<b>Bijsluiter</b>. De hyperlink naar het originele document werkt niet meer. Daarom laat Woogle de tekst zien die in dat document stond. Deze tekst kan vreemde foutieve woorden of zinnen bevatten en de opmaak kan verdwenen of veranderd zijn. Dit komt door het zwartlakken van vertrouwelijke informatie of doordat de tekst niet digitaal beschikbaar was en dus ingescand en vervolgens via OCR weer ingelezen is. Voor het originele document, neem contact op met de Woo-contactpersoon van het bestuursorgaan.<br><br>====================================================================== Pagina 1 ======================================================================

<pre>                                                                    Chapter IV
                                                         STATE RESPONSIBILITY
                          A. Introduction                                     32. The general plan adopted by the Commission at its
                                                                              twenty-seventh session, in 1975, for the draft articles on
                                                                              the topic of “State responsibility” envisaged the structure
28. At its first session, in 1949, the Commission                             of the draft articles as follows: Part One would concern
selected State responsibility among the topics which it                       the origin of international responsibility; Part Two would
considered suitable for codification. In response to Gen-                     concern the content, forms and degrees of international
eral Assembly resolution 799 (VIII) of 7 December 1953                        responsibility; and a possible Part Three, which the Com-
requesting the Commission to undertake, as soon as it                         mission might decide to include, could concern the ques-
considered it advisable, the codification of the principles                   tion of the settlement of disputes and the implementation
of international law governing State responsibility, the                      of international responsibility.7
Commission, at its seventh session in 1955, decided to
begin the study of State responsibility and appointed Mr.                     33. At its thirty-first session, the Commission, in view
F. V. García Amador as Special Rapporteur for the topic.                      of the election of Mr. Roberto Ago as a judge of ICJ,
At the next six sessions of the Commission, from 1956 to                      appointed Mr. Willem Riphagen Special Rapporteur for
1961, the Special Rapporteur presented six successive                         the topic.
reports dealing on the whole with the question of respon-
sibility for injuries to the persons or property of aliens.4                  34. The Commission at its thirty-second session, in
                                                                              1980, provisionally adopted on first reading Part One of
29. At its fourteenth session in 1962, the Commission                         the draft articles, concerning “the origin of international
set up a subcommittee whose task was to prepare a pre-                        responsibility”.8 From its thirty-second to its thirty-eighth
liminary report containing suggestions concerning the                         (1986) sessions, the Commission received seven reports
scope and approach of the future study.5                                      from the Special Rapporteur,9 with reference to Parts Two
                                                                              and Three of the draft.10
30. At its fifteenth session, in 1963, the Commission,
having unanimously approved the report of the Subcom-                         35. At its thirty-ninth session, in 1987, the Commission
mittee, appointed Mr. Roberto Ago as Special Rapporteur                       appointed Mr. Gaetano Arangio-Ruiz as Special Rappor-
for the topic.                                                                teur to succeed Mr. Willem Riphagen, whose term of
31. The Commission, from its twenty-first (1969) to its                          Eighth report: Yearbook . . . 1979, vol. II (Part One), p. 3, document
thirty-first (1979) sessions, received eight reports from                     A/CN.4/318 and Add.1–4 and Yearbook . . . 1980, vol. II (Part One),
the Special Rapporteur.6                                                      p. 13, document A/CN.4/318/Add.5–7.
                                                                                 7
                                                                                   Yearbook . . . 1975, vol. II, pp. 55–59, document A/10010/Rev.1,
                                                                              paras. 38–51.
                                                                                 8
   4
                                                                                   Yearbook . . . 1980, vol. II (Part Two), pp. 26–63.
     For a detailed discussion of the historical background of the topic         9
until 1969, see Yearbook . . . 1969, vol. II, pp. 229 et seq., document A/         The seven reports of the Special Rapporteur are reproduced as
7610/Rev.1.                                                                   follows: Preliminary report: Yearbook . . . 1980, vol. II (Part One),
   5
                                                                              p. 107, document A/CN.4/330;
     Ibid.
   6
                                                                                 Second report: Yearbook . . . 1981, vol. II (Part One), p. 79,
     The eight reports of the Special Rapporteur are reproduced as            document A/CN.4/344;
follows:
                                                                                 Third report: Yearbook . . . 1982, vol. II (Part One), p. 22, document
   First report: Yearbook . . . 1969, vol. II, p. 125, document A/CN.4/       A/CN.4/354 and Add.1 and 2;
217 and Add.1 and Yearbook . . . 1971, vol. II (Part One), p. 193,
document A/CN.4/217/Add.2;                                                       Fourth report: Yearbook . . . 1983, vol. II (Part One), p. 3, document
                                                                              A/CN.4/366 and Add.1;
   Second report: Yearbook . . . 1970, vol. II, p. 177, document A/
CN.4/233;                                                                        Fifth report: Yearbook . . . 1984, vol. II (Part One), p. 1, document
                                                                              A/CN.4/380;
   Third report: Yearbook . . . 1971, vol. II (Part One), p. 199,
document A/CN.4/246 and Add.1–3;                                                 Sixth report: Yearbook . . . 1985, vol. II (Part One), p. 3, document
                                                                              A/CN.4/389;
   Fourth report: Yearbook . . . 1972, vol. II, p. 71, document A/CN.4/
264 and Add.1;                                                                   Seventh report: Yearbook . . . 1986, vol. II (Part One), p. 1,
                                                                              document A/CN.4/397 and Add.1.
   Fifth report: Yearbook . . . 1976, vol. II (Part One), p. 3, document         10
A/CN.4/291 and Add.1 and 2;                                                         At its thirty-fourth session (1982), the Commission referred draft
                                                                              articles 1 to 6 of Part Two to the Drafting Committee. At its thirty-
   Sixth report: Yearbook . . . 1977, vol. II (Part One), p. 3, document      seventh session (1985), the Commission decided to refer articles 7 to
A/CN.4/302 and Add.1–3;                                                       16 of Part Two to the Drafting Committee. At its thirty-eighth session
   Seventh report: Yearbook . . . 1978, vol. II (Part One), p. 31,            (1986), the Commission decided to refer to the Drafting Committee
document A/CN.4/307 and Add.1 and 2;                                          draft articles 1 to 5 of Part Three and the annex thereto.
                                                                           18
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<pre>                                                                     State responsibility                                                                19
office as a member of the Commission had expired on 31                           37. At the forty-eighth session of the Commission, Mr.
December 1986. The Commission, from its fortieth                                 Arangio-Ruiz announced his resignation as Special Rap-
(1988) to its forty-eighth (1996) sessions, received eight                       porteur. The Commission completed the first reading of
reports from the Special Rapporteur.11                                           the draft articles of Parts Two and Three on State respon-
                                                                                 sibility and decided, in accordance with articles 16 and 21
36. By the conclusion of its forty-seventh session, in                           of its statute, to transmit the draft articles provisionally
1995, the Commission had provisionally adopted, for                              adopted by the Commission on first reading,16 through
inclusion in Part Two, draft articles 1 to 512 and articles 6                    the Secretary-General, to Governments for comments and
(Cessation of wrongful conduct), 6 bis (Reparation), 7                           observations, with the request that such comments and
(Restitution in kind), 8 (Compensation), 10 (Satisfaction),                      observations be submitted to the Secretary-General by 1
10 bis (Assurances and guarantees of non-repetition),13                          January 1998.
11 (Countermeasures by an injured State), 13 (Proportion-
ality) and 14 (Prohibited countermeasures).14 It had fur-                        38. At its forty-ninth session, in 1997, the Commission
thermore received from the Drafting Committee a text for                         established a Working Group on State responsibility to
article 12 (Conditions relating to resort to countermea-                         address matters dealing with the second reading of the
sures), on which it deferred action.15 At its forty-seventh                      draft articles.17 The Commission also appointed Mr.
session, the Commission had also provisionally adopted,                          James Crawford as Special Rapporteur for the topic.
for inclusion in Part Three, articles 1 (Negotiation), 2
(Good offices and mediation), 3 (Conciliation), 4 (Task of                       39. The General Assembly, by paragraph 3 of its resolu-
the Conciliation Commission), 5 (Arbitration), 6 (Terms                          tion 52/156 of 15 December 1997, recommended that,
of reference of the Arbitral Tribunal), 7 (Validity of an                        taking into account the comments and observations of
arbitral award) and annex, articles 1 (The Conciliation                          Governments, whether in writing or expressed orally in
Commission) and 2 (The Arbitral Tribunal).                                       debates in the Assembly, the Commission should con-
                                                                                 tinue its work on the topics in its current programme,
   11
      The eight reports of the Special Rapporteur are reproduced as fol-         including State responsibility, and, by paragraph 6 of that
lows:                                                                            resolution, recalled the importance for the Commission of
    Preliminary report: Yearbook . . . 1988, vol. II (Part One), p. 6,           having the views of Governments on the draft articles on
document A/CN.4/416 and Add.1;
                                                                                 State responsibility adopted on first reading by the Com-
   Second report: Yearbook . . . 1989, vol. II (Part One), p. 1, document        mission at its forty-eighth session.
A/CN.4/425 and Add.1;
   Third report: Yearbook . . . 1991, vol. II (Part One), p. 1, document         40. At its fiftieth session, in 1998, the Commission had
A/CN.4/440 and Add.1;
                                                                                 before it the first report of the Special Rapporteur, Mr.
   Fourth report: Yearbook . . . 1992, vol. II (Part One), p. 1, document        Crawford.18 The report dealt with general issues relating
A/CN.4/444 and Add.1–3;
                                                                                 to the draft, the distinction between “crimes” and “delict-
   Fifth report: Yearbook . . . 1993, vol. II (Part One), p. 1, document
A/CN.4/453 and Add.1–3;
                                                                                 ual responsibility”, and articles 1 to 15 of Part One of the
                                                                                 draft. The Commission also had before it the comments
   Sixth report: Yearbook . . . 1994, vol. II (Part One), p. 3, document
A/CN.4/461 and Add.1–3;                                                          and observations received from Governments on State
   Seventh report: Yearbook . . . 1995, vol. II (Part One), document A/
                                                                                 responsibility,19 on the draft articles provisionally
CN.4/469 and Add.1 and 2;                                                        adopted by the Commission on first reading. After having
   Eighth report: Yearbook . . . 1996, vol. II (Part One), document A/           considered articles 1 to 15 bis, the Commission referred
CN.4/476 and Add.1.                                                              articles 1 to 5 and 7 to 15 bis to the Drafting Committee.
   At its forty-first session (1989), the Commission referred to the
Drafting Committee draft articles 6 and 7 of chapter Two (Legal                  41. At the same session, the Commission took note of
consequences deriving from an international delict) of Part Two of the           the report of the Drafting Committee on articles 1, 3, 4, 5,
draft articles. At its forty-second session (1990), the Commission               7, 8, 8 bis, 9, 10, 15, 15 bis and A. The Commission also
referred draft articles 8 to 10 of Part Two to the Drafting Committee.           took note of the deletion of articles 2, 6 and 11 to 14.
At its forty-fourth session (1992), the Commission referred to the
Drafting Committee draft articles 11 to 14 and 5 bis for inclusion in
Part Two of the draft. At its forty-fifth session (1993), the Commission         42. At its fifty-first session, in 1999, the Commission
referred to the Drafting Committee draft articles 1 to 6 of Part Three           had before it the second report of the Special Rappor-
and the annex thereto. At its forty-seventh session (1995), the                  teur.20 That report continued the task, begun at the fiftieth
Commission referred to the Drafting Committee articles 15 to 20 of               session, of considering the draft articles in the light of
Part Two dealing with the legal consequences of internationally
wrongful acts characterized as crimes under article 19 of Part One of
                                                                                 comments by Governments and developments in State
the draft and new draft article 7 to be included in Part Three of the
draft.                                                                              16
   12                                                                                  For the text of the draft articles provisionally adopted by the Com-
      For the text of articles 1 to 5 (para. 1), see Yearbook … 1985,
                                                                                 mission on first reading, see Yearbook . . . 1996, vol. II (Part Two),
vol. II (Part Two), pp. 24–25.
   13
                                                                                 pp. 58–65, document A/51/10, chap. III, sect. D. For the text of draft
      For the text of article 1, paragraph 2, and articles 6, 6 bis, 7, 8, 10    articles 42 (para. 3), 47, 48 and 51 to 53, with commentaries thereto,
and 10 bis with commentaries thereto, see Yearbook . . . 1993, vol. II           ibid., pp. 65 et seq.
(Part Two), pp. 53 et seq., document A/48/10.                                       17
   14                                                                                  For the guidelines on the consideration of the draft articles on
      For the text of articles 11, 13 and 14, see Yearbook . . . 1994,           second reading decided upon by the Commission on the basis of the
vol. II (Part Two), pp. 151–152, footnote 454. Article 11 was adopted            recommendation of the Working Group, see Yearbook . . . 1997, vol. II
by the Commission on the understanding that it might have to be                  (Part Two), p. 58, para. 161.
reviewed in the light of the text that would eventually be adopted                  18
for article 12 (ibid., para. 352). For the commentaries to articles 13                 Yearbook . . . 1998, vol. II (Part One), document A/CN.4/490 and
and 14, see Yearbook . . . 1995, vol. II (Part Two), pp. 64–74,                  Add.1–7.
                                                                                    19
document A/50/10.                                                                      Ibid., document A/CN.4/488 and Add.1–3.
   15                                                                               20
      See Yearbook . . . 1994, vol. II (Part Two), pp. 151–152, para.                  Yearbook . . . 1999, vol. II (Part One), document A/CN.4/498 and
352.                                                                             Add.1–4.
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<pre>20                            Report of the International Law Commission on the work of its fifty-second session
practice, judicial decisions and literature. The Commis-                to completing the second reading of the draft articles at
sion also had before it the comments and observations                   the fifty-third session of the Commission, in 2001. He re-
received from Governments on State responsibility,21 on                 commended the following programme for achieving this
the draft articles provisionally adopted by the Commis-                 ambitious yet feasible goal: the Drafting Committee
sion on first reading. After having considered articles 16              should produce a complete text of the draft articles, leav-
to 19, paragraph 1, 20 to 26 bis, 27 to 28 bis, 29, 29 bis,             ing aside the question of dispute settlement, by the end of
29 ter, paragraph 1, 30 to 33, 34 bis, paragraph 1, and 35,             the present session; this would enable the Commission to
the Commission referred them to the Drafting Committee.                 consider and adopt the entire text and commentary, in the
                                                                        light of any further comments by Governments, at the
43. At the same session, the Commission took note of                    next session.
the report of the Drafting Committee on articles 16, 18,
24, 25, 27, 27 bis, 28, 28 bis, 29, 29 bis, 29 ter, 31 to 33
and 35. The Commission also took note of the deletion of                        (b) Outstanding issues relating to Part One
articles 17, 19, paragraph 1, 20 to 23,22 26 and 34.23
                                                                        48. As identified in paragraphs 2 and 3 of the third
  B. Consideration of the topic at the present session                  report, there were four outstanding issues concerning Part
                                                                        One that could not be resolved until related aspects of Part
                                                                        Two had been decided: State responsibility for breach of
44. At its present session, the Commission had before it                obligations owed to the international community as a
the comments and observations received from Govern-                     whole (art. 19), the formulation of articles on exhaustion
ments on State responsibility,24 and the third report of the            of local remedies (art. 22) and countermeasures (art. 30),
Special Rapporteur. That report continued the task, begun               and the possible addition of an article on the exception of
at the fiftieth session, in 1998, of considering the draft              non-performance as a circumstance precluding wrongful-
articles, particularly those contained in Part Two, in the              ness. In addition, Part One contained material that was in
light of the comments by Governments and developments                   several instances repeated in Part Two, e.g. in article 42,
in State practice, judicial decisions and literature. The               paragraph 4, which was unnecessary and raised doubts
Commission considered the report at its 2613th to 2616th,               about the assumed applicability of the principles con-
2621st to 2623rd, 2634th to 2640th and 2643rd to 2653rd                 tained in the former part to the latter.
meetings held from 2 to 5 May, 16 to 18 May, 8 and 9
June, 10 to 14 July and 20 July to 8 August 2000.
                                                                            (c) General considerations relating to Part Two as
45. The Commission decided to refer the following                                           adopted on first reading
draft articles to the Drafting Committee: 36, 36 bis, 37 bis
and 38 at its 2616th meeting, on 5 May; 40 bis at its
2623rd meeting, on 18 May; 43 and 44 at its 2637th meet-                (i) The scope of Part Two as compared to Part One
ing, on 11 July; 45, 45 bis and 46 bis at its 2640th meeting,           49. As a general point, the Special Rapporteur drew
on 14 July; 46 ter, 46 quater, 46 quinquies, and 46 sexies              attention to a disjunction between Parts One and Two
at its 2645th meeting, on 25 July; 30, 47, 47 bis, 48, 49,              since the former was concerned with breaches of obliga-
50 and 50 bis at its 2649th meeting, on 1 August; and 50                tions by States and the latter, and especially article 40,
A, 50 B, 51 and the texts contained in the footnotes to                 was concerned with the responses of States to breaches of
paragraphs 407 and 413 of the report at its 2653rd meet-                international law. The obligations covered in Part One
ing, on 8 August.                                                       might, for example, be obligations to an international
46. At its 2662nd meeting, on 17 August 2000, the                       organization or to an individual—breaches whose invoca-
Commission took note of the report of the Drafting Com-                 tion by persons other than States were not dealt with in
mittee on the complete text of the draft articles provision-            Part Two. Accordingly, he was proposing a saving clause
ally adopted by the Drafting Committee on second                        stating that Part Two was without prejudice to any rights
reading (A/CN.4/L.600) which are reproduced in the                      arising from the commission of an internationally wrong-
annex to this chapter.                                                  ful act by a State that accrued to any person or entity other
                                                                        than a State.
      1. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF
      GENERAL ISSUES RELATING TO THE DRAFT ARTICLES                     (ii) Title
   (a) Programme for completion of the second reading                   50. The present title of Part Two, “Content, forms and
                                                                        degrees of international responsibility”, was not readily
47. As indicated in paragraphs 3 and 4 of the third                     comprehensible or self-explanatory and could be replaced
report, the Special Rapporteur reaffirmed his commitment                by the more straightforward phrase “Legal consequences
                                                                        of an internationally wrongful act of a State”, which con-
   21
      Yearbook . . . 1998, vol. II (Part One), document A/CN.4/488      formed to the traditional view of State responsibility as a
and Add.1–3 and Yearbook . . . 1999, vol. II (Part One), document A/    secondary legal consequence arising from a breach.
CN.4/492.
   22
      Article 22, as adopted on first reading, dealt with exhaustion of
local remedies. The Special Rapporteur proposed a new text for the      (iii) Formulation of the draft articles
provision as article 26 bis. The Drafting Committee decided to reserve
discussion on the content of the article.                               51. As discussed in paragraphs 7 (b) and 7 (c) of the
   23
      The Drafting Committee adopted article 34 (Self-defence) as       report, future drafting work should review the awkward
article 29 ter.                                                         formulation of the draft articles contained in Part Two in
   24
      See footnote 21 above.                                            terms of categorical rights and the qualifying phrase
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<pre>                                                        State responsibility                                                    21
“where appropriate”, which had attracted the criticism of           include dispute settlement provisions unless the draft was
Governments from various legal traditions on the grounds            submitted to the General Assembly as a convention. Fur-
that the articles were either too rigid or so vague as to lack      thermore, the acceptance of such provisions was ques-
content. However, in some cases qualifications such as              tionable since the text covered literally the whole of the
“appropriate” may still be necessary in the absence of              obligations of States.
detailed specification of the content of a particular provi-
sion.                                                               57. The Special Rapporteur also recommended includ-
                                                                    ing a Part Four on general provisions, to include, inter
                                                                    alia, the provision on lex specialis.
