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

Part V The Implementation of International Responsibility, Ch.81 Procedural Conditions

Yuji Iwasawa, Naoki Iwatsuki

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: 24 February 2020

Subject(s):
Reparations — Wrongful acts — Countermeasures — Necessity

(p. 1149) Chapter 81  Procedural Conditions

Introduction

The wrongfulness of countermeasures can be precluded only if the target State has committed an internationally wrongful act. However, the wrongfulness of the act of the target State will not have been objectively determined when countermeasures are taken. This uncertainty surrounding the wrongfulness of the initial act gives special importance to the procedural conditions for countermeasures. These conditions seek to ensure the legality of countermeasures by regulating when and under what circumstances the ‘injured’ State may unilaterally resort to countermeasures.

The procedural conditions of countermeasures became the subject of heated discussion in both the ILC and the Sixth Committee of the General Assembly. Some members of the ILC and some governments contended that ARSIWA should not include articles on countermeasures, claiming that they would allow individual States to act as judges in their own cause. Most members of the ILC, however, believed that ARSIWA should regulate the manner in which countermeasures are taken in order to prevent abuses. By means of procedural conditions, the ILC sought to strike a fair balance between controlling the use of countermeasures and not giving undue advantage to the State alleged to have committed an internationally wrongful act.

Under the traditional law of reprisals, States were required to demand reparation before resorting to reprisals. This condition of a prior demand is also considered to be applicable under current international law. Another issue which merits consideration is whether the principle of peaceful settlement of disputes, as provided for in article 2(3) of the UN Charter, restrains the exercise of countermeasures. One must remember that by definition (p. 1150) countermeasures involve conduct which is otherwise unlawful, and that they are coercive in nature; they thus carry the risk of exacerbating the dispute. For these reasons the exceptional nature of countermeasures should be emphasized and the relation between countermeasures and amicable means of dispute settlement as listed in article 33 of the Charter clarified.

The ILC’s consideration of the issues

The ILC began deliberating on the chapter on countermeasures in 1991. Arangio-Ruiz, the Special Rapporteur, thought it necessary to devise a system which would effectively control countermeasures in order to prevent abuse. The procedural conditions proposed by him were twofold: ex ante procedures and ex post procedures. For ex ante procedures, Arangio-Ruiz proposed that an injured State could not take countermeasures ‘prior to the exhaustion of all the amicable settlement procedures available under general international law, the Charter of the United Nations or any other dispute settlement instrument to which it is a party’.1 Some members of the ILC opposed the proposal, contending that it was unrealistic to demand prior exhaustion of all available procedures for amicable settlement. Bowett, among others, maintained that it might take a long time to resolve a dispute through negotiations, and that it would be difficult for the injured State to argue that the responsible State did not cooperate in good faith. He thus advocated that a State taking countermeasures should only be required to offer an amicable procedure, which, if accepted, would result in the suspension of those measures. While the Special Rapporteur stressed the exceptional and subsidiary nature of countermeasures, those who opposed his proposal approved of countermeasures as an essential means of enforcing the rule of law in international society. A compromise between the two opposing views was struck in the 1996 draft as follows. Draft article 48 provided, on the one hand, that ‘prior to taking countermeasures, an injured State shall fulfil its obligation to negotiate’, and on the other hand, that ‘this obligation is without prejudice to the taking by that State of interim measures of protection which are necessary to preserve its rights’.

For ex post procedures, Arangio-Ruiz asserted that some procedures were needed by which an impartial body verified that all the requirements for the countermeasures were met. Thus, he proposed innovative dispute settlement procedures, consisting of two successive compulsory procedures of conciliation and arbitration. Some ILC members opposed the proposal, arguing that such procedures ignored the reality of international relations. Many members, however, welcomed it, believing that it would make States more cautious in taking countermeasures. The 1996 draft provided for dispute settlement procedures which were largely consistent with the proposals of the Special Rapporteur. The draft provided for compulsory conciliation procedures, and the target State was entitled to unilaterally submit a dispute concerning the legality of countermeasures to arbitration.

Comments and observations by various governments on the 1996 draft showed that their opinions were sharply divided with respect to which procedural conditions were imposed on countermeasures as a matter of positive international law, and which procedures were desirable as a matter of progressive development. As far as the ex ante procedures were concerned, (p. 1151) the focus of discussion was the exhaustion of the obligation to negotiate and the concept of provisional measures by way of exception. In the case of the ex post procedures, many governments reacted strongly to the compulsory dispute settlement procedures.

