtful basis in international law and could be destabilizing as compared with action through competent international organizations. However, there was a concern that the articles did not imply that countermeasures could only ever be taken by States directly injured in the sense of Art. 42 2001 ILC Articles: although State practice was not extensive, it did not support such a restrictive stance. While the current state of international law on measures taken in the common interest might be uncertain, it could hardly be the case that countermeasures were limited to breaches of obligations of a bilateral character. Accordingly, the ILC agreed on the need for a saving clause which would reserve the position and leave the resolution of the matter to further developments in international law and practice.