     (d) Proposed revised structure of the remaining
                        draft articles
                                                                          2. SUMMARY OF THE DEBATE ON GENERAL ISSUES
52. As discussed in paragraphs 8 and 9 of the report, the
Special Rapporteur proposed the revised structure set               58. The Special Rapporteur was commended for his
forth in paragraph 10 for the remaining substantive sec-            third report which enriched not only the work of the Com-
tions of the draft articles to disentangle issues relating to       mission, but also international law in general, by estab-
article 40 and to facilitate discussion.                            lishing the parameters and identifying the problems with
                                                                    respect to an extremely difficult subject.
53. Chapter I of Part Two should retain its existing title
(General principles) and should consist of at least three
articles concerning general principles: article 36, a gen-             (a) Programme for completion of the second reading
eral introductory provision indicating that an internation-
ally wrongful act entailed legal consequences; article 36           59. Support was expressed for the Special Rapporteur’s
bis, dealing with cessation as a general principle; and arti-       proposed programme for the completion of the second
cle 37 bis on reparation as a general principle. Further-           reading of the draft articles. However, it was noted that
more, the draft articles should contain a definition of             the Commission had set aside for further reflection a num-
“injured State”, set out in article 40 bis, but it could be         ber of questions relating to Part One, such as State respon-
placed somewhere else in the text. It was uncertain                 sibility for breaches of obligations erga omnes and the
whether article 38 was needed, but it had been included             relationship between the provision in question and article
for the purposes of discussion.                                     19 as adopted on first reading. It was also said that the
54. Chapter II would deal with the three forms of repa-             draft articles of Part Two adopted on first reading at the
ration, namely restitution, compensation and satisfaction           forty-eighth session25 had not been considered with the
(without necessarily specifying the modalities of the               same care as those of Part One. It was suggested that, in
choice between them, which could be done later), interest,          particular, the question of the violation of multilateral
and the consequences of the contributory fault of the               obligations should be the subject of an in-depth discus-
injured State, and any other provisions that might be con-          sion. It was noted that the fifty-fifth session of the General
sidered appropriate in the light of the debate.                     Assembly would give the Commission a last opportunity
                                                                    to obtain feedback from the Sixth Committee on certain
55. The Special Rapporteur proposed inserting a new                 questions such as countermeasures and dispute settle-
Part Two bis entitled “The implementation of State                  ment.
responsibility” to introduce a distinction between the
legal consequences for the responsible State of an interna-
tionally wrongful act and the invocation of those conse-            (b) The distinction between primary and secondary rules
quences by the primary victim of the breach or, in certain
circumstances, by other States; and to eliminate some of            60. Regarding paragraph 50 of the report, the view was
the confusion created by article 40. Part Two bis could             expressed that the distinction between primary and sec-
contain articles dealing with the general question of who           ondary rules was not problematic since the function of a
was entitled to invoke responsibility, currently dealt with         norm in a given context determined whether it was of a
in a highly unsatisfactory manner in article 40; the loss of        primary or secondary nature. In contrast, the view was
the right to invoke responsibility, analogous to the loss of        expressed that the distinction between primary and sec-
the right to invoke grounds for the termination or suspen-          ondary rules was intellectually tempting, but rather artifi-
sion of a treaty under the Vienna Convention on the Law             cial, hard to maintain, difficult to apply in practice and
of Treaties (hereinafter “the 1969 Vienna Convention”);             sometimes invalid. It was, however, unnecessary to dwell
countermeasures as a form of invocation of responsibility,          unduly on the problem even if in certain cases the distinc-
rather than of reparation, since they were taken against a          tion was artificial; as a general matter it was workable and
State that refused to acknowledge its responsibility and            it had long been the plinth on which the entire drafting
cease its wrongful conduct; and the issues addressed in             exercise rested. The Special Rapporteur agreed that the
article 19 in terms of the invocation of a responsibility to        distinction between primary and secondary rules should
the international community as a whole.                             not be abandoned, although the application of many sec-
                                                                    ondary rules would be affected by primary rules, and this
56. Noting the provisional decision not to link the tak-            needed to be made clear as appropriate, especially in the
ing of countermeasures to dispute settlement, the Special           commentary.
Rapporteur recommended that Part Three be considered
in general terms after the adoption of the entire draft, tak-
ing into account their form. It would be pointless to                  25
                                                                          See footnote 16 above.
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<pre>22                       Report of the International Law Commission on the work of its fifty-second session
(c) The reflexive nature of the rules of State responsibility     suggested that the Commission must find a middle way
                                                                  between the two approaches to detailed rules on repara-
61. Support was expressed for the characterization of             tion bearing in mind that the more detailed the rules were,
the rules of State responsibility as reflected in paragraph 7     the less likely it was that reparations would fully comply
of the report. However, it was also suggested that if the         with them and that some flexibility was required in the
circumstances precluding wrongfulness, set out in Part            rules on reparation, particularly since State responsibility
One, were intended to apply to obligations in Part Two, it        cases would usually be dealt with through negotiations,
would be necessary to state this explicitly in the draft.         rather than by an international court or tribunal. The Spe-
Others thought it would be preferable not to regulate this        cial Rapporteur explained that the subject of detailed pro-
question and to leave it to customary international law.          visions had been dealt with in Part Two in the context of
While recognizing the relationship between Parts One              compensation because that was where it most obviously
and Two, it was considered important to avoid premature           arose. In view of the disagreement on the matter, he would
conclusions based on the notion of reflexivity. Noting the        seek guidance from the Commission on the advisability of
uncertainty expressed about reflexivity, the Special Rap-         going into detail on the quantification of compensation or
porteur suggested that it was a matter requiring further          the calculation of interest; these issues were technical in
consideration in the Drafting Committee, which would              character and varied from one context to another. He
have to decide on the retention or deletion of certain pro-       would propose a separate article on interest, since interest
visions.                                                          was different from compensation, but in his provisional
                                                                  view, both articles should be relatively general. It would
                                                                  be a matter for the Commission in due course to decide
             (d) The scope of the draft articles                  how much further detail it wanted.
62. It was suggested that the draft articles be expanded          (ii) Title
to cover all cases of State responsibility, not only those
between States, since in describing consequences of inter-
nationally wrongful acts, account would inevitably have           64. While agreeing with the Special Rapporteur on the
to be taken of the position of all those who, under interna-      need to reformulate the title of Part Two, some thought
tional law, had been injured, whether States, international       that the proposed new title was not fully satisfactory in
organizations, other entities or individuals. The view was        terms of reflecting the content of the articles contained in
expressed that although the present wording of article 36,        Part Two and distinguishing it from Part Two bis. Sugges-
paragraph 1, covered all international obligations, the           tions for the title of Part Two included: “Reparation and
matter could be left to the primary obligation when it            obligation of performance”, “Legal consequences of
came to those other entities and to implementation proce-         international responsibility”, or to refer to “legal implica-
dures other than State responsibility such as reporting           tions” rather than “consequences”. However, the alter-
requirements and domestic legal forums: hence there was           native title “Legal consequences of international respon-
support for the proposed saving clause. It was further            sibility” was described as inappropriate because responsi-
pointed out that the articles were not supposed to codify         bility was an immediate legal consequence of an interna-
the entire law of international responsibility, which was         tionally wrongful act, and it failed to resolve the problem
not sufficiently developed to warrant such treatment. The         of the relationship between Part Two and Part Two bis.
objective was to formulate general provisions that would          The Special Rapporteur agreed that the title of Part Two
provide the foundation for new branches in the law of             covered some aspects which ought to be incorporated in
international responsibility, with the details and nuances        Part Two bis. He was pleased about the apparent agree-
being worked out in future as practice in the field evolved.      ment on the need to draw a distinction between the conse-
                                                                  quences flowing from a wrongful act and their invocation.
                                                                  At a later stage, it would be necessary to consider whether
     (e) General considerations relating to Part Two              the provisions in question should form two separate parts
                                                                  or two chapters of the same part.
(i) The appropriate level of detail and specificity
                                                                  (iii) Formulation of the draft articles
63. According to one view, since the technical aspects
of reparation had been neglected in Part Two, it was con-         65. Strong support was expressed for the Special Rap-
sidered important to include, particularly in chapter II,         porteur’s proposal to reformulate the draft articles from
more specific and detailed articles on the forms and              the perspective of the State incurring responsibility rather
modalities of reparation, particularly compensation for           than that of the injured State since this approach was con-
lucrum cessans, and the means of calculating the amount           sistent with Part One and facilitated solving difficult
and possible interest payments. These issues were not             issues in Parts Two and Two bis.
addressed in the draft and States needed to know when
they had to make interest payments and required general
guidelines for calculating them. In contrast, the view was                    (f) The structure of the draft articles
expressed that, in terms of doctrine and in practice, the
principles relating to remedies—compensation, restitu-            66. There was broad support for the new structure pro-
tion, remoteness of damage—were necessarily deter-                posed by the Special Rapporteur in paragraph 10 of his
mined by primary rules and the Commission must be                 third report.
careful not to formulate what appeared to be general rules
when in fact it was only listing optional remedies. In other      67. It was suggested that the rules on a plurality of
words it should avoid over-elaborating on the topic. It was       States could be divided: the obligations of a plurality of
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<pre>                                                      State responsibility                                                              23
author States could be dealt with in Part Two (Legal con-         quences set forth therein, in terms of the obligations of the
sequences of an internationally wrongful act of a State)          responsible State and on the need to deal with those obli-
and the rights of a plurality of injured States could be          gations and their invocation by other States, if not in dif-
addressed in Part Two bis (The implementation of State            ferent parts, at least in different chapters, of one and the
responsibility). Alternatively, all the rules on plurality        same part. It had also become apparent that the existing
could be included in a separate chapter.                          provisions would in substance be retained, together with
                                                                  some additional elements, such as an article on interest,
68. Support was expressed for the Special Rapporteur’s            which had been proposed by the previous Special Rappor-
proposal to include a Part Two bis and to move the provi-         teur, Mr. Arangio-Ruiz, in his second report.26
sions on countermeasures from Part Two to Part Two bis
since countermeasures related to the implementation of            73. With regard to the possibility of entities other than
responsibility, not the content or forms of international         States invoking the responsibility of a State, he stressed
responsibility. It was suggested that, in accordance with         that the open conception of responsibility formulated in
Special Rapporteur Ago’s original conception of Part Two          Part One allowed for that possibility. It was clear that the
bis, it should have contained articles on diplomatic pro-         responsibility of the State to entities other than States was
tection, but they could not now be included since diplo-          part of the field of State responsibility. It did not follow
matic protection was being treated as a separate topic.           that the Commission must deal with those questions: there
Nevertheless, the Special Rapporteur was urged to                 were a number of reasons, not related to the field of State
include a “without prejudice” clause on diplomatic pro-           responsibility, why it should not do so, though it needed
tection in chapter I of Part Two bis. In contrast, the view       to spell out the fact that it was not doing so in order to
was expressed that the desirability of having a Part Two          make clear the discrepancy between the content of Part
and a Part Two bis should be re-examined once the sub-            One and that of the remaining parts. That was the purpose
stantive articles had been considered.                            of the saving clause in paragraph 3 of proposed article 40
                                                                  bis. It was not desirable to go beyond the current proposed
69. There was support for the Special Rapporteur’s pro-           scope.
posal to set aside Part Three for the time being. The link-
age between the form of the draft articles and the peaceful
settlement of disputes was said to be clearly demonstrated        4. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF PART
in paragraph 6 of the report. The view was expressed that             TWO: LEGAL CONSEQUENCES OF AN INTERNATIONALLY
nothing would be more harmful than to make substantive                WRONGFUL ACT OF A STATE
rules on State responsibility depend on the highly hypo-
thetical acceptance of compulsory dispute settlement pro-
cedures by States, as was the case with countermeasures           CHAPTER I. GENERAL PRINCIPLES
in the text adopted on first reading. In contrast, the view
was expressed that the only form the text could take was                   (a) Introductory provision on the content of
that of an international convention, which would clearly                      international responsibility (article 36)
call for a general, comprehensive system for the settle-
ment of any disputes that might arise from the interpreta-        74. The Special Rapporteur noted that no Government
tion or application of the draft as a whole. If, however, the     had questioned the necessity of the introductory provision
introduction of such a system were to prove difficult, it         on the international responsibility of States contained in
would be necessary to revert to the idea of setting up a dis-     article 36, paragraph 1.27
pute settlement procedure at least for disputes entailing
countermeasures.
                                                                    (b) The general principle of cessation (article 36 bis)
70. There was also support for the Special Rapporteur’s
proposal to include a Part Four dealing with general pro-         75. The Special Rapporteur drew attention to two issues
visions. The Special Rapporteur was right to propose              relating to the general principle of cessation, which was
including a general part containing common “without               addressed in article 36, paragraph 2, and article 41. First,
prejudice” clauses, any definitions other than that of            the obligation of cessation was the consequence of the
responsibility, and all provisions concerning more than           breach of the primary obligation and did not exist if the
one part of the draft. However, the view was also                 primary obligation ceased to exist. For example, the issue
expressed that the content of a new Part Four required            of cessation would not arise where the material breach of
more detailed analysis.                                           a bilateral treaty was invoked as a ground for its termina-
                                                                  tion. That important point needed to be made in the form
                                                                  of a saving clause. Secondly, notwithstanding the lack of
 3. SPECIAL RAPPORTEUR ’S CONCLUDING REMARKS ON THE
                DEBATE ON GENERAL ISSUES
                                                                     26
                                                                        Yearbook . . . 1989, vol. II (Part One), pp. 23–30 and 56, docu-
                                                                  ment A/CN.4/425 and Add.1.
71. As for the difficulty of establishing a distinction              27
                                                                        The text of article 36 proposed by the Special Rapporteur reads as
between primary and secondary rules, a problem several            follows:
members had raised, he considered that the Commission                        “Article 36. Content of international responsibility
had no choice but to adhere to its original decision and                “The international responsibility of a State which arises from an
maintain that distinction.                                           internationally wrongful act in accordance with the provisions of
                                                                     Part One entails legal consequences as set out in this Part.”
72. He noted that there was general agreement on the              For the analysis of this article by the Special Rapporteur, see para-
strategy of formulating Part Two, or at least the conse-          graphs 17 and 18 of his third report.
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<pre>24                               Report of the International Law Commission on the work of its fifty-second session
criticism by States of cessation (art. 41), some authors                     (d) The general principle of reparation (article 37 bis
argued that cessation was the consequence of the primary                                 and article 42, paragraphs 3 and 4)
obligation, not a secondary consequence of a breach, and
therefore did not belong in the draft. As explained in para-
graph 50 of his report, the Special Rapporteur believed                    78. The Special Rapporteur drew attention to two prob-
that the draft should address the notion of cessation                      lems with the existing draft. First, the general principle of
because it arose only after and as a consequence of a                      reparation was formulated throughout the draft articles as
breach; it was related to other secondary consequences of                  a right of the injured State and yet the concept of the
the breach, for example countermeasures; and it was the                    injured State was introduced in the middle of the logical
primary concern in most State responsibility cases as indi-                construct without any consequent reasoning, rather than
cated by the importance, for example, of declarations                      at the beginning, as suggested by France,29 or at the end,
aimed at the cessation of the wrongful act and restoration                 as proposed by Special Rapporteur Ago.30 In other words
of the legal relationship impaired by the breach.                          the draft articles switched in mid-stream between formu-
                                                                           lations in terms of the responsible State to formulations in
76. The Special Rapporteur proposed addressing the                         terms of the injured State. Secondly, the identification of
general principle of cessation in a single revised article 36              the rights of an injured State implied that that injured State
bis28 which took into account the fact that the question of                was the only State involved, which in effect “bilateral-
cessation could arise only if the primary obligation con-                  ized” multilateral legal relations by attributing the rights
tinued in force and formulated the obligation by reference                 singularly to individual States. This produced an intolera-
to the concept of the continuing wrongful act retained in                  ble situation with respect to responsibility vis-à-vis sev-
Part One of the draft. In terms of its placement, the gen-                 eral States or the international community as a whole. The
eral principle of cessation should logically come before                   Special Rapporteur proposed addressing these problems
reparation since there would be cases in which a breach                    by formulating the general principle of reparation as an
was drawn to the attention of the responsible State, which                 obligation of the State committing the internationally
would immediately cease the conduct and the matter                         wrongful act to make reparation, in an appropriate form,
would go no further.                                                       for the consequences of that act, and addressing the ques-
                                                                           tion of who could invoke the responsibility of that State
                                                                           and in what form either in a later section of Part Two or in
       (c) Assurances and guarantees of non-repetition                     Part Two bis.
                      (article 36 bis (continued))
                                                                           79. In addition, the Special Rapporteur drew attention
77. The Special Rapporteur drew attention to the two-                      to three problems that arose with regard to giving effect to
fold consequences of an internationally wrongful act: the                  the general principle of reparation already contained in
future-oriented consequences of cessation and assurances                   the formulation of a right of an injured State in article 42,
and guarantees against non-repetition, assuming that the                   paragraph 1. First, the Special Rapporteur believed that a
obligation continued, and the past-oriented consequence                    State was responsible for the direct or proximate conse-
of reparation, i.e. undoing the damage that the breach had                 quences of its conduct notwithstanding the presence of
caused. This coherent approach to the question suggested                   concurrent causes and disagreed with the commentary to
that assurances and guarantees should be addressed with                    article 42 in this respect. He proposed simple language in
cessation in a single article as two conditions for ensuring               the draft article to achieve that end, bearing in mind that
that the legal relationship impaired by the breach had been                the problem of remote or indirect damage could only be
restored: first, the breach stopped, and second, if appro-                 resolved by the application of the particular rules to the
priate, there were guarantees that it would not be repeated.               particular facts and that different legal systems had differ-
Noting that sufficient assurances and guarantees could                     ent ways of addressing this problem. Secondly, the Spe-
range from extraordinarily rigorous arrangements to mere                   cial Rapporteur noted that article 42, paragraph 3, had
promises or undertakings in different cases, the Special                   been strongly criticized by certain Governments. The
Rapporteur saw no alternative but to use the somewhat                      basic principle, as stated in the Chorzów Factory case,31
imprecise term “appropriate” and to incorporate the                        was that the responsible State should make reparation for
phrase “to offer appropriate assurances and guarantees of                  the consequences of its wrongful act, and provided that
non-repetition” to provide the necessary degree of                         there was some concept of “direct and not too remote”
flexibility.                                                               causation implied in that wording, there was no reason to
                                                                           fear that the requirement to do so would deprive that State
                                                                           of its own means of subsistence. The form that reparation
    28
       The text of article 36 bis proposed by the Special Rapporteur reads might take, its timing and questions of modalities might
 as follows:                                                               well be affected by the position of the responsible State.
                          “Article 36 bis. Cessation                       Moreover, in extreme instances, as in the Russian Indem-
       “1. The legal consequences of an internationally wrongful act       nity case,32 a State might have to defer compensation until
    under these articles do not affect the continued duty of the State
    concerned to perform the international obligation.
       “2. The State which has committed an internationally wrongful          29
    act is under an obligation:                                                  See footnote 19 above.
                                                                              30
       “(a) Where it is engaged in a continuing wrongful act, to cease           Second report (Yearbook . . . 1970, vol. II, p. 192, document A/
    that act forthwith;                                                    CN.4/233).
                                                                              31
       “(b) To offer appropriate assurance and guarantees of non-                Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J.,
    repetition.”                                                           Series A, No. 9.
                                                                              32
 For the analysis of this article by the Special Rapporteur, see                 Decision of 11 November 1912 (Russia v. Turkey) (UNRIAA,
 paragraphs 44 to 52 of his third report.                                  vol. XI (Sales No. 61.V.4), pp. 421 et seq.).
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<pre>                                                                    State responsibility                                                    25
it was in a position to make such payments. But except for                      articles 37 and 39 which could be placed in a general Part
the fiasco of reparations payments at the end of the First                      Four.