On second reading the ILC attempted to construct a more balanced regime of countermeasures in light of these comments. With regard to the ex ante procedures, the 2001 Articles no longer required the injured State to exhaust the obligation to negotiate prior to taking countermeasures. The State intending to take countermeasures is only required to call on the responsible State to make full reparation and to notify the responsible State of its decision to take countermeasures. ‘Provisional’ countermeasures were renamed ‘urgent’ countermeasures because all countermeasures were believed to be provisional in nature. ILC members were divided on the question of whether the ex post procedures should be retained, and this question depended on the form that the draft articles would eventually take. In the end, the ILC decided to recommend that the General Assembly take note of the Articles in a resolution. As a result, provisions on dispute settlement were eliminated from the draft, and thus, the 2001 Articles do not provide for ex post procedural conditions of countermeasures.

Call for reparation and notification

(a)  Call for reparation (sommation)

The Articles provide for ‘Conditions relating to resort to countermeasures’. Specifically, article 52(1)(a) states that, before taking countermeasures, an injured State must call on the responsible State to make reparation for the injury caused by the internationally wrongful act. This requirement to demand reparation before taking countermeasures is well established under customary international law. The arbitral tribunal in the Naulilaa case stated that reprisals are illegal if they are not preceded by a request to remedy the alleged wrong.2 While the Naulilaa case was concerned with armed reprisals under the pre-UN Charter law, the International Court of Justice has confirmed that the requirement applies also to nonarmed countermeasures under contemporary international law. In Gabcíkovo-Nagymaros Project, the Court stated as follows: ‘… the injured State must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to make reparation for it’.3 The purpose of the requirement to demand reparation is to give the responsible State an opportunity to review the action alleged to be unlawful. The target State may provide justifications for its action, or may even discontinue the action and make reparation for the injury caused. Thus, this requirement helps the States concerned to identify issues and settle disputes in a rational manner.

(b)  Notification

Article 52(1)(b) provides that ‘an injured State shall … notify the responsible State of any decision to take countermeasures and offer to negotiate with that State’. If a State takes countermeasures without explaining its intentions, the target State may regard the measures as unlawful and resort to counter-countermeasures, which may worsen the conflict. (p. 1152) To avoid such a sequence of events, the injured State must notify the target State that it is taking the countermeasures with a view to assuring its legitimate interests without eliminating the possibility of reaching a peaceful settlement of the underlying dispute. Thus, the requirement of prior notification can prevent escalation of the conflict.

No particular form of notification is prescribed. The injured State need not specify the content or timing of the measures. However, detailed explanations of contemplated countermeasures may prompt the target State to discontinue the challenged act. The prior notification should not serve as an ultimatum, but rather should be a means of inducing the target State to cease its injurious acts and to cooperate in settling the dispute through amicable procedures.

Countermeasures and procedures for the peaceful settlement of disputes

(a)  Implications for the peaceful settlement of disputes

The most controversial matter concerning procedural conditions is whether and to what extent the conditions of making a prior demand for reparation and issuing prior notification have been strengthened by the principle of peaceful settlement of disputes provided for in articles 2(3) and 33 of the UN Charter. Some commentators have contended that under the principle of peaceful settlement of international disputes, the traditional requirement of sommation has developed into the requirement that all amicable means of dispute settlement be exhausted before countermeasures are taken.4 Others have denied such a requirement, emphasizing that countermeasures not involving the use of force themselves constitute ‘peaceful’ means of settling a dispute.5

The principle of peaceful settlement of disputes should not always bar States from resorting to countermeasures while an amicable means is being pursued. However, it should be noted that when article 2(3) of the UN Charter was adopted, the fundamental idea behind the principle of peaceful settlement of international disputes was understood as follows:

A state would not be permitted to settle its disputes by force or to exert coercion and fight in order to impose its own solution to a controversy. The paragraph thus establishes clearly the principle of peaceful solution versus coercive solution. In that same order of ideas, parties to a controversy shall be encouraged to settle it themselves by peaceful means.6

