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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part III The Sources of International Responsibility, Ch.33.4 Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Countermeasures

Hubert Lesaffre

From: The Law of International Responsibility

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

(p. 469) Chapter 33.4  Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Countermeasures

A subject pursues by its own means, without the intervention of an external authority, the protection or performance of what it considers to be its right: this is what private justice consists of.1

Countermeasures form part of the framework of this ‘private justice’, as a peaceful means of inducing a State to comply with its obligations, in contrast to retaliation by force, which is moreover prohibited. Countermeasures are measures adopted by a State in response to a wrongful act committed by another State. As we will see, it is necessary to refine this definition to limit it to measures which are taken in violation of customary or conventional international law. At this stage, it is useful to note that the definition of countermeasures adopted by the ILC corresponds to the definition of non-armed retaliation adopted by the Institut de droit international in 1934.2

Countermeasures have two particular characteristics. First, and in contrast to some other circumstances precluding wrongfulness, they are constituted by a deliberate act contrary to international obligations, taken knowingly and willingly by a State. They are not conditioned on impossibility. Countermeasures may therefore contribute to instability in international relations in general and the public order in particular, since they represent action by States which qualify the legal situation of another State and unilaterally attempt to remedy it.

Second, countermeasures remove the wrongful character of an act, thereby exonerating the State actor of its international responsibility. At the same time, they form one of the (p. 470) means of triggering international responsibility, imposing an obligation to cease wrongful conduct and provide reparation. For this reason, a chapter is devoted to them in Part Three of ARSIWA on the implementation of international responsibility.

The first characteristic of countermeasures has not prevented its recognition as a circum stance precluding wrongfulness. However, the second characteristic posed numerous problems for codification by the ILC.

Notwithstanding the scope of the questions raised, only one State, Mexico, opposed their inclusion in ARSIWA in principle. According to Mexico, they should have been excluded because they ‘[do] not seem to accord with internationally recognized principles on the peaceful coexistence of States’.3 Mexico contested less the actual existence of principles on countermeasures than their legitimization by the ILC, given the risks they present. The ILC considered that ‘the elaboration of a balanced regime of countermeasures was … more likely to be of use in controlling excesses than silence’.4 But the recognition of countermeasures as a circumstance precluding wrongfulness resolves fewer questions than it raises. Special Rapporteur Crawford highlighted these difficulties:5 they will be outlined in Section 1 of this Chapter. However, these difficulties do not prevent codification of an internationally recognized practice in respect of countermeasures, which is examined in Section 2.

The controversy over countermeasures as a circumstance precluding wrongfulness

It is clear that countermeasures as a circumstance precluding wrongfulness are established by international practice, but the regime applicable to countermeasures is far from wellestablished. The work of the ILC in this respect represents progressive development of the law, rather than mere codification of existing principles.

The legality of countermeasures is supported, in broad outline, by the International Court of Justice which established substantive conditions—notably the requirements of proportionality and reversibility—and formal conditions—notably the requirements of prior proof of default and notification—in the Gabčíkovo-Nagymaros Project case.6

Comments from States evidenced disagreement as to the conclusions to be drawn from the judgment in Gabčíkovo-Nagymaros Project for the ILC’s work on countermeasures. Certain States opposed the inclusion of a whole chapter on countermeasures in ARSIWA, on the grounds that it would encourage their use in circumstances where they would be arbitrary and unjustified.7 The majority considered that a single article incorporating ‘the elements on which there was consensus among States’8 would be sufficient. Other States were of the opinion that these uncertainties made a clarification of the countermeasures regime necessary, advocating a separate chapter in ARSIWA. For these States, the Articles could establish an equilibrium between ‘the use of this instrument and the provision of the necessary guarantees against its misuse’.9

(p. 471) The final Special Rapporteur on State responsibility, James Crawford, proposed three alternative solutions to the ILC: first, abolishing the chapter on countermeasures and introducing a single article within the chapter on circumstances precluding wrongfulness; second, retaining only the chapter on conditions for recourse to countermeasures; and third, retaining the draft as it stood, with some improvements.10 Although these proposals appear merely formal, they reveal a fundamental question about the degree of acceptability of countermeasures in inter-state relations, including concerns about legal instability and a lack of balance between powerful and weak States. The more detailed and precise the provisions on countermeasures, the more difficult it would be to have recourse to countermeasures. Conversely, the more vague the provisions, the more space given to States to manoeuvre in respect of countermeasures.