World War, there was no history that called for a limit of
the kind in question. For those reasons, he proposed delet-
ing article 42, paragraph 3, and dealing with the problems                                 5. SUMMARY OF THE DEBATE ON PART TWO
raised in the context of the specific forms of reparation in
chapter II. Thirdly, the Special Rapporteur proposed the
deletion of article 42, paragraph 4, since this principle was                   CHAPTER I. GENERAL PRINCIPLES
already stated in article 4. He therefore proposed that the
general principle of reparation set forth in article 37 bis be                             (a) Introductory provision on the content
incorporated in Part Two, chapter I.33                                                     of international responsibility (article 36)
                                                                                82. There was broad support for the proposed reformu-
(e) Other legal consequences under customary interna-                           lation of article 36 which was described as correctly refer-
                 tional law (article 38)                                        ring to international responsibility entailing legal conse-
                                                                                quences. However, the view was also expressed that the
                                                                                text of article 36 raised the same problem as the title of
80. The Special Rapporteur doubted the need for arti-                           Part Two since Part Two bis also addressed the conse-
cle 3834 for two reasons. First, the lex specialis principle                    quences of an internationally wrongful act. There was
provided that specific rules of treaty law or of customary                      also some dissatisfaction with the title of article 36 which
international law governed the consequences in a specific                       was said not to reflect the content of the provision itself.
case of a breach. Secondly, the Commission had not iden-                        It was also proposed that in the French text, the words est
tified other general consequences of a breach under inter-                      engagée par un fait should be replaced by the words est
national law that were not set out in Part Two. The com-                        engagée à raison d’un fait, as the responsibility of a State
mentary identified two consequences of a wrongful act,                          could not arise from the act itself.
but neither had any bearing on the subject of responsibil-
ity. If the Commission could pinpoint other consequences
within the field of State responsibility, then it should try                      (b) The general principle of cessation (article 36 bis)
to indicate what they were. The only case for retaining
article 38 was the general principle of law embodied in                         83. There was support for article 36 bis proposed by the
the maxim ex injuria ius non oritur, which held that, when                      Special Rapporteur, particularly for the reason stated in
a State had committed a wrongful act, it could not rely on                      paragraph 50 of his report. There was also support for a
that act to extricate itself from a particular situation. The                   single provision linking the related concepts of cessation
Court had cited that principle in the Gabcíkovo-
                                                                ^
                                                                                and assurances and guarantees of non-repetition. How-
Nagymaros Project case35 in drawing particular conse-                           ever, the view was also expressed that those three con-
quences within the framework of the termination of trea-                        cepts, although similar in some respects, were distinct and
ties rather than responsibility, but legal obligations might                    should be dealt with in separate articles.
conceivably arise in specific contexts because of the gen-
erating effect of the principle ex injuria ius non oritur.                      84. It was suggested that the title of the proposed new
                                                                                article 36 bis should read “Cessation and non-repetition”
81. In terms of its placement, the Special Rapporteur                           because cessation and assurances or guarantees of non-
believed that, if it was retained, article 38 should remain                     repetition were two different concepts. The title of article
in Part Two because it was concerned with other conse-                          36 bis was also considered unsatisfactory because it failed
quences of a breach in contrast to the saving clauses in                        to refer to the continuing validity of the obligation
                                                                                breached.
   33
      The text of article 37 bis proposed by the Special Rapporteur reads       85. As regards paragraph 1, it was considered important
as follows:
                                                                                to reaffirm that the primary international obligation,
                        “Article 37 bis. Reparation                             although breached, continued to be in force and must be
      “1. A State which has committed an internationally wrongful               performed by the State in question.
   act is under an obligation to make full reparation for the
   consequences flowing from that act.
                                                                                86. Regarding paragraph 2 (a), it was suggested that it
      “2. Full reparation shall eliminate the consequences of the               should emphasize the linkage to primary obligations
   internationally wrongful act by way of restitution in kind,
   compensation and satisfaction, either singly or in combination, in           rather than the continuation of the consequences of
   accordance with the provisions of the following articles.”                   wrongfulness, along the lines of article 36 proposed by
For the analysis of this article by the Special Rapporteur, see                 France.36 It was also suggested that the text should avoid
paragraphs 23 to 43 of his third report.                                        any reference to “cessation of a continuing wrongful act”
   34
      The text of article 38 proposed by the Special Rapporteur reads as        because, not only was the concept of a continuing wrong-
follows:                                                                        ful act in itself difficult to pinpoint and use, but the obli-
  “Article 38. Other consequences of an internationally wrongful act            gation of cessation also applied when there was a series of
      “The applicable rules of international law shall continue to              instantaneous acts. The Special Rapporteur agreed that
   govern the legal consequences of an internationally wrongful act of          the notion was not exclusively linked to that of a continu-
   a State not set out in the provisions of this Part.”                         ing wrongful act, since there could be a pattern of individ-
For the analysis of this article by the Special Rapporteur, see                 ual breaches which were not continuing breaches, but
paragraphs 60 to 65 of his third report.
   35     ^
      Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
                                                                                  36
I.C.J. Reports 1997, p. 7.                                                             See footnote 19 above.
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<pre>26                            Report of the International Law Commission on the work of its fifty-second session
were a continuation of the pattern. This nonetheless called            tice, for example, by the sending State to the receiving
for cessation and, possibly, for assurances and guarantees             State concerning the security of diplomatic premises.
of non-repetition.
                                                                       90. The view was expressed that in a situation where a
                                                                       domestic law obliged State organs to act in a way contrary
       (c) Assurances and guarantees of non-repetition                 to international law, it was the application of that law, not
                   (article 36 bis (continued))                        the law itself, that was a breach of international law.
                                                                       Assurances and guarantees of non-repetition could consti-
87. There was support for including a provision on the                 tute a means of obliging a State to bring its conduct into
duty to provide assurances and guarantees of non-repeti-               conformity with international law, e.g. by repealing or
tion in the draft because there were cases in which there              amending the law in question. However, it was also noted
was a real danger of a pattern of repetition and countries             that the adoption of a law could engage State responsibil-
could not simply apologize each time. While recognizing                ity: for instance, a law organizing genocide, or a law
that they would not be possible in every case, the view                empowering the police to commit torture. The view was
was expressed that it was necessary to provide for appro-              also expressed that assurances and guarantees of non-rep-
priate assurances and guarantees of non-repetition. For                etition were needed in cases in which the legislation of a
example, a guarantee of non-repetition would be particu-               State and its application led to grave violations which,
larly necessary in the case of a breach committed by                   although not continuing, were recurrent. The Special
recourse to force to reassure the victim of the breach.                Rapporteur noted that this was a very delicate subject
From a legal standpoint, the fact that such a guarantee had            because it concerned the relationship between interna-
been given would be a new undertaking over and above                   tional and internal law. In general, the mere existence in
the initial undertaking that had been breached. It was                 internal law of provisions which might be capable in cer-
pointed out that such a guarantee could take a number of               tain circumstances of producing a breach was not per se a
forms such as a declaration before the court, which might              breach of international law, since, inter alia, such a text
or might not be included in the court’s ruling, or a diplo-            could be implemented in a way consistent with interna-
matic declaration, which would not necessarily be made                 tional law.
during the proceedings. The report was considered to
demonstrate a reasonable basis in State practice for                   91. Regarding the formulation of paragraph 2 (b), it was
including assurances and guarantees of non-repetition in               suggested that the appropriateness and applicability of
article 36 bis. Attention was also drawn to certain mea-               assurances and guarantees of non-repetition varied
sures contained in peace treaties signed after the Second              greatly with the particular context and, therefore, the pro-
World War and to the more recent WTO Panel decision on                 vision had to be worded in very flexible and general
section 301 of the United States Trade Act of 1974.37                  terms. Support was also expressed for recognizing the
                                                                       limited application of the provision by replacing “where
88. Others questioned the necessity of retaining a provi-              appropriate” with “if circumstances so require”, as pro-
sion on appropriate assurances and guarantees of non-rep-              posed by the Czech Republic in the Sixth Committee. It
etition. While recognizing that in daily diplomatic prac-              was also suggested that assurances and guarantees of non-
tice Governments often provided such assurances, it was                repetition should be a function of two parameters: the
considered questionable whether that kind of statement                 seriousness of the breach and the probability of repetition.
given as a political or moral commitment could be                      The Special Rapporteur endorsed the position that it
regarded as a legal consequence of responsibility. It was              would be useful to clarify the notion of assurances and
therefore suggested that the provision had no legal signif-            guarantees of non-repetition and to refer in the commen-
icance and might be deleted. Some members were also of                 tary to the question of the gravity of the breach and the
the opinion that little support existed in State practice for          risk of repetition.
embodying the idea in a concrete legal formulation. It was
pointed out that there were no examples of cases in which
the courts had given assurances and guarantees of non-                   (d) The general principle of reparation (article 37 bis
repetition. The actual place of assurances and guarantees                          and article 42, paragraphs 3 and 4)
of non-repetition in the current practice of States was
questioned since they seemed directly inherited from                   92. Support was expressed for article 37 bis proposed
nineteenth-century diplomacy.                                          by the Special Rapporteur.
89. The Special Rapporteur said that in the nineteenth                 93. It was suggested that the question of reparation was
century there had been instances in which demands for                  related to the intention underlying the wrongful act since
ironclad guarantees and assurances had been made in                    a State committing the violation could not incur the same
coercive terms and enforced coercively. Nevertheless,                  degree of responsibility for a wrongful act that was inten-
there were modern examples of guarantees and assur-                    tional as for one that resulted from pure negligence. Sup-
ances supplied in the form of a declaration before a court             port was expressed for taking account of the element of
and of demands therefor submitted without coercion.                    intention in article 37 bis.
Moreover, as even critics of the notion admitted, assur-
ances and guarantees were frequently given in State prac-              94. Referring to paragraph 1, the view was expressed
                                                                       that it was not logical to speak in Part Two of the conse-
                                                                       quences of an internationally wrongful act; this conse-
    37
       See WTO, report of the Panel on United States—Sections 301–310  quence was the responsibility itself. Part Two dealt with
 of the Trade Act of 1974 (document WT/DS152/R of 22 December          consequences arising from responsibility. It was sug-
 1999); reproduced in ILM, vol. 39 (March 2000), p. 452.               gested that this paragraph be reformulated along the lines
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<pre>                                                       State responsibility                                                       27
of “A State responsible for an internationally wrongful act        98. As regards paragraph 2, there were different views
is under an obligation to make full reparation for the con-        as to whether a priority should be established with respect
sequences flowing from that act.” It was similarly sug-            to the forms of reparation set forth therein. Some mem-
gested that this paragraph should read “An internationally         bers expressed concern that the draft placed restitution in
responsible State is under an obligation to make full rep-         kind on the same level as other forms of reparation,
aration for the consequences of the internationally wrong-         namely, compensation and satisfaction. Attention was
ful act that it has committed.”                                    drawn to the Chorzów Factory case giving priority to res-
                                                                   titution as the best means of reparation in that it restored
95. The view was expressed that the reference to “full             as far as possible the situation that had existed before the
reparation” in paragraph 1 was questionable for the fol-           breach.39 In contrast, the view was expressed that restitu-
lowing reasons: the goal was not full reparation, but as           tion was not a general consequence of a wrongful act but
much reparation as possible to remedy the consequences             rather an optional remedy whose applicability depended
of the wrongful act; full reparation was possible only in          on the primary rules, i.e. the precise legal context, which
                                                                   would determine whether compensation or restitution was
the case of straightforward commercial contracts where
                                                                   the appropriate remedy. The Special Rapporteur noted
damages were quantifiable; the requirement to make rep-
                                                                   that article 37 bis was neutral on the choice between res-
aration could be continuously modified by the circum-              titution and compensation, whereas article 43, as it stood,
stances of the case and by the failure of the affected party       established restitution as the primary remedy. He would
to take appropriate measures to mitigate damages, as was           return to that question when dealing with article 43.
illustrated by the Zafiro case;38 and the responsible State’s
ability to pay must be taken into account and a State must         99. As to paragraph 2, a concern was raised that
not be beggared. Responding to the notion that mitigation,         although full reparation might eliminate the legal conse-
if not performed, logically led to a decrease in the repara-       quences of the internationally wrongful act, its material or
tion, the view was expressed that, in fact, mitigation led to      factual consequences might persist, as reparation did not
a decrease in the damage for which the reparation was              in every case seek to eliminate the consequences of the
paid. It was further stated that the fact that it was hard to      act, but was sometimes intended to compensate for them.
quantify reparation in a given case did not mean that the          It was therefore suggested that the words “eliminate the
rules were invalid. It was also considered unwise to aban-         consequences” should be amended. However, the pro-
don the concept of full reparation since it had not been           posal to replace “eliminate” by a different expression was
criticized by Governments and the Commission should                considered unsatisfactory since it was a question of elim-
focus less on the situation of the wrongdoing State than on        inating the consequences of the wrongful act and not the
the injury suffered by a State as a result of the wrongful         act itself, which clearly could not be undone, and the new
act of another State.                                              formula would no longer convey the original meaning.
                                                                   100. There were different views as to whether article
96. The words “flowing from that act” in article 37 bis,           42, paragraph 3, which stipulated that reparation must not
paragraph 1, were interpreted as an attempt to introduce           result in depriving the population of a State of its own
the causal link between an act and damage or harm with-            means of subsistence, should be retained with respect to
out actually mentioning damage or harm. However, the               reparation in article 37 bis. Some members favoured
word “flowing” was considered somewhat unclear, and a              retaining this provision as of critical importance for
preference was expressed for the wording “reparation for           developing countries. It was noted that article 37 bis did
all the consequences of that wrongful act”.                        not include the provision of article 42, paragraph 3, which
                                                                   Governments had objected to since it could be abused by
97. The view was expressed that the obligation of repa-            States to avoid their legal obligations and erode the prin-
ration did not extend to indirect or remote results flowing        ciple of full reparation. At the same time, it was felt that
from a breach, as distinct from those flowing directly or          the provision had its validity in international law, with
immediately. It was further stated that the customary              attention being drawn to the influence of the case of the
requirement of a sufficient causal link between conduct            war reparations demanded from Germany after the First
and harm should apply to compensation as well as to the            World War on the Treaty of Peace with Japan. Attention
principle of reparation. Similarly, the view was expressed         was also drawn to national legislation concerning mea-
that only direct or proximate consequences and not all             sures of constraint which exempted from attachment
consequences of an infringement should give rise to full           items that were required for livelihood. It was suggested
reparation. With regard to the direct nature of the damage,        that the matter could be solved by resorting to circum-
the chain of causality, or “transitivity”, must be direct and      stances precluding wrongfulness, as suggested in para-
uninterrupted, whereas the cause might not be immediate.           graph 41 of the report. It was also noted that the State
It was suggested that sooner or later the Commission               Treaty for the Re-establishment of an Independent and
would have to make a general study of causation. The               Democratic Austria contained a similar provision on pro-
Special Rapporteur noted that the application of the con-          tection of the means of survival. The question was raised
cept of “remote damage” depended on the particular legal           as to whether the case cited concerning Japan could be
context and on the facts themselves. He also noted agree-          covered by article 33 on state of necessity. However, arti-
ment on the need to reflect on the topic of directness or          cle 33 was described as insufficient because it dealt with
proximity in the context of article 37 bis.                        the problem of precluding the wrongfulness of the act,
   38                                                                 39
      D. Earnshaw and Others (Great Britain) v. United States            Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J.,
(UNRIAA, vol. VI (Sales No. 1955.V.3), p. 160).                    Series A, No. 17, at p. 47.
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<pre>28                        Report of the International Law Commission on the work of its fifty-second session
whereas article 42, paragraph 3, was addressing not                for by customary law and including a saving clause to
wrongfulness, but the humanitarian aspect associated               cover anything that might have been overlooked. In addi-
with forgiveness of debt and the re-establishment of peace         tion, there were suggestions that such a saving clause
after conflict. It was suggested that the provision could          could be modelled on article 73 of the 1969 Vienna Con-
not be applied to reparation in full, but might apply to           vention or that this article could be referred to in the com-
compensation. It was also suggested that the issue should          mentary. It was further suggested that a reference could be
be reconsidered in connection with countermeasures.                made in Part Four or in some part dealing with the rules
                                                                   of law relating specifically to the consequences of the
101. The Special Rapporteur did not think that the pro-            wrongful act (lex specialis) to those consequences that
vision was covered by either necessity or distress which           were not part of the law of State responsibility, such as the
were grounds for postponing the payment of compensa-               right to terminate a treaty that had been materially
tion rather than grounds for annulling obligations. What           breached or the case of a State occupying a territory by
had happened in the Treaty of Peace with Japan was that            force not being entitled to prerogatives implied by posses-
the Allied Powers, for a variety of reasons, including the         sion of a territory. In addition, it was also suggested that
realization that terrible mistakes had been made at the end        the contents of articles 37 (lex specialis) and 38 should be
of the First World War, had decided not to insist on repa-         combined in one provision.
rations at all. In a sense, it had been an act of generosity,
which had since been repaid a thousandfold. But it was             105. Some members questioned the placement of article
also an indication that there was no point in insisting on         38 in Part Two which limited its application. There were
reparation if it simply beggared the State which had to pay        a number of suggestions on this point as well, including:
it. Such extreme situations posed a problem that was not           referring in article 38 to Parts One and Two; including it
addressed by circumstances precluding wrongfulness.                in the part on general provisions to indicate its applicabil-
The problem facing the Commission was that the wording             ity to the draft as a whole; or including it in the preamble
in article 42, paragraph 3, which had been taken from              as in other conventions. There were different views
human rights treaties, was there to express that concern in        regarding the suggestion to include the provision in a pre-
extreme cases. On the other hand, it had been criticized by        amble with concerns being raised that the draft articles
a number of Governments from various parts of the world            might not take the form of a convention and that such a
as being open to abuse. The Commission accepted, espe-             provision could raise questions concerning the articles.
cially in the context of countermeasures but even in that
of the quantum of reparation, that problems could arise            106. The Special Rapporteur said that there seemed to
and could not all be covered merely by a requirement of            be general support for the retention of article 38 in some
directness. The Drafting Committee would need to con-              form. It would be a matter for the Drafting Committee to
sider whether there was some way of reflecting that con-           decide whether it was placed in Part Two or in Part Four.
cern. The Special Rapporteur also agreed that the Com-
mission should review the limitation referred to in
article 42, paragraph 3, when it studied countermeasures.                6. SPECIAL RAPPORTEUR ’S CONCLUDING REMARKS
                                                                                               ON CHAPTER I
102. Regarding article 42, paragraph 4, this provision
was described as redundant because of article 4, para-
graph 1. In contrast, the view was expressed that article 4        107. In summing up the debate on articles 36, 36 bis, 37
did not cover the cases referred to in article 42, para-           bis and 38, the Special Rapporteur noted that the Com-
graph 4, and it would therefore be wise to keep the latter         mission had made good progress on many issues,
provision or broaden the scope of article 4.                       although there were still a number of outstanding ques-
                                                                   tions on which a final decision would be taken during the
                                                                   consideration of other aspects of his third report.
      (e) Other legal consequences under customary
                international law (article 38)                     108. Turning to the various articles he had proposed, he
                                                                   noted that there had been a helpful debate on the language
                                                                   of the title of Part Two and also on the titles of the various
103. Some members believed that article 38 should be               articles. It was now for the Drafting Committee to con-
retained. It was suggested that the scope should not be            sider all the proposals that had been made as to the form.
limited to the rules of customary international law since          There seemed to be general agreement that the four arti-
rules from other sources might also be relevant. However,          cles should be referred to the Drafting Committee and that
other members agreed with the Special Rapporteur that              they should be retained somewhere in the draft. In that
article 38 added nothing of substance and could therefore          connection, he had been persuaded of the need to retain
be deleted.                                                        article 38, either in Part Four or in the preamble, in the
                                                                   light of the proposals to be made by the Drafting
104. There were a number of suggestions concerning                 Committee.
this provision. It was suggested that the title might be
improved by replacing conséquences diverses with autres            109. Similarly, there was general agreement that ar-
conséquences because even the consequences referred to             ticles 36 bis and 37 bis should contain general statements
previously were included in conséquences diverses. It              of principle on cessation and reparation, respectively, so
was also suggested that the provision might be recast in           as to establish a balance in chapter I. Useful comments
positive terms, indicating by way of example some of the           had been made as to the form, including emphasis with
legal consequences that had not been dealt with, rather            regard to article 36 bis, that the question of cessation and
than attempting to cover all the consequences provided             particularly that of assurances and guarantees of non-
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<pre>                                                               State responsibility                                                     29
repetition arose not only in the context of continued                      rightly been pointed out that it was impossible to elimi-
wrongful acts, but also in the context of a series of acts                 nate completely the consequences of an internationally
apprehended as likely to continue, even though each of                     wrongful act. Furthermore, in its judgment in the
them could be viewed individually. It would be for the                     Chorzów Factory case, PCIJ had indicated that reparation
Drafting Committee to decide whether the reference to                      should eliminate the consequences of the wrongful act “as
continuing wrongful acts in article 36 bis, paragraph 2 (a),               far as possible”.42 It might be a question for the Drafting
was necessary.                                                             Committee to consider whether that phrase should be
                                                                           included so as to qualify the term “full reparation” or
110. As paragraph 2 (b) concerned assurances and guar-                     whether the question should be dealt with in the commen-
antees of non-repetition, the title of the article as adopted              tary.
on first reading, “Cessation”, should perhaps be amended.