Given the unilateral and coercive nature of countermeasures, the injured State must endeavour to settle disputes through amicable means. In the exceptional situation where countermeasures are necessary to continue and promote the process of peaceful settlement of disputes, injured States are permitted to resort to countermeasures. In other words, whether countermeasures may be taken is determined by the situation in question, and their lawfulness should be measured in the light of the principle of necessity. To determine whether countermeasures are necessary, one must take into account the attitude of the (p. 1153) target State toward the dispute settlement procedures proposed by the injured State.7 On the other hand, the principle of peaceful settlement of disputes requires States to refrain from any action that may aggravate the situation and hinder or impede the peaceful settlement of the dispute.8 Accordingly, countermeasures must not aggravate the dispute but rather contribute to its peaceful settlement.9

(b)  Application of the principle of necessity

A question arises as to whether an injured State is prohibited from resorting to countermeasures while negotiations are underway for the settlement of the dispute. In the Air Services Agreement case, the Tribunal responded to this question in the negative, stating as follows:

… it is necessary carefully to assess the meaning of counter-measures in the framework of proportionality. Their aim is to restore equality between the Parties and to encourage them to continue negotiations with mutual desire to reach an acceptable solution … But the Arbitral Tribunal does not believe that it is possible, in the present state of international relations, to lay down a rule prohibiting the use of countermeasures during negotiations, especially where such counter-measures are accompanied by an offer for a procedure affording the possibility of accelerating the solution of the dispute.10

When the target State is engaged in negotiations in good faith, there should be no need to resort to countermeasures, and thus countermeasures would not be permitted under the requirement of necessity. It is only when the target State refuses to cooperate in dispute settlement in good faith that countermeasures become necessary. It is, however, not an easy task to identify the degree of non-cooperation that makes countermeasures necessary and justifiable. In the Lac Lanoux Arbitration, the Tribunal expressed the view that the obligation of negotiating an agreement was not fulfilled:

… in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith.11

Even when the target State cooperates in dispute settlement, if it continues the challenged act, the circumstances are different. When irreparable damage is likely to be caused to the rights of the injured State by the continued act of the target State, countermeasures will be recognized as necessary.

If the target State accepts the demands of the injured State, the injured State must withdraw the countermeasures. This is a corollary to the exceptional and subsidiary nature of countermeasures. Similarly, if the target State makes concessions on some matters in the dispute, the necessity of countermeasures must be re-evaluated. These observations should apply mutatis mutandis to cases in which procedures other than negotiation are employed in settlement of the dispute.

(p. 1154) As regards a case in which the dispute has been referred to judicial procedures, article 52(3) of ARSIWA provides that:

Countermeasures may not be taken, and if already taken must be suspended without undue delay if

(a)  the internationally wrongful act has ceased, and

(b)  the dispute is pending before a court of tribunal which has authority to make decisions binding on the parties.

As the Tribunal pointed out in the Air Services Agreement case, countermeasures are no longer necessary, if the purpose of countermeasures is achieved by interim measures of protection ordered by a court. According to the Tribunal, ‘the powers of the tribunal to decide on interim measures of protection … leads to an elimination of existing countermeasures to the extent that the tribunal so provides as an interim measures of protection’.12 The necessity of countermeasures, however, should not disappear, unless a court is actually constituted, has prima facie jurisdiction over the dispute, and possesses the power to order interim measures which are binding on the parties.13

If a treaty provides for special procedures for the settlement of disputes arising under the treaty, the contracting parties should seek to settle disputes through those procedures. However, unless the procedures are mandatory and exclude countermeasures, the general principles explained above should apply.

(c)  Urgent countermeasures

The Articles introduced the concept of urgent countermeasures, which are exempted from the condition of prior notification (article 52(2)). The Articles thus recognize the need of the injured State to urgently resort to countermeasures in some cases in order to preserve its rights. According to the commentary, the rights to be preserved include not only ‘[the injured State’s] rights in the subject-matter of the dispute’ but also ‘its right to take countermeasures’. If the injured State notifies the target State of its intention to take countermeasures, the target State may immunize itself from countermeasures, for example, by withdrawing assets from banks in the injured State. Urgent countermeasures are meant to prevent such actions by the target State. The principle of proportionality should determine whether urgent countermeasures need to be limited to temporary measures such as the freezing of assets or whether they include definitive—but reversible—measures such as the sequestration of assets. The purpose of urgent countermeasures must be the maintenance of the status quo.