A concern to avoid frequent recourse to countermeasures in general and to limit risks of arbitrariness in particular caused the Commission to retain both an article establishing countermeasures as a circumstance precluding wrongfulness (article 22) and a chapter setting out conditions for taking countermeasures (Chapter III of Part Three).

Practice in support of countermeasures as a circumstance precluding wrongfulness

The possibility that a State could act in a way which would have been wrongful had it not been in response to an act which was itself wrongful was recognized in very early arbitral jurisprudence in the Naulilaa case11 and the Cysne case12 In Naulilaa, the arbitral tribunal stated:

The first condition—sine qua non—of the right to exercise reprisals is a motive created by a preceding act which is contrary to the law of nations.13

Subsequently, the Institut de droit international defined retaliation as:

coercive measures, which derogate from the law of nations, decided and taken by a State, following unlawful acts committed against it by another State and having the purpose to impose to the latter, through an injury, respect for the law.14

It is in this sense that the term ‘countermeasure’ is used today, indicating an act with two characteristics: that it is a violation of one or more conventional or customary rules of international law, and that it constitutes a wrongful act itself.

The hallmark of countermeasures is their ‘intrinsic’ wrongfulness.15 They may be distinguished from acts of retaliation, which are ‘acts, certainly hostile, but perfectly lawful in themselves … [which] can be performed not only against an unlawful act but also in the (p. 472) occasion of a lawful act considered hostile’.16 If the term countermeasure is preferred to ‘reprisals’, that is for legal as well as sociological reasons, the punitive and belligerent connotations of reprisals being too strongly anchored in the history of international relations. In that regard, according to Arangio-Ruiz:

[t]he reasons which may make other terms preferable [to reprisals] are either their greater generality (this is particularly the case of ‘measures’ or ‘countermeasures’) or the frequent association of acts of reprisal with the notion of measures involving the use of force.17

In the same way, the term ‘sanction’ is no longer used to indicate unilateral actions of States. The ILC rejected the formulation ‘the legitimate application of a sanction’ proposed by Ago,18 preferring ‘to reserve this term for decisions of international organizations, and in particular, those of the United Nations’.19

In recognizing that the wrongfulness of an act can be precluded if it is the response to a preceding wrongful act,20 ARSIWA codifies pre-existing general international law. In formulating this as a ‘countermeasure’, the ILC has confirmed the formulation of the arbitral tribunal in Air Service Agreement, which held that:

Under the rules of present-day international law, and unless the contrary results from special obligations arising under particular treaties … [a] State is entitled … to affirm its rights through ‘countermeasures’.21

For its part, the International Court of Justice has recognized the character of countermeasures as circumstances precluding wrongfulness in United States Diplomatic and Consular Staff in Tehran,22 Military and Paramilitary Activities in and against Nicaragua,23 and particularly in Gabčíkovo-Nagymaros Project, in which it declared:

it now has to determine whether such wrongfulness [the adoption of variant C of the dam by Czechoslovakia] may be precluded on the ground that the measure so adopted was in response to Hungary’s prior failure to comply with its obligations under international law …24

Other tribunals and organizations have used the term ‘countermeasure’ in the same way as the ILC. This is the case namely in the Appellate Body of the World Trade Organization, which has held that ‘rules of general international law on state responsibility require that countermeasures in response to breaches by States of their international obligations be proportionate to such breaches’, considering that article 51 ‘sets out a recognized principle of customary international law’.25 In a general manner, the Appellate Body has stated that, (p. 473) ‘relevant principles under international law, reflected in the Articles on State Responsibility, support the proposition that countermeasures may continue until such time as the responsible State has ceased the wrongful act by fully complying with its obligations’.26