Different views had been expressed on the retention of                     112. There had been general agreement that a notion of
that subparagraph; however, it was clear from the debate                   causation was implied in the concept of reparation and
that most members of the Commission favoured its reten-                    ought consequently to be expressed. There again, it
tion. It should be borne in mind that no Government had                    would be for the Drafting Committee to decide whether
proposed the deletion of article 46, as adopted on first                   the notion was correctly formulated in paragraph 1 of
reading, although there had been proposals that it should                  article 37 bis.
be relocated. Replying to comments that there appeared to
be no examples of guarantees of non-repetition ordered                     113. There was a fairly strong consensus in favour of
by the courts, he said it was true that there were very few                the retention of article 38, but some difference of opinion
such examples; on the other hand they were common in                       as to its precise location in the text. The Drafting Commit-
diplomatic practice. He noted, however, that the award                     tee might consider whether it should be incorporated in
made by the Secretary-General in the “Rainbow Warrior”                     the proposed Part Four.
case40 included certain elements that might be conceived
of as falling within the category of assurances and guar-
antees of non-repetition. As noted previously, the draft                   7. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF THE
articles operated primarily in the area of relations between                   RIGHT OF A STATE TO INVOKE THE RESPONSIBILITY OF
States, although it was the courts that might eventually                       ANOTHER STATE (ARTICLE 40 BIS)
have to apply them if the problem could not be resolved
diplomatically. It was certainly true that assurances and
guarantees of non-repetition were frequently given by                      114. The Special Rapporteur noted that article 40 was
Governments in response to breaches of an obligation,                      problematic in a number of respects. In the case of several
and not only continuing breaches. The Drafting Commit-                     injured States, it failed to recognize the right of every such
tee might wish to reformulate the subparagraph, incorpo-                   State to demand cessation, and to distinguish between
rating the proposal by the Czech Republic41 referred to in                 rights concerning cessation and reparation with respect to
paragraph 56 of the third report, perhaps mentioning the                   such States, which might be very differently affected by
gravity of the wrongful conduct and the likelihood of its                  the breach, materially or otherwise. Its drafting identified
repetition and drawing on the corresponding article                        examples rather than concepts, leading to confusion and
adopted on first reading.                                                  overlap. In particular in the field of multilateral obliga-
                                                                           tions, it dealt with a whole series of concepts without dis-
111. Article 37 bis had raised several difficulties, partic-               tinguishing them, notably paragraph 2, subparagraphs (e)
ularly with regard to the expression “full reparation”. The                and (f), and paragraph 3, or indicating their interrelation-
retention of the phrase had been questioned. As it had                     ship. He noted that the provisions of paragraph 3 were
appeared in the original text of the article and had not                   redundant in the context of article 40, because in the event
been criticized to any significant extent by Governments,                  of an international crime, as defined, other paragraphs of
it would be preferable to retain it. It must, however, be                  article 40 would have already been satisfied. Aspects of
borne in mind that there was a problem of balance. In                      the problem currently addressed by articles 19 and 51 to
questioning the retention of the provision, the remarks                    53 would need to be resolved in later provisions.
had focused almost entirely on the concerns of the respon-                 115. The Special Rapporteur identified two possible
sible State, but, as had been pointed out, the Commission                  approaches to article 40: either to provide a simple defini-
must also consider the concerns of the State that was the                  tion which in effect referred to the primary rules or the
victim of the internationally wrongful act. It was true that               general operation of international law to resolve issues
there were extreme cases in which the responsible State                    relating to the identification of persons (this would be a
could be beggared by the requirement of full reparation.                   rather extreme but defensible version of the distinction
Safeguard measures might thus be needed to cope with                       between primary and secondary rules); or to specify more
that situation, without prejudice to the principle of full                 precisely how responsibility worked in the context of
reparation. As to the words “eliminate the consequences”,                  injuries to a plurality of States or to the international com-
which appeared in article 37 bis, paragraph 2, it had                      munity as a whole. He proposed the first approach for
                                                                           bilateral obligations, by simply stating in a single provi-
   40                                                                      sion that, for the purposes of the draft articles, a State was
      Case concerning the difference between New Zealand and France
concerning the interpretation or application of two agreements con-        injured by an internationally wrongful act of another State
cluded on 9 July 1986 between the two States and which related to the      if the obligation breached was owed to it individually. The
problems arising from the Rainbow Warrior affair, decision of 30 April
1990 (UNRIAA, vol. XX (Sales No.E/F.93.V.3), p. 215).
   41                                                                         42
      See footnote 19 above.                                                     See footnote 39 above.
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<pre>30                              Report of the International Law Commission on the work of its fifty-second session
elaborate provisions in article 40, paragraph 2, subpara-                  8. SUMMARY OF THE DEBATE ON THE RIGHT OF A STATE TO
graphs (a), (b), (c) and (d), would be unnecessary since                       INVOKE THE RESPONSIBILITY OF ANOTHER STATE (ARTI-
international law would say when bilateral obligations                         CLE 40 BIS)
existed. In contrast, he proposed a more refined and artic-
ulated solution for multilateral obligations, where the real
problem was not so much obligations towards several                                                (a) General remarks
States, but a single obligation vis-à-vis a group of States,
all States or the international community as a whole.                      119. There was broad agreement that article 40, as
                                                                           adopted on first reading, was defective in a number of
116. The Special Rapporteur noted the relatively recent                    respects, as noted by the Special Rapporteur in paragraph
development of categories of obligations that were in                      96 of his report and as shown in the summary of debate on
some sense owed to a group of States and the breach of                     that article in the Sixth Committee.45
which resulted in not merely bilateral consequences,
referring, inter alia, to the Barcelona Traction case.43 He                120. Several members welcomed the Special Rappor-
suggested that there was authority for adopting three dis-                 teur’s proposal for article 40 bis as a major improvement
tinct categories of multilateral obligations: first a single               in several respects, including the following: the distinc-
obligation owed to the international community as a                        tion between the different types of obligations for the pur-
whole, erga omnes; second, obligations owed to all the                     pose of identifying the injured State and the recognition of
parties to a particular regime, erga omnes partes; and                     a greater diversity of international obligations, notably
third, obligations owed to some or many States, where                      obligations erga omnes; the distinction between injured
particular States were nonetheless recognized as having a                  States and States with a legal interest in the performance
legal interest. The Special Rapporteur emphasized the                      of an obligation; and the emphasis on the right of a State
need to distinguish between different States affected in                   to invoke the responsibility of another State, focusing on
different ways by a breach in the field of State responsi-                 the problems of States’ entitlement to invoke responsibil-
bility, as discussed in paragraphs 108 et seq. of his third                ity in respect of multilateral obligations and on the extent
report. He also drew attention to the question of which                    to which differently affected States might invoke the legal
responses by “injured States” might be permissible: this                   consequences of a State’s responsibility. At the same time,
was addressed in table 2 in paragraph 116 of his report.                   a number of members were of the view that various
                                                                           aspects of the proposal needed to be further clarified or
117. As to the reformulation of article 40, the Commis-                    developed, as indicated below.
sion should draw on article 60 of the 1969 Vienna Con-
vention which distinguished between cases where a par-                     (i) Definition of an injured State
ticular State party was specially affected by a breach and
those where the material breach of “integral obligations”
by one party radically changed the position of every party                 121. The view was expressed that the draft articles
with respect to performance. A second aspect of the for-                   should include a definition of the injured State. It was
mulation of article 40 concerned the situation where all of                pointed out that many Governments had mentioned the
the States parties to an obligation were recognized as hav-                importance of such a provision which would help to strike
ing a legal interest. The Special Rapporteur saw no reason                 an appropriate balance between the concepts of “injured
for requiring an express stipulation to that effect, nor for               State”, “wrongdoing State” and State with a “legal inter-
limiting it to multilateral treaties, as in article 40 adopted             est”. However, the view was also expressed that drafting
on first reading.                                                          a comprehensive definition of the “injured State” raised
                                                                           major difficulties because the subject matter was
118. The Special Rapporteur proposed article 40 bis44                      extremely technical and complex and could not simply be
and suggested that it would be logical to include this pro-                based on customary law. An inclusive definition should
vision in a new part concerning the invocation of respon-                  thus be preferred, although one which followed the gen-
sibility.                                                                  eral line proposed by the Special Rapporteur rather than
                                                                           that adopted on first reading.
    43
       Barcelona Traction, Light and Power Company, Limited, Second
 Phase, Judgment, I.C.J. Reports 1970, p. 3.
    44
                                                                           (ii) Obligations erga omnes
       The text of article 40 bis proposed by the Special Rapporteur reads
 as follows:
                 “Article 40 bis. Right of a State to invoke               122. The view was expressed that the category of obli-
                     the responsibility of another State                   gations erga omnes should be reserved for fundamental
       “1. For the purposes of these draft articles, a State is injured by human rights deriving from general international law and
    the internationally wrongful act of another State if:                  not just from a particular treaty regime, in accordance
       “(a) The obligation breached is owed to it individually, or
       “(b) The obligation in question is owed to the international com-
    munity as a whole (erga omnes), or to a group of States of which it          “(b) The obligation is established for the protection of the
    is one, and the breach of the obligation:                                 collective interests of a group of States, including that State.
       i“(i) Specifically affects that State; or                                 “3. This article is without prejudice to any rights, arising from
                                                                              the commission of an internationally wrongful act by a State, which
       “(ii) Necessarily affects the enjoyment of its rights or the           accrue directly to any person or entity other than a State.”
             performance of its obligations.
                                                                           For the analysis of this article by the Special Rapporteur, see
       “2. In addition, for the purposes of these draft articles, a State  paragraphs 66 to 118 of his third report.
    has a legal interest in the performance of an international obligation    45
    to which it is a party if:                                                   See “Topical summary, prepared by the Secretariat, of the discus-
       “(a) The obligation is owed to the international community as a     sion in the Sixth Committee on the report of the Commission during the
    whole (erga omnes);                                                    fifty-fourth session of the General Assembly” (A/CN.4/504), sect. A.
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<pre>                                                      State responsibility                                                      31
with the judgment of ICJ in the Barcelona Traction                tional law with the right to invoke the responsibility of a
case.46 However, the view was also expressed that obliga-         State which had breached its international obligations.
tions erga omnes could not necessarily be equated with
fundamental obligations, peremptory norms or jus                  127. The Special Rapporteur noted that the concept of
cogens. In addition, some members expressed concern               “obligations owed to the international community as a
about any attempt to draw a distinction between funda-            whole” had been introduced by ICJ. It was true that the
mental human rights and other human rights: any distinc-          concept was still developing, but it was widely accepted
tion would be difficult to apply in practice and would go         in the literature and could hardly be dispensed with.
against the current trend towards a unified approach to           Moreover, in Parts Two and Two bis, the Commission was
human rights. It was suggested that in order to define the        not concerned with the invocation of responsibility by
concept of injured State in respect of human rights, a            entities other than States, and the draft articles should
quantitative criterion might be added, as opposed to the          make that clear. But in fact it was the case that victims of
qualitative criterion used to distinguish between funda-          human rights abuses had certain procedures available to
mental and other rights, so as not to call the unity of           them for what could only be described as the invocation
human rights into question. It was also suggested that a          of responsibility, and in some circumstances others could
distinction must be made between obligations owed indi-           act on their behalf. A saving clause acknowledging that
vidually to all States making up the international commu-         possibility should be inserted, and the matter left to devel-
nity and those owed to that community as a whole.                 opments under the relevant instruments.
                                                                  (iv) The question of article 19
123. The Special Rapporteur agreed on the need to be
careful not to assert that all human rights were necessarily
obligations erga omnes, and cited the example of human            128. Several members expressed the view that the Com-
rights under regional agreements and even some provi-             mission would eventually need to consider the issues
sions in the “universal” human rights treaties.                   addressed in article 40 bis in relation to State “crimes”. It
                                                                  was suggested that international crimes should constitute
                                                                  a separate category under this article. It was also sug-
(iii) The reference to the international community                gested that paragraph 1 (b) should specify that an interna-
                                                                  tionally wrongful act by a State could injure “all States if
124. The reference to the international community in              the obligation breached is essential for the protection of
paragraphs 1 and 2 of article 40 bis gave rise to various         fundamental interests of the international community”;
comments and questions. A question was raised concern-            this could be based on the definition contained in article
ing the meaning of the term “international community as           19 as adopted on first reading, perhaps with some refine-
a whole” and whether it included individuals and                  ment. It was further suggested that all States should be
non-governmental organizations. It was hoped that the             entitled to invoke responsibility in respect of all its conse-
Commission would refrain from including private entities          quences, except perhaps that of compensation in cases of
such as non-governmental organizations among the sub-             such serious breaches. Of particular importance was the
jects of law legally entitled to invoke State responsibility.     principle of restitution in the form of a return to the status
The view was expressed that “international community as           quo ante. The obligations provided for in article 53 as
a whole” meant the international community of States as           adopted on first reading would become far more compre-
referred to in article 53 of the 1969 Vienna Convention.          hensible if the concept of “injured State” was applied to
Other members considered that the “international com-             all States of the international community in cases of
munity as a whole” was a wider concept.                           crime. Others, however, pointed out that to allow individ-
                                                                  ual States to respond separately and in different ways to a
                                                                  “crime” was a recipe for anarchy, and that in such cases
125. It was suggested that the difficulties the Commis-
                                                                  only collective responses were appropriate. Some mem-
sion was encountering were partly explained by the fact
                                                                  bers were of the view that in addressing this question it
that it was discussing the international community and the        was not necessary or desirable to use the term “crime” or
obligations owed to it, while ignoring the existing institu-
                                                                  any other qualitative distinction among wrongful acts.
tions of the international community as such in the draft.
Consequently, the Commission should consider including
a provision entitled “Responsibility of the State in respect      (v) The structure of article 40 bis
of the international community”, the text of which would
read: “In the case of a breach of an obligation erga omnes        129. In terms of the structure of article 40 bis, there
the State bears responsibility towards the international          were various suggestions for dividing the provision into
community of States represented by the universal interna-         several separate articles in the interest of clarity. In partic-
tional organs and organizations.”                                 ular, it was suggested that dividing it into two articles, one
                                                                  focusing on the State injured by an internationally wrong-
126. It was also considered difficult to see how the rules        ful act of another State and the other on the State which
of State responsibility could be applied in practice, given       had a legal interest in the performance of an international
such a loose and theoretical characterization of the              obligation without having been directly injured, would
affected group. It was also seriously doubted that the            make it possible to formulate more clearly the conditions
international community had become a subject of interna-          for, and the extent of, the right of a State to invoke the
                                                                  responsibility of another State.
                                                                  130. It was also suggested that article 40 bis should be
   46
      See footnote 43 above.                                      divided according to the type of obligation: with the first
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<pre>32                        Report of the International Law Commission on the work of its fifty-second session
part dealing with bilateral or multilateral obligations            expressed that it was unnecessary to include damage; its
which, in a specific context, gave rise to bilateral rela-         exclusion as an element of the wrongful act did not lead
tions; and the second part dealing with obligations erga           to the result that all States could invoke the responsibility
omnes and saying that, in the event of the infringement of         of the responsible State. On the contrary: only the State
those obligations, all States were entitled to request cessa-      whose subjective right had been injured or in respect of
tion and seek assurances and guarantees of non-repetition.         which an obligation had been breached could demand
It was further suggested that the Commission should con-           reparation. The view was also expressed that injury or
sider whether those States might request reparation, with          damage should not be included as a constituent element of
the proviso that compensation was to be given to the ulti-         an internationally wrongful act or in article 40 bis, which
mate beneficiary, which might be another State, an indi-           triggered the invocation of State responsibility, because
vidual or even the international community as a whole. It          the concept would have to be broadened to a degree that
was noted that the Commission did not have to determine            rendered it meaningless, and it was virtually impossible to
the beneficiary since that was a matter for the primary            “calibrate” it according to the proximity of a State to a
rules.                                                             breach.
(vi) The placement of article 40 bis                               135. In contrast, some members considered it necessary
                                                                   to have a provision equivalent to article 3 of Part One,
                                                                   which might read along the lines of “An internationally
131. There were different views concerning the place-              wrongful act incurs an obligation to make reparation
ment of article 40 bis including the following: it should          when (a) that internationally wrongful act has caused
appear in chapter I of Part Two to identify the categories         injury, (b) to another subject of international law.” The
of States to which obligations arising from a wrongful act         concept of damage was also considered indispensable by
were owed; it should be placed in chapter I of Part Two if         some members if the essential distinction was to be drawn
the Commission intended to specify the secondary obliga-           between a State suffering direct injury on the basis of
tions without referring to the concept of “injured State”; it      which it could invoke article 37 bis, and one that, in the
should be placed in the chapter on general principles if it        framework of erga omnes obligations or as a member of
differentiated between two groups of injured States; or it         the international community, merely had a legal interest in
should appear at the beginning of Part Two bis, concern-           cessation of the internationally wrongful act. There were
ing the implementation of State responsibility, if its role        suggestions that it would be preferable to refer to injury or
was to determine which States had the right to invoke the          damage only in connection with reparation (since repara-
responsibility of a State that had allegedly committed an          tion presupposed damage), as compared with the issue of
internationally wrongful act.                                      entitlement to act, e.g. by demanding cessation. It was
                                                                   also suggested that it would be useful to define the con-
                  (b) Title of article 40 bis                      cept of damage, preferably in the draft articles.
                                                                   136. The Special Rapporteur said that the proposal that
132. Some members expressed the view that the title of             a provision on damage should be drafted as a counterpart
article 40 bis did not fully correspond to its content. More-      to article 3 of Part One deserved careful study. That con-
over there was no logical link between the first two para-         cept had to be dealt with in Part Two of the draft articles
graphs, which dealt successively with the definition of the        in a variety of contexts, for example, compensation, to
injured State and conditions in which a State has a legal          which it was unquestionably related. In terms of a defini-
interest in the performance of an international obligation.        tion of damage, it was first what was suffered by a State
The proposed title of article 40 bis should be retained but        party to a bilateral obligation which was breached; sec-
its content should be revised accordingly.                         ondly, what was suffered by the State specially affected;
                                                                   and, thirdly, what was suffered by the State affected just
              (c) Paragraph 1 of article 40 bis                    by virtue of the fact that it was a party to an integral obli-
                                                                   gation, breach of which was calculated to affect all States.