Conclusion

All the procedural conditions of countermeasures may be traced to the two guiding principles of necessity and non-aggravation of the dispute. In order to prevent abuse of countermeasures, one must continue to expand upon the details of these principles in the context of countermeasures, taking into consideration the process of dispute settlement. It (p. 1155) is particularly important to clarify the circumstances under which urgent countermeasures may be taken. Urgent countermeasures are nothing but a form of countermeasures in an urgent situation, and their necessity must be shown in a precise manner. If the injured State escapes from procedural conditions in the name of urgency, a notion susceptible to abuse, countermeasures fall into the ‘law of the jungle’, destroying the 20th century development of legal conscience and amicable procedures concerning peaceful settlement of disputes.

Further reading

  • ‘Symposium: Counter-measures and Dispute Settlement: The Current Debate within the ILC’ (1994) 5 EJIL 64
  • D Alland, Justice privée et ordre juridique international (Paris, Pedone, 1994), 373–427
  • J Alcaide Fernández, ‘Contre-mesures et règlement des différends’ (2004) 108 RGDIP 347
  • L Boisson de Chazournes, Les contre-mesures dans les relations internationales économiques (Paris, Pedone, 1992), 157–186
  • Ch Dominicé, ‘Observations sur les droit de l’Etat victime d’un fait internationalement illicite’, in Droit international 2: Cours et travaux de l’I.H.E.I. de Paris (Pedone, Paris, 1982), 40–56
  • Ch Dominicé, ‘La vaine sommation, condition d’exercice des contre-mesures’, in Mélanges en hommages à Michel Waelbrœck, vol 1 (Brussels, Bruylant, 1999) 57
  • C Economidès, ‘La déclaration de Manille sur le règlement pacifique des différends internationaux’ (1982) 28 AFDI 613
  • OY Elagab, The Legality of Non-Forcible Counter-Measures in International Law (Oxford, Clarendon Press, 1988), 64–79, 165–189
  • Y Matsui, ‘Countermeasures in the International Legal Order’ (1994) 37 Japanese Annual of International Law 1
  • M Noortmann, Enforcing International Law: From Self-help to Self-contained Regimes (Aldershot, Ashgate, 2005)
  • L-A Sicilianos, Les réactions décentralisées à l’illicite (Paris, LGDJ, 1990), 178–240
  • B Simma (ed), The Charter of the United Nations: A Commentary, Vol I (2nd edn, Oxford, OUP, 2002), 102–111 (Article 2, Paragraph 3 by C Tomuschat)
  • V Vadapalas, ‘Aspects de processus de la responsabilité internationale’ (1994) 21 Polish Yearbook of International Law 87
  • K Zemanek, ‘The Legal Foundations of the International System’ (1997) 266 Recueil des cours 319–327
  • E Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry, Transnational Publishers, 1984), 118–124(p. 1156)

Footnotes:

Draft art 12(1)(a), G Arangio-Ruiz, Fourth Report on State Responsibility, ILC Yearbook 1992, Vol II(1), 1, 22 (para 52).

Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (Portugal v Germany) (‘Naulilaa’), 31 July 1928, 2 RIAA 1011, 1026.

Gabcíkovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997, p 7, 56 (para 84).

See eg L Condorelli, ‘La règlement des différends en matière de responsabilité international des Etats: quelques remarques candides sur le débat à la C.D.I.’ (1994) 5 EJIL 106.

B Simma, ‘Counter-measures and Dispute Settlement: A Plea for a Different Balance’ (1994) 5 EJIL 102.

Documents of the United Nations Conference on International Organization, San Francisco, 1945, vol 6, 399 and 147.

See Restatement (Third) of the Foreign Relations Law of the United States (St Paul’s, American Law Institute, 1987), §905, Comment c, Reporters Note 3.

GA Res 37/10, Declaration of Manila for the peaceful settlement of disputes, 15 November 1982, Section I, para 8.

See United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), ICJ Reports 1980, p 4, 43 (para 93).

10  Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 304, 339–340 (paras 90–1).

11  Lac Lanoux (France v Spain), 16 November 1957, 12 RIAA 285, 307 (para 11).

12  Air Services Agreement of 27 March 1946 (United States v France) (1978) 54 ILR 304, 341 (para 96).

13  The International Court of Justice held that its orders on provisional measures are binding in the LaGrand case: LaGrand (Germany v United States), ICJ Reports 2001, p 466, 506 (para 109).