In 2007, a NAFTA Tribunal affirmed that article 22 ARSIWA reflected customary international law. In Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v United Mexican States, Mexico argued that the imposition of a tax on high fructose corn syrup was a lawful countermeasure in response to previous breaches by the United States of NAFTA in relation to the access of Mexican-produced sugar to the United States market, and for its failure to make use of the dispute resolution procedure contained in Chapter 20 of NAFTA in relation to the dispute as to those obligations.27 The Tribunal rejected Mexico’s argument, finding that the imposition of the tax in question could not be justified as a valid countermeasure. In its discussion of customary international law on countermeasures, the Tribunal stated:

The Tribunal takes as an authoritative statement of customary international law on countermeasures the position of the International Court of Justice, as confirmed by the ILC Articles. Article 22 provides that ‘the wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure …’.28

More recently, two other NAFTA Tribunals dealing with the sweeteners dispute have affirmed that the principle incorporated in article 22 ARSIWA reflects customary international law, while disagreeing on the availability of countermeasures in the context of Chapter 11 of NAFTA.29

It is thus accepted in modern international law that countermeasures constitute circumstances precluding wrongfulness of an act. Countermeasures preclude the wrongfulness of the act and not only the responsibility of the actor.

Further reading

Footnotes:

D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 1.

Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), (1934) 38 Annuaire IDI 710.

Comments and observations received from governments, A/CN.4/488, 25 March 1998, 83.

Report of the ILC, 52nd Session, ILC Yearbook 2000, Vol II(2), 53 (para 308).

Crawford, First Report on State Responsibility, ILC Yearbook 1998, Vol II(1), 1, 8 (paras 28–32).

Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 52ff (paras 83ff).

See more precisely the comments of Japan, the United Kingdom and the United States in ‘Comments and observations received from Governments’, A/CN.4/515, 19 March 2001, 74–77.

Comment of Japan, ibid, 75.

Comment of the Netherlands, ibid, 75.

10  J Crawford, Fourth Report on State Responsibility, 2001, A/CN.4/517, para 60.

11  Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa ( ‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011.

12  Responsibility of Germany for acts committed subsequent to 31 July 1914 and before Portugal entered into the war (‘Cysne’) (Portugal v Germany), 30 June 1930, 2 RIAA 1035.

13  Responsibility of Germany for damage caused in the Portuguese colonies in the south of Africa ( ‘Naulilaa’) (Portugal v Germany), 31 July 1928, 2 RIAA 1011, 1027.

14  Institut de droit international, ‘Régime des représailles en temps de paix’ (Paris, 19 October 1934), (1934) 38 Annuaire IDI 710.

15  D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 133.

16  L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 7.

17  G Arangio-Ruiz, Third Report on State Responsibility, ILC Yearbook 1991, Vol II(1), 1, 12 (para 25).

18  R Ago, Eighth Report on State Responsibility, ILC Yearbook 1979, Vol II(1), 3, 46 (para 99).

19  Ch Leben, ‘Les contre-mesures inter-étatiques et les réactions à l’illicite dans la société internationale’ (1982) 28 AFDI 11; see also the debates within the ILC in relation to draft art 30, ILC Yearbook 1979, Vol I, 54–58 (1544th meeting) and 58–63 (1545th) meeting.

20  See the text of draft art 30 adopted on first reading: ILC Yearbook 1980, Vol II (2), 26–63.

21  Air Service Agreement of 27 March 1946 between the United States of America and France (1978) 18 RIAA 417, 443 (para 81).

22  United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p 3, 27–28 (para 53).

23  Military and Paramilitary Activities in und against Nicaragua (Nicaragua v United States of America), Merits, ICJ Reports 1986, p 14, 127 (para 248).

24  Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, p 7, 55 (para 82).

25  United States—Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea, Report of the Appellate Body of 15 February 2002, WTO Doc WT/DS202/AB/R, para 259.

26  United States—Continued Suspension of Obligations in the EC—Hormones Dispute, Report of the Appellate Body of 16 October 2008, WTO Doc WT/DS320/AB/R, para 382.

27  Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc v United Mexican States (ICSID Case No ARB(AF)/04/05), Award of 21 November 2007, paras 106, 111.

28  Ibid, paras 124–125.

29  Corn Products International Inc v United Mexican States, Decision on Responsibility (ICSID Case No ARB(AF)/04/01), Award of 15 January 2008, para 145; Cargill Inc v United Mexican States, Award (ICSID Case No ARB(AF)/05/02), Award of 18 September 2009, paras 420–430.