133. There were various proposals concerning this
paragraph. It was suggested that paragraph 1 should be             (i) Paragraph 1 (a)
amended to clarify the distinction between injured States
and States having a legal interest without being directly          137. The view was expressed that the treatment of bilat-
injured to enable the article to play its role in determining      eral obligations was a relatively simple matter, and
who could trigger the consequences of responsibility. It           seemed to be adequately reflected in paragraph 1 (a) of
was also suggested that the concepts of the injured State          article 40 bis.
and the State having a legal interest should be defined
before the question of the implementation of international
                                                                   (ii) Paragraph 1 (b)
responsibility was discussed and that the proposed list of
cases in which a State suffered an injury should be
open-ended, since it could be difficult to envisage all            138. The view was expressed that the provision should
cases in which a State could be injured by an internation-         be further clarified with respect to the three categories of
ally wrongful act attributable to another State.                   multilateral obligations referred to in table 1 of the report,
                                                                   namely: obligations to the international community as a
134. There were different views concerning the inclu-              whole (erga omnes); obligations owed to all the parties to
sion of the notion of damage or injury in article 40 bis,          a particular regime (erga omnes partes); and the obliga-
paragraph 1, or elsewhere in the draft. The view was               tions to which some or many States were parties, but in
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<pre>                                                       State responsibility                                                    33
respect of which particular States or groups of States were        human rights context. However, this paragraph was also
recognized as having a legal interest.                             considered unnecessary by some, since the Commission
                                                                   was dealing with the responsibility of States and not rights
139. It was suggested that paragraph 1 (b) could be                that accrued to any other subject of international law. The
deleted altogether, since all the cases it envisaged had to        reference to rights that accrued directly to any person or
do with obligations owed to States individually as well as         “entity other than a State” was described as a very broad
to the international community as a whole, and were                and even dangerous notion. However, it was also noted
therefore covered by paragraph 1 (a). Under paragraph 1            that the term “entity” was already used in various interna-
(b) (i), an obligation erga omnes the breach of which spe-         tional conventions, such as the Convention on Biological
cially affected one State was an obligation also owed to           Diversity.
that State individually. An obligation erga omnes could be
broken down into obligations owed by one State to other            144. It was suggested that since Part One of the draft
States individually. The same was true for paragraph 1 (b)         was acknowledged to cover all international obligations
(ii): an obligation erga omnes whose non-performance               of the State and not only those owed to other States, it
necessarily affected a State’s enjoyment of its rights or          might therefore serve as a legal basis when other subjects
performance of its obligations was, at the same time,              of international law, such as international organizations,
owed to the State individually. On the other hand it was           initiated action against States and raised issues of interna-
pointed out that even with respect to a breach of an obli-         tional responsibility. In contrast, it was considered prefer-
gation erga omnes, an individual State could be injured            able to restrict the subject matter of Part Two to responsi-
(e.g. the victim of an unlawful armed attack).                     bility as between States because the emergence of
                                                                   different kinds of responsibilities with specific features,
                                                                   such as the responsibility of and to international organiza-
              (d) Paragraph 2 of article 40 bis                    tions, individual responsibility and responsibility for vio-
                                                                   lations of human rights, could not be dealt with compre-
140. The view was expressed that paragraph 2 met the               hensively in the foreseeable future. The Special
need for a reference to States which had a legal interest.         Rapporteur agreed with the distinction between the scope
Such States, although not directly affected, could at least        of Part One and of Part Two, and noted that his para-
call for cessation of a breach by another State. In agreeing       graph 3 was merely a saving clause consequential upon
with the Special Rapporteur’s approach, attention was              the point that Parts Two and Two bis dealt only with the
drawn to table 2 of the third report, concerning the rights        invocation of responsibility by States.
of States that were not directly injured by a breach of an
obligation erga omnes. This was interpreted as meaning             145. There were also suggestions that paragraph 3
that any State could act on behalf of the victim and had a         should be a separate provision and should be amended by
whole range of remedies, including countermeasures, in             replacing “without prejudice to any rights, arising …” by
cases of well-attested gross breaches.                             “without prejudice to the consequences flowing from the
                                                                   commission of an internationally wrongful act”, for the
141. It was suggested that it was important to distin-             consequences of responsibility were not only rights, but
guish between the existence of an obligation and the ben-          also obligations.
eficiary of the obligation. The right to invoke, in the sense
of the right to claim that a certain obligation must be ful-       146. The Special Rapporteur stressed the need for para-
filled, should be given to all the States that had a legal         graph 3 with respect to human rights obligations. This
interest, albeit not for their own benefit; this was particu-      paragraph was necessary to avoid a disparity between Part
larly important in the context of human rights obligations         One, which dealt with all obligations of States, and Part
infringed by a State with regard to its nationals, which           Two bis, which dealt with the invocation of the responsi-
otherwise could not be invoked by any other State.                 bility of a State by another State. Since it was possible for
                                                                   a State’s responsibility to be invoked by entities other than
142. In terms of drafting, the inclusion of the words “to          States, it was necessary to include that possibility in the
which it is a party” was questioned. It was also suggested         draft. It was important to retain the principle in article 40
that paragraph 2 might begin with the following words:             bis or a separate article.
“In addition, for the purposes of these draft articles, a
State may invoke certain consequences of internationally
wrongful acts in accordance with the following articles”,          9. SPECIAL RAPPORTEUR ’S      CONCLUDING REMARKS ON THE
after which paragraph 2, subparagraphs (a) and (b), as                 DEBATE ON THE RIGHT OF A STATE TO INVOKE THE RE-
proposed by the Special Rapporteur would follow.                       SPONSIBILITY OF ANOTHER STATE (ARTICLE 40 BIS)
              (e) Paragraph 3 of article 40 bis                    147. The Special Rapporteur noted that the deficiencies
                                                                   of article 40 as adopted on first reading had been gener-
143. There were different views concerning para-                   ally recognized. His proposed treatment of bilateral obli-
graph 3. Some members felt that it was necessary to                gations in a single, simple phrase had been endorsed.
include such a provision since the draft articles were to          However, two approaches had been suggested for multi-
apply to inter-State relations. But, in practice, there were       lateral obligations. The first, reflected in his proposal,
quite a few cases of the international responsibility of           sought to provide additional clarification and further
States vis-à-vis international organizations or other sub-         specification in the field of multilateral obligations. The
jects of international law. The provision was considered to        second approach entailed a series of definitions on
be particularly important with regard to individuals in the        the specification of States that were entitled to invoke
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<pre>34                       Report of the International Law Commission on the work of its fifty-second session
responsibility without actually saying what they were.            reparation from the point of view of the obligation of the
The second approach should be used as a fall-back if              State which had committed the internationally wrongful
greater clarity could not be achieved with regard to multi-       act. In the text adopted on first reading, in addition to
lateral obligations. If a general renvoi was adopted, the         assurances and guarantees against repetition, three forms
Commission would disbar itself from making any further            of reparation had been envisaged, namely, restitution in
distinctions between categories of injured States.                kind, compensation, and satisfaction. The provisions of
                                                                  article 42, paragraph 2, on contributory fault and mitiga-
148. The Commission’s precise concern was to identify             tion of responsibility, as adopted on first reading, also
those States which ought to be able to invoke the respon-         belonged in chapter II rather than in chapter I, as restric-
sibility of another State, and the extent to which they           tions on the forms of reparation. He further proposed add-
could do so. In that respect he stressed the value of article     ing a new article on interest and deleting the reference to
60, paragraph 2, of the 1969 Vienna Convention. The               it in article 44. The Special Rapporteur noted that States
Commission, in the context of the law of treaties, had dis-       had accepted the idea that restitution, compensation and
tinguished between bilateral and multilateral treaties, and       satisfaction were three distinct forms of reparation and
had emphasized that the State specially affected by a             had generally agreed with the position taken as to the rela-
breach of a multilateral treaty should be able to invoke          tionship between them.
that breach. An analogy could be drawn for obligations in
the field of State responsibility. The reference to “spe-
cially affected State”, reflected in article 40 bis, helped to                        (b) Restitution (article 43)
deal with the problem of harm raised by some members,
because the State that was injured must surely be regarded        152. Turning first to article 43, the Special Rapporteur
as being in a special position. There might be a spectrum         preferred to use the term “restitution” rather than “restitu-
of specially affected States, but if so it was a relatively       tion in kind” in the English version in order to avoid any
narrow one.                                                       misunderstanding, while using restitution en nature in the
                                                                  French version. As to substance, article 43 asserted the
149. Regarding the “article 19 issue”, the Special Rap-           priority of restitution. Restitution was the primary form of
porteur fully respected the wish of some members that the         reparation, with compensation available where restitution
draft should address the most important obligations, those        did not fully make good the injury. Otherwise, States
of concern to the international community as a whole, and         would be able to avoid performing their international
the most serious breaches of such obligations. He also            obligations by offering payment. But there were four
agreed that there could be breaches of non-derogable obli-        exceptions to the availability of restitution, and these
gations which did not raise fundamental questions of con-         raised a number of questions. He proposed retaining two
cern to the international community as a whole in terms of        of these exceptions.48 The first exception, dealing with
collective response. But, in terms of the right to invoke         material impossibility, was universally accepted and
responsibility, it was not necessary to refer to grave            should be retained. The second exception, dealing with
breaches of obligations owed to the international commu-          peremptory norms, had been criticized on various
nity as a whole. Once it was established, as ICJ had done         grounds and should be deleted: this situation, if it ever
in the Barcelona Traction case,47 that all States had an          arose, would be adequately covered by chapter V of Part
interest in compliance with those obligations, no more            One which, in his view, applied to Part Two. The third
need be said for the purposes of article 40 bis.                  exception, dealing with disproportionality of burden and
                                                                  benefit, also should be retained. The fourth exception,
150. There had been some disagreement about the res-              dealing with catastrophic situations, had been criticized
ervation concerning the invocation of responsibility by           by many Governments: the situation, if it ever arose,
entities other than States as set out in article 40 bis, para-    would be adequately covered by subparagraph (c), so that
graph 3, but the prevailing view seemed to be that it was         subparagraph (d) could be deleted.
of value. The Special Rapporteur thought it essential,
because it resolved the difference in scope between Part
One of the draft and the remaining parts.                                           (c) Compensation (article 44)
                                                                  153. The Special Rapporteur said that there was no
10. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF PART                doubt that compensation should cover any economically
    TWO: LEGAL CONSEQUENCES OF AN INTERNATIONALLY
    WRONGFUL ACT OF A STATE (continued)
                                                                     48
                                                                        The text of article 43 proposed by the Special Rapporteur reads as
                                                                  follows:
CHAPTER II.     THE FORMS OF REPARATION                                                     “Article 43. Restitution
                                                                        “A State which has committed an internationally wrongful act is
                                                                     obliged to make restitution, that is, to re-establish the situation
            (a) General comments on chapter II                       which existed before the wrongful act was committed, provided and
                                                                     to the extent that restitution:
                                                                        “(a) Is not materially impossible;
151. The Special Rapporteur noted that, in accordance
                                                                         …
with the approach already agreed by the Commission,
                                                                        “(c) Would not involve a burden out of all proportion to the
chapter II of Part Two dealt with the different forms of             benefit which those injured by the act would gain from obtaining
                                                                     restitution instead of compensation.”
                                                                  For the analysis of this article by the Special Rapporteur, see
   47
      Ibid.                                                       paragraphs 124 to 146 of his third report.
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<pre>                                                                 State responsibility                                                  35
assessable damage sustained by the injured State.                            full reparation” in paragraph 1 indicated that there might
Although some States had suggested a more detailed def-                      be circumstances in which no question of satisfaction
inition of compensation and its quantification, caution                      arose.
was needed in elaborating more detailed principles of
compensation, which was a dynamic concept strongly                           155. As to paragraph 2, there was doubt whether it was
influenced by the particular primary rules in play in a                      intended to be exhaustive, but in the view of the Special
given context. He preferred a general formulation accom-                     Rapporteur it should not be. A significant gap was the
panied by further guidance in the commentary, to avoid                       absence of any reference to the declaration which was one
limiting the development of the law on the subject. For                      of the main forms of satisfaction and well-established in
these reasons he proposed a simplified version of arti-                      judicial practice. Since the draft articles were intended to
cle 44, with the commentary explaining that lost profits                     apply directly to State-to-State relations, he proposed
could be compensable, depending on the content of the                        including the notion of an acknowledgement by the
primary rule in question and the circumstances of the par-                   responsible State as the equivalent, in terms of
ticular case, and with interest being addressed in a sepa-                   State-to-State conduct, of a declaration granted by a tribu-
rate article.49                                                              nal. He further proposed listing it as the first and most
                                                                             obvious form of satisfaction. The commentary would
                                                                             explain that, where a State declined to acknowledge that
                   (d) Satisfaction (article 45)                             it had committed a breach, the corresponding remedy
                                                                             obtained in any subsequent third-party proceedings would
154. Despite an underlying core of agreement, article                        be a declaration.
45, as adopted on first reading, gave rise to a number of
difficulties. As regards paragraph 1, the association of sat-                156. Paragraph 2 (a) referred to apology, which was fre-
isfaction with moral damage was problematic for two rea-                     quently given by States in the context of wrongful con-
sons. First, the term “moral damage” had a reasonably                        duct. The Special Rapporteur proposed that an acknowl-
well-established meaning in the context of individuals,                      edgement or apology should be treated separately from
but claims for such damage on their behalf would come                        the other forms of satisfaction in a new paragraph 2, since
under the heading of compensation rather than satisfac-                      these were the minimum forms of satisfaction and the
tion. Secondly, it was awkward to speak of moral damage                      basis on which any other form of satisfaction would be
in relation to States, since this appeared to attribute emo-                 granted. The other more exceptional forms of satisfaction,
tions, affronts and dignity to them. The Special Rappor-                     which might be appropriate in certain cases, would be
teur proposed replacing the term “moral injury” by the                       contained in new paragraph 3.
term “non-material injury” (préjudice immatériel),
thereby avoiding confusion with moral damage to indi-                        157. Referring to the other forms of satisfaction, the
viduals and the use of emotive language for States.50 He                     Special Rapporteur proposed deleting nominal damages
noted that the words “to the extent necessary to provide                     in paragraph 2 (b) adopted on first reading since the rea-
                                                                             sons for such damages in national legal systems were
                                                                             inapplicable in international litigation and the declaratory
   49
      The text of article 44 proposed by the Special Rapporteur reads as     remedy was almost always sufficient. He noted that nom-
follows:                                                                     inal damages would not be precluded in appropriate cases
                       “Article 44. Compensation                             if the paragraph contained a non-exhaustive list of the
      “A State which has committed an internationally wrongful act is        forms of satisfaction.
   obliged to compensate for any economically assessable damage
   caused thereby, to the extent that such damage is not made good by
   restitution.”                                                             158. As regards paragraph 2 (c) adopted on first read-
For the analysis of this article by the Special Rapporteur, see              ing, the Special Rapporteur recommended that this simply
paragraphs 147 to 166 of his third report.                                   provide for the award of damages by way of satisfaction,
   50
      The text of article 45 proposed by the Special Rapporteur reads        where appropriate. The words “in cases of gross infringe-
as follows:                                                                  ment” unduly limited the normal function of satisfaction
                         “Article 45. Satisfaction                           in respect of injuries which could not be qualified as
      “1. The State which has committed an internationally wrongful
                                                                             “gross” or “egregious”; such a limitation was contrary to
   act is obliged to offer satisfaction for any non-material injury          the relevant jurisprudence. In his view, the award of sub-
   occasioned by that act.                                                   stantial (and not merely nominal) damages in appropriate
      “2. In the first place, satisfaction should take the form of an        cases was an aspect of satisfaction. On the other hand,
   acknowledgement of the breach, accompanied, as appropriate, by an         paragraph 2 (c) did not include punitive damages, a sub-
   expression of regret or a formal apology.                                 ject that would be taken up later in the context of a possi-
      “3. In addition, where circumstances so require, satisfaction          ble category of “egregious breach”. If awards of punitive
   may take such additional forms as are appropriate to ensure full
   reparation, including, inter alia:                                        damages were to be allowed at all, special conditions
      “[(a) nominal damages;]                                                needed to be attached to them.
      “(b) damages reflecting the gravity of the injury;
                                                                             159. The fourth form of satisfaction in paragraph 2 (d)
      “(c) where the breach arose from the serious misconduct of
   officials or from the criminal conduct of any person, disciplinary or
                                                                             adopted on first reading dealt with disciplinary action or
   penal action against those responsible.                                   punishment of the persons responsible, who might be offi-
      “4. Satisfaction must be proportionate to the injury in question       cials or private individuals. The Special Rapporteur pro-
   and should not take a form humiliating to the responsible State.”         posed deleting the reference to “punishment” which
For the analysis of this article by the Special Rapporteur, see              implied individual guilt, a matter which could only be
paragraphs 167 to 194 of his third report.                                   determined in the proceedings and which could not be
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<pre>36                           Report of the International Law Commission on the work of its fifty-second session
presumed. Again it was not necessary to cover all possible                  163. Subparagraph (a) of his proposal52 dealt with the
types of procedures (e.g. inquiry) if the paragraph was                     case in which an injured State, or a person on behalf of
understood to be non-exhaustive.                                            whom a State was claiming, contributed to the loss by
                                                                            negligence or wilful act or omission, for which various
160. The issue of limitations on satisfaction was                           terms such as “contributory negligence” and “compara-
dealt with in paragraph 3 adopted on first reading. The                     tive fault” were used by different legal systems. There
Special Rapporteur noted that some States had pro-                          was well-established jurisprudence that the fault of the
posed deleting the term “dignity” as meaningless and                        victim, where the victim was an individual, could be taken
as allowing for satisfaction to be evaded. He felt how-                     into account in the context of reparation. In his view, con-
ever, in light of the earlier history of abuses, that some                  siderations of equity required that the principle be
guarantee was required: he proposed a provision                             extended to injured States, to avoid a responsible State
excluding any form of satisfaction that was dispropor-                      being required to pay for damage or loss suffered by rea-
tionate to the injury or that took a form humiliating to                    son of the conduct of the injured State.
the responsible State.
                                                                            164. The Special Rapporteur also observed that a fur-
                                                                            ther concern was ensuring that injured States not be over-
                   (e) Interest (article 45 bis)                            compensated for loss. He therefore proposed a new provi-
                                                                            sion, as subparagraph (b), dealing with mitigation of
                                                                            damage, based on the formulation of that principle by ICJ
161. The Special Rapporteur proposed including an                           in the Gabcíkovo-Nagymaros Project case.53 Mitigation
                                                                                           ^
article dealing with the general question of entitlement to                 of damage related to the attenuation of the primary
interest, based on the proposition that where a principal                   amount, and prevented a State that unreasonably refused
sum owed had not been paid, interest was due on that sum                    to mitigate damage from recovering all of its losses.
until such time as it was paid.51 In terms of the starting
date for payment of interest, the question was whether the
compensation should have been paid immediately upon
                                                                            11. SUMMARY        OF THE DEBATE ON        PART TWO (continued)
the cause of action arising, within a reasonable time after
a demand had been made or at some other time. The ter-
minal date for payment of interest would be that on which                   CHAPTER II. THE         FORMS OF REPARATION
the obligation to pay had been satisfied, whether by
waiver or otherwise. He had used the wording “Unless
otherwise agreed or decided”, in paragraph 2, because                                     (a) General comments on chapter II
States could agree that there should be no award of inter-
est and also because tribunals had in some cases exercised                  165. Agreement was expressed with the general
some flexibility about interest that was inconsistent with                  approach of the Special Rapporteur to chapter II. The
the idea that there was a simple right to interest covering                 Special Rapporteur had been right to avoid excessive
any fixed period. He believed that the provision should                     detail which could create new areas of conflict among
neither mandate nor rule out the possibility of compound                    States, even if the wrongdoing State had already acknowl-
interest; in the light of the limited international jurispru-               edged responsibility. On the other hand, certain doubts
dence on the point, it was too much to say that compound                    were expressed, not only about the changes proposed by
interest was available as of course, but neither could it be                the Special Rapporteur, but also about the approach
excluded in appropriate cases where this was necessary to                   adopted, which was considered superficial and insuffi-
provide full reparation.                                                    cient, having regard to the practical importance of com-
                                                                            pensation and the guidance currently offered by decisions
                                                                            of courts and tribunals.
      (f) Mitigation of responsibility (article 46 bis)
                                                                            166. As to the proposed new emphasis on the obligation
                                                                            imposed on the responsible State, the view was expressed
162. The Special Rapporteur recalled that, except for                       that in Part Two the Commission would have to go
the situation of contributory fault, the question of the                    beyond a statement of principles, and therefore it would
mitigation of responsibility had not been covered in the                    have been better to recognize the injured State as the
draft articles adopted on first reading.
                                                                               52
                                                                                  The text of article 46 bis proposed by the Special Rapporteur reads
                                                                            as follows:
   51                                                                                     “Article 46 bis. Mitigation of responsibility
      The text of article 45 bis proposed by the Special Rapporteur reads
as follows:                                                                       “In determining the form and extent of reparation, account shall
                        “Article 45 bis. Interest                             be taken of:
     “1. Interest on any principal sum payable under these draft                  “(a) The negligence or the wilful act or omission of any State,
  articles shall also be payable when necessary in order to ensure full       person or entity on whose behalf the claim is brought and which
  reparation. The interest rate and mode of calculation shall be those        contributed to the damage;
  most suitable to achieve that result.                                           “(b) Whether the injured party has taken measures reasonably
     “2. Unless otherwise agreed or decided, interest runs from the           available to it to mitigate the damage.”
  date when the principal sum should have been paid until the date the      For the analysis of this article by the Special Rapporteur, see
  obligation to pay compensation is satisfied.”                             paragraphs 215 to 222 of his third report.
                                                                              53      ^
For the analysis of this article by the Special Rapporteur, see                  Gabcíkovo-Nagymaros Project (see footnote 35 above), at p. 55,
paragraphs 195 to 214 of his third report.                                  para. 80.
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<pre>                                                       State responsibility                                                  37
driving force behind reparation. Others noted that the             171. In addition, if the practical importance of the pri-
rights of the injured State would be separately covered, so        mary rules was recognized, there would be no need to
that nothing was lost by the change in terminology, while          determine whether or not restitution was the generally
the text gained in its capacity to deal with claims brought        applicable form of reparation. As such, it was considered
by “differently injured” States.                                   preferable to give priority to the decisions of tribunals,
                                                                   although caution was advised since the applicable law
167. In support of the latter view, the Special Rappor-            was not always clearly stated in those decisions. Simi-
teur explained that the articles were formulated in terms          larly, it was suggested that the commentary could explain
of the obligation of the responsible State so as to leave          that some cases may be resolved by means of a declara-
open the question of who was entitled to invoke responsi-          tory judgement or order without giving rise to restitution
bility, which could be considered only at the time it was          as such.
invoked. Referring to the “right” or “entitlement” of the
injured State, as was done during the first reading, implied       172. The Special Rapporteur observed that there was no
a bilateral form of responsibility. Yet, in some situations,       requirement that all attempts to secure restitution be first
several States could be affected or concerned, some more           exhausted, and that in those cases in which the injured
than others. Likewise, it had to be recognized that obliga-        State had the choice to prefer compensation, the election
tions could arise towards different entities or towards the        to seek compensation rather than restitution would be
international community as a whole. The proposed draft-            legally effective. The rare cases where the injured State
ing allowed for these various possibilities.                       had no choice about restitution, i.e. where restitution was
                                                                   the only possible outcome, were better covered under the
168. Support was expressed for the Special Rappor-                 notion of cessation. There were also cases where restitu-
teur’s proposal that the title of chapter II as adopted on         tion was clearly excluded, for example, because the loss
first reading, “Rights of the injured State and obligations        has definitively occurred, and could not be reversed.
of the State which has committed an internationally                Furthermore, in some circumstances, other States would
wrongful act”, be replaced by the shorter title, “The forms        be able to invoke responsibility. Those States might sub-
of reparation”. The new title was not only shorter and sim-        stitute for the injured State, and would not be compen-
pler, but would also avoid the implication that the rights         sated themselves, but would be entitled to insist not just
of “injured States” were in all cases the strict correlative       on cessation, but on restitution as well. Support was
of the obligations of the responsible State. It was also sug-      expressed in the Commission for this view.
gested that the new title could be further refined to read
“Forms and modalities of reparation”. In response, the             173. In paragraph 142 of his third report, the Special
Special Rapporteur pointed out that a reference to                 Rapporteur had expressed the view that restitution might
“modalities” would be more a matter for Part Two bis, on           be excluded in cases where the respondent State could
the implementation of State responsibility. Instead, chap-         have lawfully achieved the same or a similar result with-
ter II of Part Two concerned itself with the basic forms of        out breaching the obligation. Some members disagreed: if
reparation, i.e. the content, so far as the responsible State      there was a lawful way to achieve a given result, the fact
was concerned, of the basic obligation to provide full             that the respondent State had not taken advantage of that
reparation set out in chapter I.                                   way did not in itself exonerate it from the obligation of
                                                                   restitution. In response, the Special Rapporteur noted that
169. Some members noted that the discussion so far                 in theory, restitution had primacy, yet in practice, it was
largely overlooked the question of State “crimes”. The             exceptional. The challenge was to reconcile theory and
Commission was reminded of its late consideration of the           practice.
matter during the first reading, which had resulted in the
inclusion in the part, referring to delicts, of consequences       174. Differing views were expressed regarding the
that should have been reserved for crimes, thereby depriv-         objective of restitution. On the one hand, it was argued
ing articles 51 to 53, on the consequences of crimes, of           that the objective was to remove the effect of the interna-
much of what might otherwise have been their substance.            tionally wrongful act, by re-establishing the status quo
The concept of crimes, according to this view, was                 ante. This was the approach of article 43 as adopted on
implied in paragraph 126 of the report, in which the Spe-          first reading. Others favoured a duty to establish the situ-
cial Rapporteur was compelled to draw a distinction                ation that would have existed without the wrongful act,
between acts contrary to an ordinary rule of international         and not the mere re-establishment of the status quo ante.
law and a breach of a peremptory norm of general inter-            It was observed that in the judgment of PCIJ in the
national law—a distinction which could constitute an               Chorzów Factory case, the formula was that “reparation
acceptable definition of “crime”.                                  must, as far as possible, wipe out all the consequences of
                                                                   the illegal act and re-establish the situation which would,
                 (b) Restitution (article 43)                      in all probability, have existed if that act had not been
                                                                   committed”.54 As such, restitutio in integrum was the pre-
                                                                   ferred reaction to an internationally wrongful act, subject
170. Different views were expressed as to the priority of          to the choice of the injured State. In response, it was sug-
restitution over compensation. That priority was criti-            gested that this approach confused restitution as a nar-
cized as being too rigid and inconsistent with the flexibil-       rower remedy implying a return to the status quo ante and
ity actually displayed by tribunals. Others suggested that         reparation which had additional elements, in particular
the fact that compensation was the most frequently used            compensation.
form of reparation, was due to the limitations inherent in
restitution, and not proof of its subsidiary role as a matter
                                                                      54
of principle.                                                            See footnote 39 above.
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<pre>38                        Report of the International Law Commission on the work of its fifty-second session
175. Different views were expressed about the Special              pretations in practice. It was adequately covered by the
Rapporteur’s proposal to delete the words “in kind” after          exception in subparagraph (c).
“restitution”. Some favoured such deletion, noting that it
solved the problem of whether reference should be made             181. It was suggested that a further exception be
to restitution in kind or restitutio in integrum. Others           included, relating to cases where restitution is prevented
thought the longer formula was established.                        by an insurmountable legal obstacle, not necessarily relat-
                                                                   ing to the violation of a peremptory norm. The case of
176. As to the drafting, it was suggested that the open-           nationalization was cited as an example. It was main-
ing phrase “A State which has committed an internation-            tained that in the light of several General Assembly reso-
ally wrongful act”, be rendered as “A State responsible for        lutions, the legality of nationalizations had been affirmed,
an internationally wrongful act”. It was also proposed that        and that a State which had carried out a nationalization
the word “obliged” be rendered as “bound”, and that it be          was not required to provide restitution. But in such cases,
explicitly provided that restitution must be made to the           issues of restitution did not arise: by definition the taking
injured State. Moreover, it was suggested that in some             itself was lawful and the question became one of payment
instances, “restoration” would be more precise than “res-          for the property taken. Where the taking was unlawful per
titution”.                                                         se, different considerations might apply.
177. The view was expressed that, since restitution was            182. Regarding subparagraph (a), it was queried
itself an obligation, the provisions of the draft articles,        whether “legal” impossibility was included in the phrase
including those dealing with circumstances precluding              “material impossibility”. This situation arose, for
wrongfulness, were applicable to it. In response, the Spe-         instance, under the primary rules of international law,
cial Rapporteur said that the effect of the circumstances          States were required to adopt certain types of legislation,
precluding unlawfulness in Part One was to suspend com-            but did not do so. There were limits to the changes that
pliance with the obligation under consideration for a              could be made under some national legal regimes. For
period of time. The courts had always made a distinction           example a contrary Supreme Court decision in a given
between the continued existence of the underlying obliga-          case could not be overturned, thus rendering restitution
tion and the exemption from performance of the obliga-             impossible.
tion at a given time. In his view, circumstances precluding
wrongfulness were generally speaking supplementary to              183. Others noted that the State was responsible for the
the exceptions given in article 43, and that the impossibil-       actions of its executive, legislative and judicial arms, and
ity of proceeding with restitution referred to a permanent         no governmental organ should be able to escape the duty
impossibility rather than a temporary one. During the sub-         to rectify any violation of international law that might
sequent debate, doubt was expressed whether the circum-            occur. Moreover, although there might be no legal remedy
stances precluding the wrongfulness of an act also applied         within the domestic system for a final judgement not sub-
to the part of the draft articles under consideration: if this     ject to appeal, reversal of the results of judgements had
was intended it should be clearly spelt out.                       occurred on issues concerning international law in vari-
                                                                   ous countries. In principle, internal law could never be a
178. The view was also expressed that interim measures             pretext for refusing restitution and thus could not consti-
of protection and similar measures were not included in            tute a case of impossibility. It was considered essential to
the classic concept of restitution, and that these should be       ensure that no margin be left for more powerful States to
distinguished from restitution in the context of the subse-        advance unilateral interpretations of “impossibility”. True
quent proceedings on the merits. The Special Rapporteur            cases of legal impossibility were very rare, and a refer-
agreed, noting however that interim remedies could be              ence to material impossibility was sufficient.
directed at cessation, though in the context of provisional
measures no decision would have been made that the act             184. The Special Rapporteur suggested, in the light of
in question was definitively unlawful.                             the debate, that the Commission needed to reconsider
                                                                   draft article 42, paragraph 3, affirming the basic principle
179. Support was expressed in the Commission for the               that a State could not rely on its domestic law as an excuse
proposed deletion of the exception contained in subpara-           for not fulfilling its international obligations. Introducing
graph (b), as adopted on first reading, relating to breaches       the phrase “legal impossibility” could amount to a revi-
of peremptory norms. It was noted that the question was            sion of that basic principle. What was true was that a
resolved by the general rules of international law, and was        change in the relevant legal position could result in actual
already covered under article 29 bis. It was, however,             impossibility, for example, property seized from one per-
noted that the draft articles needed to reflect the proposi-       son could not be restored if it had already been validly
tion that if a “crime” in the sense of article 19 had been         sold to another. The situation was more complicated
committed, or a norm of jus cogens had been violated,              where the rights of an individual were involved and inter-
restitution could not be waived by the injured State in            national law acted as a critical standard, as it did in the
favour of compensation, since the vital interests of the           human rights field.
international community as a whole were at stake in such
cases.                                                             185. Reference was further made to the decision of the
                                                                   Central American Court of Justice in the El Salvador v.
180. The proposed deletion of subparagraph (d), as                 Nicaragua case,55 mentioned in paragraph 128 (b) of the
adopted on first reading, concerning jeopardy to the po-
litical independence or economic stability of a State, also
received support.. The exception was described as being               55
                                                                         See AJIL, vol. 11 (Supplement), No. 1 (January 1917), p. 3; see
too general in character, thus risking overly broad inter-         also decision of 9 March 1917 (ibid., vol. 11, No. 3 (July 1917), p. 674).
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<pre>                                                          State responsibility                                                     39
report, where the Court had avoided addressing the nullity            internationally wrongful act—should be liable for com-
of a treaty between Nicaragua and a third State (the                  pensation; and that subject to article 45 bis, the damage
United States of America) but had not considered that res-            should be assessed on the date of commission of the inter-
titution was necessarily impossible. On the contrary, it              nationally wrongful act. Preference was also expressed
held that Nicaragua was obliged to use all means available            for dealing with the question of loss of profits in the draft
under international law to restore and maintain the situa-            articles, and not merely in the commentary. The notion of
tion which had existed before the conclusion of the treaty.           “full reparation”, endorsed by PCIJ in the Chorzów
                                                                      Factory case,57 required that loss of profits be compen-
186. With regard to subparagraph (c), while support                   sated as a general matter and not only on a case-by-case
was expressed for the provision, it was queried whether               basis.
the reference to “those injured” was to the State, as had
been the case in the version adopted on first reading, or             191. It was suggested that compensation should not go
whether it also covered individuals. A preference was                 beyond the limit of injury or damage caused by the
expressed for not making any reference to the injured                 wrongful act or conduct so that possible abuses may be
entity at all. Alternatively, it was suggested that the term          avoided. In that regard, agreement was expressed with the
“injured” be replaced with “injured State or States”.                 proposal to limit compensation by a provision such as that
                                                                      found in article 42, paragraph 3, as adopted on first read-
187. The notion of proportionality in subparagraph (c)                ing. It was noted that the question of crippling compensa-
did not only concern cost and expense but also required               tion was worth examining, since it could lead to wide-
that the gravity or otherwise of the breach be taken into             spread violations of human rights. At the same time,
account. But this could be covered either in the text or the          consideration should be given to the economic capacity of
commentary; in any event subparagraph (c) was neces-                  the State to compensate the victims of mass and system-
sary especially in the light of the proposed deletion of              atic violations of human rights.
subparagraph (d).
                                                                      192. The Special Rapporteur noted that the Commis-
                                                                      sion was faced with a choice between two solutions: it
                (c) Compensation (article 44)                         could either draft article 44 succinctly, stating a very gen-
                                                                      eral principle in flexible terms, or it could go into some
188. Strong support was expressed for the inclusion of                detail and try to be exhaustive. If the Commission opted
a concise provision on compensation.                                  for the long version, it would have to include a reference
189. It was noted that the various judicial decisions on              to loss of profits. He had deleted the reference to loss of
this issue, such as the “Rainbow Warrior” case, had pre-              profits principally because some Governments had been
scribed a certain amount of compensation without indi-                of the opinion that the version adopted on first reading
cating the precise criteria used for calculating the amount,          had been formulated in such a weak way that it had the
and that a great deal depended on the circumstances of the            effect of “decodifying” international law. Others sug-
breach and the content of the primary rule.56 In many                 gested an intermediate solution, with a concise version
instances, States reached agreement on compensation for               retaining a reference to loss of profits.
an internationally wrongful act, but on an ex gratia basis.           193. It was queried whether the word “economically”
In the context of world trade and environmental issues,               was appropriate to cover, for example, the wrongful
States had created special regimes for compensation,                  extinction of an endangered wildlife species of no eco-
which excluded the application of general principles. All             nomic use to humans. It was proposed that the word
the Commission could do was devise a flexible formula                 “financially” be used instead. It was also noted that the
leaving the development of rules on the quantification of             answer was also to be found in the meaning of “moral
compensation to be developed by tribunals and practice.               damage” in article 45. As such, it was proposed that the
190. Conversely, the view was expressed that article 44,              phrase “material” damage be used in article 44, and “non-
as proposed by the Special Rapporteur, was essentially a              material” damage in article 45. As to whether moral dam-
chapeau article retaining only the priority accorded to res-          ages belonged in article 44, the Special Rapporteur
titution. A more detailed elaboration of the principle of             recalled that the former Special Rapporteur, Mr. Arangio-
compensation was required so as to give greater guidance              Ruiz, had solved the problem by saying that the article
to States and tribunals. Furthermore, the succinct treat-             (former article 8) covered moral damage to individuals
ment of the question of compensation created the impres-              and article 45 (former article 10) covered moral damage
sion that the general principle was restitution, and nothing          to States.58 That solution had been controversial because
less, and that, in technical terms, compensation only came            the term “moral damage” could apply to things so dispar-
into play if there had not been any restitution. It was sug-          ate as the suffering of an individual subjected to torture
gested that additional determining factors be mentioned,              and an affront to a State as a result of a breach of a treaty.
including: that it should compensate both material dam-               Others suggested that the reference to “economically
age and moral damage when the moral damage was suf-                   assessable” did cover material damage, moral damage
fered by an individual; that it must compensate damnum                and loss of profits. Compensation for moral damage was
emergens and lucrum cessans at least when both were cer-              confined to the damage caused to natural persons, leaving
tain; that only “transitive” damage—that which resulted               aside the moral damage suffered by the victim State. It
from a necessary and certain link of causality with the               was pointed out that this reflected judicial practice where
   56                                                                    57
      See case concerning the difference between New Zealand and            See footnote 39 above.
France (footnote 40 above), at p. 274, paras. 126–127.                   58
                                                                            Second report (see footnote 26 above), p. 7, para. 19.
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<pre>40                            Report of the International Law Commission on the work of its fifty-second session
pecuniary compensation had been granted in order to                       tant role in determining whether compensation was justi-
compensate moral damage suffered by individuals, espe-                    fied. The different types of cases also had to be classified;
cially in cases of cruel treatment.                                       guidance was to be obtained here less from legal writing
                                                                          and more from such arbitral decisions as in the Aminoil
194. It was noted that while article 43 made reference to                 case.61 Article 44 should include a qualifier along the
“those injured”, article 44 did not state who suffered dam-               lines of “unless the primary rules indicate a different solu-
age, i.e. whether it was the State, or the real persons or                tion”. As against this it was noted that the rules stemming
entities injured, such as individuals. One reason for this                from judicial decisions and arbitral awards were applied
imprecision was that account had to be taken of the wide                  only occasionally, and that questions of State responsibil-
variety of different cases: individual claims by companies                ity were more often dealt with through direct contact
or persons before national or international courts or com-                among States or even through national courts. Such prac-
missions, claims by Governments on behalf of individuals                  tice was not necessarily reflected in arbitral awards. In
or on their own account, claims by injured States and by                  response, the Special Rapporteur pointed out that, how-
“other” States, etc.                                                      ever important the primary rules were, it was difficult to
                                                                          draw the appropriate conclusions in the drafting of the
195. Reference was made to the decision of the ICSID                      articles themselves. A discussion of the various points in
tribunal in the Klöckner case,59 where both parties were                  the commentary was more appropriate.
held to have violated the contract in question, with signif-
icant consequences in terms of reparation. The Special
Rapporteur pointed out that part of the solution was to be                                   (d) Satisfaction (article 45)
found in what was known as “set-off”, which would be a
procedural issue before a court and was not part of the law               198. There was support for the provision as proposed by
of responsibility. In fact the decision in the Klöckner case              the Special Rapporteur, which maintained elements of
had been annulled, and the case had been settled by agree-                flexibility especially through the notion of “offer”. The
ment before any further decision on compensation.                         objective was to set out a range of political options and
                                                                          entitlements open to States following the commission of
196. Reference was also made to the question of the                       an internationally wrongful act. Moreover, satisfaction
proper measure of compensation for expropriation, which                   could be either autonomous or complementary to restitu-
article 44 did not address, and which had been a source of                tion and/or compensation, and this was made clear by the
conflict between developing and developed countries.                      proposed provision.
The classic western position of “prompt, adequate and
effective compensation”60 required, inter alia, that com-                 199. Others expressed the view that article 45 was a
pensation be based on the value at the time of taking and                 hybrid provision that contained a mixture of the law relat-
that it be made in convertible currency, without restric-                 ing to the quantitative assessment of damage and mea-
tions on repatriation. However, it was noted that the for-                sures of satisfaction stricto sensu. As the latter were a
eign exchange implications of that formula could impose                   form of political punishment of States they were no longer
an embargo on any significant restructuring of the econ-                  applicable. In practice, satisfaction was an institution to
omy by a developing country that faced balance-of-                        which States rarely had recourse. It was thus queried
payments difficulties. Current international practice                     whether legal rules on satisfaction really existed, and even
revealed that considerable inroads had been made into the                 whether the wrongdoing State was under an obligation to
traditional formulation. Moreover, the General Assem-                     offer satisfaction to the injured State. Instead, the draft
bly, in paragraph 4 of its resolution 1803 (XVII), of                     articles should either omit or minimize “satisfaction” as a
14 December 1962, on permanent sovereignty over natu-                     discrete remedy and focus on the “missing” remedy of
ral resources, had prescribed the payment of “appropriate                 declaratory relief, whether by way of orders or declara-
compensation” in the event of nationalization, expropria-                 tions of rights, which was not generally accepted as a
tion or requisitioning, which was a significant departure                 diplomatic form of reparation, but which had legal
from the phrase “prompt, adequate and effective”,                         consequences.
although the Assembly had failed to define it. However, a
number of speakers stressed that this long-standing                       200. Others disagreed with the attack on satisfaction as
debate had nothing to do with the content of article 44.                  a discrete form of reparation. In their view, satisfaction
Nationalization was a lawful act, whereas article 44 dealt                was a normal form of reparation and the fact that courts
with internationally wrongful acts. The Special Rappor-                   made awards and declarations in terms of satisfaction
teur agreed and reiterated that it was not the Commis-                    bore that out. It was true that the decision of ICJ in the
sion’s function to develop the substantive distinction                    Corfu Channel case was unusual in that the respondent
between lawful and unlawful takings or to specify the                     State had not actually asked for damages; the declaration
content of any primary obligation.                                        awarded there by way of satisfaction had been all that the
                                                                          Court could do.62 But that case had led to a consistent and
197. Several members stressed that it was not enough to                   valuable practice of declarations by way of satisfaction,
accept the principle that primary rules played an impor-                  which the draft articles should recognize.
    59
       Klöckner Industrie-Anlagen GmbH and others v. Republic of
                                                                             61
 Cameroon, Award on the Merits (ICSID Reports (Cambridge Univer-                Arbitration between Kuwait and the American Independent Oil
 sity Press, Grotius, 1994), vol. 2, p. 3).                               Company (Aminoil), ILM, vol. 21, No. 5 (September 1982), p. 976.
    60                                                                       62
       See G. H. Hackworth, Digest of International Law (Washington,            Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at
 D.C., United States Government Printing Office, 1942), vol. III, p. 659. p. 35.
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<pre>                                                      State responsibility                                                    41
201. The Special Rapporteur noted that an unnecessary             and 2 be combined in order to provide a more precise
distinction between the diplomatic and legal spheres was          draft. A single paragraph could begin with the phrase,
being made. Since the Commission was concerned to                 like in the article adopted on first reading: “Satisfaction
determine the rules that were applicable to inter-State           may take one or more of the following forms”, followed
relations, the rules of responsibility could not be formu-        by a non-exhaustive list of all the forms of satisfaction,
lated in terms of the powers of courts, thus creating the         beginning with acknowledgement of the breach.
problem of “missing remedies”. His proposal distin-
guished between the “normal” method of satisfaction, i.e.         208. Concern was also expressed that the proposed
the acknowledgement that a breach existed, and the forms          paragraph 2 downgraded the status of apologies, whereas
referred to in article 45, paragraph 3, which were excep-         on first reading apologies had figured as a self-contained
tional. The failure of such acknowledgement was the               form of satisfaction. But it was noted that there was a
basis for a declaration by a court or tribunal in any subse-      political element to apologies, since they usually resulted
quent proceedings.                                                from negotiated settlements. It was doubtful whether suf-
                                                                  ficient opinio juris existed for the recognition of apolo-
202. Regarding paragraph 1, there was agreement with              gies as a form of satisfaction.
the proposed emphasis on the obligation of the State
which had committed an internationally wrongful act to            209. In relation to paragraph 3, support was expressed
offer satisfaction. Support was also expressed for the pro-       for a non-exhaustive list of measures, as well as for the
posed substitution of the term “moral damage” by                  reference to “full reparation”. However, the phrase
“non-material injury”. The proposed change allowed for            “where circumstances so require” was considered too
a symmetrical contrast between article 44, concerning             general since States, courts and arbitrators could benefit
material injury, and article 45, concerning non-material          from knowing precisely in what cases and circumstances
injury.                                                           a particular step should be taken.
203. Conversely, the view was expressed that the pro-             210. As regards paragraph 3, subparagraph (a), a pref-
posed text was too narrow, since it limited the institution       erence was expressed for retaining a reference to nominal
of satisfaction to non-material or moral injury. The sug-         damages, which could be inserted in paragraph 2. The
gestion was made that an injured State could also enjoy a         Special Rapporteur noted that if article 45, paragraph 3,
right to satisfaction in the context of material injury. The      was inclusive then nominal damages could be subsumed
term “non-material injury” omitted the crucial point that         under subparagraph (b) relating to damages reflecting the
the purpose of satisfaction was to repair the moral dam-          gravity of the injury.
age suffered by the State itself.                                 211. Concerning subparagraph (b), it was observed that
204. It was noted that, whereas the wrongdoing State              satisfaction could also be accompanied or preceded by
was “obliged to make restitution” and “obliged to com-            the payment of damages, even if there was no material
pensate” in articles 43 and 44, respectively, under arti-         damage; a possibility implied by the term “full repara-
cle 45, it was obliged simply to “offer” satisfaction,            tion”. Conversely, it was stated that the text incorrectly
reflecting the perception that satisfaction could not be          implied that such damages were a component of full rep-
defined in the abstract. But others thought this introduced       aration, and were necessary in order to eliminate all the
an unsatisfactory form of subjectivity: whether an offer          consequences of the wrongful act. The concept of dam-
of satisfaction was adequate in terms of the standard of          ages in article 45 overlapped with article 44. Hence para-
full reparation could be judged, in essentially the same          graph 3 (b) could be moved to article 44, or to a specific
way as the adequacy of an offer of compensation.                  provision on damages.
205. As to acknowledgement of the breach, the view                212. The view was expressed that damages on a more
was expressed that expressions of regret or formal apol-          than nominal scale were conceivable only in cases of
ogy might imply such an acknowledgement and thus ren-             “gross infringement” of a rule of fundamental impor-
der it unnecessary.                                               tance, not only for the injured State, but also for the inter-
                                                                  national community as a whole, i.e. that of State
206. There was support for mentioning acknowledge-                “crimes”. As such, the provision should be transferred to
ment of the breach first, as proposed by the Special Rap-         the chapter on the consequences of crimes. A preference
porteur, and which conformed with the approach in the             was further expressed for restricting the scope of dam-
Corfu Channel case. Conversely, it was queried whether            ages to cases of “gross infringement of the rights of the
acknowledgement should be first, at the State-to-State            injured State”, as stipulated in paragraph 2 (c) as adopted
level, since some States offered apologies freely, without        on first reading. Conversely, it was maintained that para-
acknowledging the breach, in a manner comparable to ex            graph 3 (b) should not be restricted to crimes and should
gratia payments. In other instances, apologies were               be retained, as proposed by the Special Rapporteur. Fur-
offered to avoid any further consequences of a breach.            thermore, it was noted that the expression “gravity of the
Faced with possible or pending litigation, States would           injury” could be interpreted either to refer to the gravity
be well advised to avoid any acknowledgement, even if it          of the wrongful act or the gravity of the harm suffered.
might possibly form part of an overall settlement,
expressly or by implication.                                      213. Disagreement was expressed with the idea that
                                                                  punitive damages and moral damage should be discussed
207. The use of the phrase “as appropriate” was con-              under the heading of “Satisfaction”. Paragraph 3 (b)
sidered too imprecise, and only acceptable if the cases           could be deleted, although without prejudice to any
referred to were explained in the commentary and illus-           future consideration of the issue of punitive damages by
trated by examples. It was suggested that paragraphs 1            the Commission, for example in the context of grave
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<pre>42                          Report of the International Law Commission on the work of its fifty-second session
breaches, particularly international “crimes” contem-                should avoid humiliation: there was still a strong concern
plated by article 19, as adopted on first reading.                   about imbalances of power that had historically enabled
                                                                     powerful States to impose humiliating forms of satisfac-
214. The Special Rapporteur stressed that paragraph 3                tion on weaker States. In that regard, it was suggested that
(b) did not concern punitive damages but what were                   the word “should” be replaced by “must” or “shall”. In
referred to in some legal systems as “aggravated” or                 this regard, a reference could be included to the sovereign
“expressive” damages. As demonstrated by the “I’m                    equality of States.
Alone” case,63 in some situations it was necessary to rec-
ognize the gravity of a wrong, and those situations were
not confined to “grave breaches”.                                                      (e) Interest (article 45 bis)
215. The meaning of the expression “serious miscon-                  221. Support was expressed for the main thrust of arti-
duct”, in paragraph 3 (c), which could imply a reference             cle 45 bis, especially in the light of the cursory treatment
to negligence, was queried. It was noted that since the              given to the question of interest in the draft articles
introductory phrase to paragraph 3 restricted its scope to           adopted on first reading. However, the provision had to be
cases where “circumstances so require”, the adjective                consistent with the function of Part Two, namely to ensure
“serious” could be deleted. It was also considered neces-            that the injured State was made whole by the wrongdoing
sary to clarify that the criminal conduct of private persons         State. There was thus a close connection with article 44,
related to State responsibility only in relation to the              and the question of interest should either be addressed in
State’s breach of the duty of prevention; indeed this                the framework of article 44, possibly as a second para-
implied that the scope of the provision should be                    graph to article 44, or placed as a separate article immedi-
restricted solely to criminal acts of State agents. Any              ately after article 44, dealing only with interest due on
penal action against private individuals was nothing but             compensation payable under article 44, as well as with the
the belated performance of a primary obligation. More-               issue of loss of profits and compound interest. In the latter
over, some primary rules already required action to be               regard, the view was expressed that care had to be taken
taken against State officials in cases of misconduct; in the         to avoid double recovery. Moreover, it could not be
light of these provisions it was doubtful whether the sub-           assumed that the injured party would have earned com-
paragraph was necessary.                                             pound interest on the sums involved if the wrongful act
216. It was proposed that specific mention could be                  had not been committed. The Special Rapporteur noted
made in article 45, or in the commentary, to the holding of          that although the principal sum on which interest was pay-
an inquiry into the causes of an internationally wrongful            able would normally involve compensation under ar-
act, as a form of satisfaction. However, caution was                 ticle 44, circumstances could be envisaged where that
voiced as to conceiving inquiry as a form of satisfaction            was not the case, but interest was nonetheless payable.
per se: it was more properly considered as part of the pro-          222. It suggested that the second sentence of para-
cess leading to satisfaction.                                        graph 1 was unnecessary and should be deleted. In para-
217. According to some members, factors favouring the                graph 2, the phrase “[u]nless otherwise agreed or
retention of article 45, paragraph 2 (d), as adopted on first        decided” was likewise unnecessary since it was a precau-
reading included recent developments in the field of inter-          tion applicable to all the provisions of chapter II and
national criminal law. In this connection, it was proposed           indeed to the whole of the draft article. As regards the date
that a clause be added to the end of paragraph 3 (c) as pro-         from which interest runs, it was noted that, in practice,
posed by the Special Rapporteur requiring that the disci-            interest was payable from the date of the wrongful act, or
plinary or penal action be taken by the respondent State             from the date on which the damage had occurred or, more
itself, or that there be extradition to another State or trans-      precisely, from the date from which the compensation no
fer to an international criminal tribunal with jurisdiction          longer fully covered the damage. Article 45 bis could be
over the alleged crime.                                              reformulated accordingly. In response, the Special Rap-
                                                                     porteur noted that, in principle, the decisive date was that
218. With regard to paragraph 4, it was suggested that it            on which the damage had occurred, but that some flexibil-
be moved to either article 37 bis or into a chapeau to               ity was characteristically shown by tribunals and this
chapter II.                                                          should be reflected in the text.
219. The view was expressed that it was unnecessary to
refer to “humiliation” in article 45, since there was no                    (f) Mitigation of responsibility (article 46 bis)
need to avoid humiliating a responsible State that had
itself humiliated the injured State. The requirement of              223. Support was expressed for the inclusion of article
proportionality was sufficient. Even the act of acknowl-             46 bis, which contained elements of progressive develop-
edging the breach might be considered as humiliating by              ment. However, it was doubted whether the conditions for
certain States and therefore the rule in paragraph 4 must            mitigation of responsibility also applied to restitution. If
not be understood as applicable in extenso.                          so, the object of the restitution could be restricted since
                                                                     the wrongdoing State might have some say in deciding on
220. Conversely, a strong preference was expressed for               the extent of the restitution. It was observed that the title
retaining the reference to humiliation, since satisfaction           of the proposed draft article did not accurately reflect its
                                                                     contents.
   63
      S.S. “I’m Alone”, awards of 30 June 1933 and 5 January 1935    224. Article 46 bis, while an improvement on article 42,
 (UNRIAA, vol. III (Sales No. 1949.V.2), p. 1609).                   paragraph 2, as adopted on first reading, nonetheless
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<pre>                                                              State responsibility                                                    43
raised various concerns relating to the possible—albeit                   reading in adopting this approach, and it had not been crit-
unintended—mixing of the measure of damages with the                      icized for that by Governments.
primary rule establishing responsibility. It needed to be
made clear that the point at issue was not the primary rules              229. As to the question to whom restitution should be
but a factor that might be taken into account in determin-                made, the articles had to be drafted so that they could be
ing the magnitude of the damages owed.                                    invoked by the injured State in a bilateral context, by one
                                                                          of several States injured in a multilateral context, or
225. Concerning subparagraph (a), the view was                            indeed by States which were in the position of Ethiopia
expressed that only “gross” negligence or serious miscon-                 and Liberia in the South-West Africa cases.67 Restitution
duct could be regarded as limiting the extent of repara-                  could be sought by different States, and compensation
tion.                                                                     could be sought on behalf of a variety of interests, and this
                                                                          had to be reflected in the text.
226. In response to a question, the Special Rapporteur
indicated that subparagraph (b) was not limited to the doc-               230. As to article 44, the Special Rapporteur was pre-
trine of “clean hands”, which had been considered at the                  pared to consider a more detailed provision, on the under-
Commission’s previous session.64 He referred to the                       standing that it was essential to take account of the differ-
Gabcíkovo-Nagymaros Project case65 in which ICJ had
     ^
                                                                          ent legal relations involved, including legal relations with
recognized a “duty” to mitigate damage, i.e. in determin-                 non-State entities. A modern conception of responsibility
ing the amount of reparation it was possible to take into                 required that it be conceived of in a multi-layered manner.
account the question whether the injured State had taken
reasonable action to mitigate the damage. But reference to                231. He observed further that a majority of the Commis-
such a “duty” must not be taken to imply that if that obli-               sion had favoured the reintroduction of the reference to
gation was violated, secondary rules applied and repara-                  loss of profits. However, the difficulty with that in regard
tion had to be made. Instead, failure to mitigate would                   to article 44, as adopted on first reading, was that it decod-
lead to a limitation on recoverable damages. However, the                 ified the existing law on loss of profits. The reintroduction
view was also expressed that subparagraph (b) could cre-                  of the reference would necessitate a further article or para-
ate difficulties insofar as it would require States to take               graph. The issue could also be relevant in connection with
precautionary measures with regard to all possible kinds                  article 45 bis. His own preference was to retain the sepa-
of breaches of international law in order to obtain full rep-             rate identity of article 45 bis and not to subsume it into
aration.                                                                  article 44. Since a specific formulation on interest was
                                                                          possible, a specific treatment of loss of profits could also
                                                                          be possible.
  12.    SPECIAL RAPPORTEUR ’S    CONCLUDING REMARKS
                                                                          232. As to the question of moral damage, it was clear
                         ON CHAPTER II
                                                                          that article 44 covered moral damage to individuals,
                                                                          whereas what was called moral damage to States was
227. The Special Rapporteur agreed with the observa-                      intended to be dealt with in article 45. The use of the term
tion that the extent of the obligation of restitution (art. 43)           “moral damage” was confusing for reasons he had
depended on the primary rules at stake. There was thus a                  explained in relation to article 45. Instead, the content of
“legal” element to impossibility, but provided it was made                the provision should be made clear, and questionable
clear that article 29 bis applied to Part Two, subparagraph               terms like “moral” should be left to the commentaries.
(b) as adopted on first reading was unnecessary. Argu-
                                                                          233. Concerning article 45, the debate on the article had
ments by States that restitution was impossible for domes-
                                                                          revealed a wide divergence of views. Satisfaction was
tic legal reasons did not constitute justifications as a mat-
                                                                          well founded in doctrine and jurisprudence, and its elimi-
ter of international law, but it was clear that the primary
                                                                          nation would constitute a fundamental change. The con-
rules of international law could come into play at that
                                                                          cept of satisfaction had a hybrid function with some
stage.
                                                                          aspects being synonymous to reparation, as was the case
228. As to the question of the narrow as opposed to the                   with article 41 of the Convention for the Protection of
broad conception of restitution, he favoured the narrow                   Human Rights and Fundamental Freedoms (European
conception. The Chorzów Factory dictum66 was about                        Convention on Human Rights). The non-material aspects
reparation in the general sense, and was therefore about                  of international conflicts were frequently important and it
restitutio in integrum in the general sense; it was not about             was necessary to resolve the differences in a way that
restitution in the article 43 sense, which had already been               “satisfied” both parties. This need for an agreement in
excluded by the time PCIJ had issued its dictum because                   order for satisfaction to take place was implicit in the use
it had been disavowed by Germany. It was already stated                   of the verb “offer”.
in chapter I that reparation must be full. If restitution was
                                                                          234. While recognizing that the institution of satisfac-
not understood in this narrow sense, an impossible over-
                                                                          tion had been the object of serious abuses in the past, the
lap would arise between article 43 and other forms of rep-
                                                                          Special Rapporteur felt that this was not reason enough to
aration. The Commission had been very clear on first
                                                                          dispense with it, but that it needed to be re-examined in
                                                                          order to fulfil its contemporary functions. The main prob-
  64
     Yearbook . . . 1999, vol. II (Part Two), p. 85, document A/54/10,    lem posed by article 45, as adopted on first reading, was
paras. 411–415.                                                           that it had not provided for the acknowledgement of a
  65     ^
     Gabcíkovo-Nagymaros Project (see footnote 35 above), at p. 55,
para. 80.
  66                                                                        67
     See footnote 39 above.                                                      Second Phase, Judgment, I.C.J. Reports 1966, p. 6.
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<pre>44                           Report of the International Law Commission on the work of its fifty-second session
breach by the State which had committed it nor, in a judi-            240. In relation to article 46 bis, the Special Rapporteur
cial context, for the declaration of the existence of a               observed that although the main objective of the article
breach. In modern practice, the normal form of satisfac-              was to limit the amount of compensation, under certain
tion was the declaration of the existence of a breach, such           circumstances it could have a different effect, for exam-
as in the Corfu Channel case.68 Expressions of regret or              ple, where a delay in filing a claim for payment could lead
apologies could, by implying that there had been a viola-             a tribunal to determine that there was no need to pay inter-
tion, fulfil the same function. His approach had been to              est.
partition satisfaction so as to differentiate between its
standard form, namely the acknowledgement of a breach                 241. In relation to subparagraph (a), he noted that the
by the State that committed it or a declaration by a tribu-           majority of members had supported his formulation,
nal, from its exceptional forms. In that regard, he opposed           which had closely followed the wording of article 42,
the suggested merger of paragraphs 2 and 3, which would               paragraph 2, as adopted on first reading, and which had
blur that distinction.                                                been widely accepted by Governments. Yet some diver-
                                                                      gence of views had surfaced in the course of the discus-
235. As regards paragraph 3, he noted that the forms of               sion between those who favoured more elaborate provi-
satisfaction referred to were essentially exemplary and               sions and those who preferred more concise ones. It
therefore symbolic, even if in some instances, such as in             would be a matter for the Drafting Committee to seek to
the “I’m Alone” case,69 a substantial sum had been                    conciliate the different views.
awarded as satisfaction. The Commission, when adopting
the articles on first reading, had opted for dealing with
such situations in the context of article 45, instead of arti-         13. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF PART
cle 44. In doing so it had limited the concept in an unsat-               TWO BIS: IMPLEMENTATION OF STATE RESPONSIBILITY
isfactory manner, i.e. by rejecting the analogy between
non-material damage to private individuals involving
affront, injuria in the general sense, and injuria to States.         CHAPTER I.       INVOCATION       OF THE RESPONSIBILITY OF A
One possible way of limiting the concerns as to the possi-                STATE
ble abuse of satisfaction would be to acknowledge that a
form of non-material injury could also be compensated
for in the context of article 44, by allowing for damages                       (a) General comments on Part Two bis
to the State for injuria. Article 45 would then be restricted
to non-monetary and expressive elements of the resolu-                242. The Special Rapporteur recalled that the Commis-
tion of disputes.                                                     sion had provisionally agreed to formulate Part Two in
                                                                      terms of the obligations of the responsible State, together
236. The Special Rapporteur indicated that retention of               with the inclusion of a new Part Two bis which would deal
a non-exhaustive list of the main forms of satisfaction was           with the rights of the injured State to invoke responsibil-
useful. He had no particular preference as regards the                ity. The Commission had also accepted the Special Rap-
retention in the draft articles of nominal damages. He also           porteur’s distinction between the injured State qua State
noted that the holding of an inquiry could also prove                 victim, and those States that had a legitimate concern in
important by providing insight into what had actually                 invoking responsibility even though they were not them-
occurred and could, in addition, lead to assurances and               selves specifically affected by the breach.
guarantees of non-repetition.
237. As to paragraph 3, subparagraph (c), he noted that               243. Chapter III of his report dealt with the invocation
the argument could be made that the contents of the sub-              of responsibility by the injured State, namely the State
paragraph were already covered by the primary rules, and              which was the party to the bilateral obligation, or which
would not constitute a major function of satisfaction.                was specially affected or necessarily affected by the
                                                                      breach of a multilateral obligation. This was without pre-
238. Concerning paragraph 4, he recalled that the                     judice to the special provisions on the right of the further
majority of the Commission had agreed with the notion of              category of States, i.e. those falling into the category of
proportionality, and emphasized that the main objective               article 40 bis, paragraph 2, to invoke responsibility in a
of paragraph 4 was to prevent excessive demands in rela-              variety of ways, a matter that would be dealt with subse-
tion to satisfaction.                                                 quently.
239. With regard to article 45 bis on interest, while
some members had felt that interest was part of compen-                   (b) The right to invoke the responsibility of a State
sation, the majority had expressed a preference for a sep-                                       (article 40 bis)
arate article, even if interest was only an accessory to
compensation. His own view was that the provisions on                 244. The Commission had earlier debated article 40 bis,
interest should not be included in the article on compen-             although its location in the draft articles was still provi-
sation since there were circumstances where interest                  sional. The Special Rapporteur subsequently proposed
could be payable on principal sums other than compensa-               that the draft article be placed in chapter I of Part Two bis.
tion, for example, on a sum that was payable by virtue of             He stated that in the ordinary case the injured State could
a primary rule.                                                       elect whether to insist on restitution or to receive compen-
                                                                      sation. He did not agree that the injured State could elect
   68
      See footnote 62 above.                                          the form of satisfaction, i.e. the injured State could not
   69
      See footnote 63 above.                                          absolutely insist on a specific form of satisfaction, though
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<pre>                                                                    State responsibility                                                               45
it was entitled to insist on some form of satisfaction. How-                    quater.71 The following possible grounds for loss of the
ever, the injured State was entitled to decline restitution in                  right to invoke responsibility existed: waiver, delay, set-
favour of compensation. Yet, some exceptional limits on                         tlement and termination or suspension of the obligation
the right of the injured State to do so existed, as recog-                      breached. The latter was important, as it were a contrario,
nized in the notion of “valid” election. Those issues were                      because the termination or suspension of the obligation
generally dealt with in the context of the continuing per-                      breached did not give rise to a loss of a right to invoke
formance of the primary obligation, rather than through                         responsibility, as pointed out by arbitral tribunals in the
any mechanism of election as between the forms of                               modern period.
reparation.
                                                                                248. The proposed text recognized two grounds for the
    (c) Invocation of responsibility by an injured State                        loss of the right to invoke responsibility: waiver, includ-
                            (article 46 ter)                                    ing by the conclusion of a settlement, and unreasonable
                                                                                delay. As to waiver, there was no doubt that in normal cir-
                                                                                cumstances an injured State was competent to waive a
245. The Special Rapporteur proposed article 46 ter70                           claim of responsibility. This was a manifestation of the
on formal requirements for the invocation of responsibil-                       general principle of consent. It was not, however, feasible
ity, based on the analogy of article 65 of the 1969 Vienna                      to codify the law of the modalities of the giving of consent
Convention. The first paragraph of the proposed article                         by States. One case which could be assimilated to waiver
required notice of the claim, as a minimum requirement,                         was the unconditional acceptance of an offer of reparation
since certain consequences arose from not giving notice                         (even partial reparation); in other words, settlement of the
of the claim over a long period of time, e.g. the State may                     dispute. A second basis for loss of the right to invoke
be deemed to have waived the claim.                                             responsibility was undue delay; there was no set period or
                                                                                time limit for claims in international law, but the circum-
246. As to the question of admissibility of claims, in                          stances could be such that the responsible State reason-
paragraph 2 the Special Rapporteur observed that, not-                          ably believed the claim had been dropped, and this idea
withstanding that the details of the rules on nationality of                    had been included in a separate paragraph.
claims and the exhaustion of local remedies rule would be
covered in the topic of Diplomatic protection, those were
conditions to the admissibility of the claim itself, and not                       (e) Plurality of injured States (article 46 quinquies)
questions of judicial admissibility which were beyond the
scope of the draft articles on State responsibility. As such
they deserved a mention in the draft articles, and he pro-                      249. The Special Rapporteur recalled that his second
posed chapter I of Part Two bis, as the more appropriate                        report72 had introduced the question of the plurality of
place.                                                                          States and the vexed question of the character of respon-
                                                                                sibility where there is more than one State involved, in the
                                                                                context of chapter IV of Part One, and the general view
         (d) Loss of the right to invoke responsibility                         had been that this should be addressed by the Commission
                          (article 46 quater)                                   in more detail. He noted the tendency for reliance on
                                                                                domestic law analogies with regard to the use of terminol-
                                                                                ogy. Examples included phrases like “joint and several
247. The Special Rapporteur noted that the 1969 Vienna                          responsibility” or “solidary” responsibility. Indeed, there
Convention dealt with the loss of the right to invoke a                         were situations where phrases like “joint and several
ground for suspension and termination of a treaty. Since                        responsibility” or “joint and several liability” were incor-
such issues were frequently raised in practice, it was                          porated in treaties, as in the case of the Convention on the
appropriate to propose an analogous provision dealing                           International Liability for Damage Caused by Space
with loss of the right to invoke responsibility, as article 46                  Objects. However, the problem was that such responsibil-
                                                                                ity tended to be conceived of differently between different
                                                                                legal systems, and even within them in different fields
   70
      The text of article 46 ter proposed by the Special Rapporteur reads       such as contract and tort. Great caution was thus needed
as follows:                                                                     in resorting to the use of domestic law analogies in this
     “Article 46 ter. Invocation of responsibility by an injured State          area.
      “1. An injured State which seeks to invoke the responsibility of
                                                                                   71
   another State under these articles shall give notice of its claim to that          The text of article 46 quater proposed by the Special Rapporteur
   State and should specify:                                                    reads as follows:
      “(a) What conduct on the part of the responsible State is in its                 “Article 46 quater. Loss of the right to invoke responsibility
   view required to ensure cessation of any continuing wrongful act, in                 “The responsibility of a State may not be invoked under these
   accordance with article 36 bis;                                                  articles if:
      “(b) What form reparation should take.                                            “(a) The claim has been validly waived, whether by way of the
      “2. The responsibility of a State may not be invoked under                    unqualified acceptance of an offer of reparation, or in some other
   paragraph 1 if:                                                                  unequivocal manner;
      “(a) The claim is not brought in accordance with any applicable                   “(b) The claim is not notified to the responsible State within a
   rule relating to the nationality of claims;                                      reasonable time after the injured State had notice of the injury, and
      “(b) The claim is one to which the rule of exhaustion of local                the circumstances are such that the responsible State could
   remedies applies, and any effective local remedies available to the              reasonably have believed that the claim would no longer be
   person or entity on whose behalf the claim is brought have not been              pursued.”
   exhausted.”                                                                     72
                                                                                      See footnote 20 above.
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<pre>46                              Report of the International Law Commission on the work of its fifty-second session
250. He proposed article 46 quinquies as a basis for dis-                   253. Furthermore, two saving clauses on the question of
cussion.73 It was without prejudice to the situation where                  admissibility of proceedings and the requirement of con-
States parties to a particular regime had established a set                 tribution between States were included in subparagraph
of rules governing that regime, in the context of the activ-                (b). Concerning the former, the primary reference was to
ity of more than one State, entity or person. In the absence                the Monetary Gold rule,76 albeit that this was a purely
of a special arrangement, the situation was relatively sim-                 judicial rule of procedure. As to the question of contribu-
ple: where there was more than one injured State, as nar-                   tion, which was a matter to be resolved between States,
rowly defined in article 40 bis, paragraph 1, each injured                  the inference was that the injured State could recover in
State on its own account could invoke the responsibility                    full for the injury caused to it by the act attributable to
of the responsible State.                                                   State A, even if the same act was attributable to State B as
                                                                            well, or if State B was responsible for it. Such principle
                                                                            followed from the decision in the Corfu Channel case,
  (f) Plurality of States responsible for the same interna-                 and was supported by general principles of law and con-
             tionally wrongful act (article 46 sexies)                      siderations of fairness.
251. The Special Rapporteur stated that article 46                          254. The Special Rapporteur recalled that he had also
sexies74 dealt with the situation where more than one                       considered in paragraphs 244 to 247 of his report the non
State was responsible for a particular harm, which was                      ultra petita principle, i.e. that a court may not give a State,
different from where a series of States had separately                      in relation to an international claim, more than it asks for.
done damage to a particular State. A classic example was                    While that principle had been widely recognized by the
the Corfu Channel case,75 where mine laying was carried                     courts, it was really a manifestation of the underlying doc-
out by State A, on the territory of State B in circumstances                trine of election, and therefore required no specific recog-
where State B was responsible for the presence of the                       nition in the draft articles.
mines. The responsibility of State B in those particular
circumstances did not preclude the responsibility of State
A. Similarly, under chapter IV of Part One, several States                        14. SUMMARY OF THE DEBATE ON PART TWO BIS
could be responsible at the same time for the same act
causing the same damage.
                                                                            CHAPTER I. INVOCATION            OF THE RESPONSIBILITY OF A
252. The provision was qualified in two ways. First,                            STATE
paragraph 2 (a) provided for the rule against double
recovery of damages as a limit on the recovery of repara-
                                                                                (a) The right to invoke the responsibility of a State
tion, which had been recognized by courts and tribunals.
                                                                                                     (article 40 bis)
However, the situation in which it arose was largely the
situation where the same claim, or at least the same dam-
age, was the subject of complaint by the injured State                      255. In reference to the proposed placement of arti-
against several States. While other situations could be                     cle 40 bis into Part Two bis, it was noted that Part Two
envisaged, the draft articles could not deal with all of the                would not retain any indication of which were the States
procedural ramifications of situations of multiple respon-                  to whom the obligations are owed. Likewise, Part Two bis
sibility. It was sufficient, therefore, that the rule against               also needed to be completed, because article 40 bis, as
double recovery be mentioned in the context of the provi-                   proposed by the Special Rapporteur, distinguished
sion dealing with a plurality of responsible States.                        between injured States and those that had a legal interest,
                                                                            but it was necessary to specify what having a legal interest
                                                                            implied. While article 46 ter provided for the injured State
    73
       The text of article 46 quinquies proposed by the Special Rappor-     invoking responsibility to choose the form of reparation,
 teur reads as follows:                                                     nothing was said about the latter category of States. Such
             “Article 46 quinquies. Plurality of injured States             States could, for example, request cessation and assur-
       “Where two or more States are injured by the same                    ances and guarantees of non-repetition.
    internationally wrongful act, each injured State may on its own
    account invoke the responsibility of the State which has committed
    the internationally wrongful act.”                                          (b) Invocation of responsibility by an injured State
    74
       The text of article 46 sexies proposed by the Special Rapporteur                               (article 46 ter)
 reads as follows:
      “Article 46 sexies. Plurality of States responsible for the same      256. General support was expressed for the inclusion of
                         internationally wrongful act
                                                                            an article on the forms for the invocation of responsibility,
       “1. Where two or more States are responsible for the same
    internationally wrongful act, the responsibility of each State is to be along the lines of that proposed by the Special
    determined in accordance with the present draft articles in relation    Rapporteur.
    to the act of that State.
       “2. Paragraph 1:                                                     257. As to the requirement of notice, contained in the
       “(a) Does not permit any State, person or entity to recover by       chapeau to paragraph 1 of the Special Rapporteur’s
    way of compensation more than the damage suffered;                      proposal, the view was expressed that the analogy to
       “(b) Is without prejudice to:                                        invoking the invalidity, suspension or termination of a
       i“(i) Any rule as to the admissibility of proceedings before a       treaty under article 65 of the 1969 Vienna Convention was
             court or tribunal;
       “(ii) Any requirement for contribution as between the
             responsible States.”                                              76
                                                                                  Case of the Monetary Gold Removed from Rome in 1943, Judg-
    75
       See footnote 62 above.                                               ment, I.C.J. Reports 1954, p. 19.
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<pre>                                                              State responsibility                                                        47
being stretched too far. There was no reason why a State                  would have no meaning. In particular, it was doubted
should first make a protest or give notice of intentions to               whether such right of election was to be construed as a
invoke responsibility.                                                    subjective right of an injured State, to which a corre-
                                                                          sponding obligation on the part of the responsible State
258. Furthermore, support was expressed for the fact                      (to provide the form of reparation that had been “validly”
that the text did not require notice of the claim to be in                elected by the injured State) existed. In practice, election
writing. In that regard, the analogy to article 23 of the                 was most frequently between restitution and compensa-
1969 Vienna Convention was not appropriate. States do                     tion, on the basis of an agreement among the parties.
not always communicate in writing, and it was not always                  Instead, the election of the form of reparation should be
clear what different acts “in writing” would cover. Vari-                 considered an “option” or “claim” open to the injured
ous forms of notification, from an unofficial or confiden-                State, as distinct from an entitlement which the responsi-
tial reminder to a public statement or formal protest could               ble State was bound to respect. In practice, the question of
be taken as suitable means of notification, depending on                  the election of the form of reparation would come at a
the circumstances. The example of the flexible approach                   later stage, after the initial contact with the respondent
taken in the Phosphate Lands in Nauru case77 was cited.                   State, so that the issue should not be confused with the ini-
Hence, any proposal to require writing would not reflect                  tial notification of the claim.
existing practice or the standards adopted by ICJ. By con-
trast, some members suggested the substitution of “a writ-                262. It was further noted that while the draft articles
ten notification” for the word “notice”. It was also pro-                 only regulated inter-State relations, such relations could
posed that the reference be rendered as “officially notify”,              be affected by the fact that individuals or entities other
or “notification”. The Special Rapporteur pointed out, in                 than States are the beneficiaries of reparation, i.e. that
response, that his proposal only referred to “notice” which               claims may be brought for their benefit. It was thus pro-
was more flexible than “writing”; he agreed that much                     posed that the possibility be recognized that individuals
depended on the circumstances.                                            have some say in the choice of the form of reparation.
259. As to subparagraphs (a) and (b), it was suggested                    263. Concerning paragraph 2, the suggestion was made
that the permissive “should” at the end of the chapeau to                 to place it in a separate article, entitled “Conditions for the
paragraph 1 be replaced by “shall”, so as to make the                     exercise of diplomatic protection”, since it was not clearly
requirements in those subparagraphs mandatory. Others                     related to paragraph 1.
however thought that the term “should” was a more accu-
rate reflection of the legal situation. It was also proposed              264. The concern was expressed that the reference in
that subparagraphs (a) and (b) be deleted and reflected in                paragraph 2 (a) to the nationality of claims rule could pre-
the commentary.                                                           judge future work on the topic of diplomatic protection.
                                                                          Furthermore, the phrase “nationality of claims” was con-
260. According to some speakers, paragraph 1 (a) cre-                     sidered imprecise, and better reflected as the nationality
ated the impression that the injured State could decide on                of a person on whose behalf a claim was put forward by a
the required conduct, which was not the case. A responsi-                 State.
ble State would be entitled to object to a conduct other
than that required by the breached rule. It was also sug-                 265. Again, in regard to paragraph 2 (b), it was pointed
gested that the provision should be indicative and not                    out that the inclusion of an article on the exhaustion of
restrictive, so as not to be limited to cessation.                        local remedies rule in the draft articles would limit the
                                                                          Commission’s freedom of action in relation to the topic of
261. Regarding paragraph 1 (b), the view was expressed                    diplomatic protection. A preference was thus expressed
that the right of an injured State to choose the form of rep-             for a more neutral formula, which could state that local
aration was not sufficiently clearly stated, since reference              remedies need to be exhausted in accordance with the
was made to the form and procedure in broad terms, and                    applicable rules of international law. Such a neutral
not to the object and content of the claim. The draft arti-               approach would also avoid prejudging the question of
cles should make the right of election explicit: the injured              which approach to the exhaustion of local remedies rule,
State could demand restitution in accordance with arti-                   i.e. the substantive or procedural, should be favoured.
cle 43 each time it was possible and not disproportionate;                Others thought that the Special Rapporteur’s formulation
the injured State could not yield restitution in cases of a               seemed to favour the procedural theory, and that it was
violation of a peremptory norm of general international                   right to do so. Even so, it might be wiser to include in Part
law, since the respect for the obligation was of interest to              Four a general saving clause relating to the law of diplo-
the whole international community; but in other cases                     matic protection.
there was nothing to prevent a State from waiving restitu-
tion or compensation for satisfaction. Another view was                   266. In response, the Special Rapporteur recalled that
that paragraph 1 (b), did clearly state the right of the                  the Commission had previously considered the question
injured State to choose what form reparation should take.                 of the exhaustion of local remedies in the context of his
Still others took the view that the “right” of the injured                second report,78 and that it had concluded that the matter
State to choose the form of reparation, was not absolute,                 should be left open, because the appropriate approach
particularly when restitution in kind is possible, otherwise              (substantive or procedural) depended on the context. In
the rule of the priority of restitution over compensation                 cases where it was clear that there had already been a
   77
      Certain Phosphate Lands in Nauru (Nauru v. Australia), Prelimi-        78
                                                                                 See paragraphs 220 to 243 of his second report (footnote 20
nary Objections, Judgment, I.C.J. Reports 1992, p. 240.                   above).
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<pre>48                        Report of the International Law Commission on the work of its fifty-second session
breach (e.g. torture) exhaustion of local remedies was a           Lands in Nauru case.79 Likewise, the reference to a “rea-
procedural prerequisite which could be waived; in other            sonable time” was considered too vague. Others dis-
cases the denial of justice was the substance of the claim.        agreed: that notion served a useful purpose, as it left it to
There could also be cases in between. The formulation of           the court to decide, on the merits of each claim, whether
article 46 ter was not intended to prejudice the matter.           the delay in notification constituted grounds for loss of the
Furthermore, a specific reference in the draft articles was        right to invoke responsibility. It was also doubted that the
preferable, since it was at the very least arguable that the       reference to the LaGrand case80 in the report was appro-
exhaustion of local remedies rule applied outside the field        priate to demonstrate the loss of the right to invoke
of diplomatic protection, e.g. to individual human rights          responsibility.
claims under general international law. It was significant
that the articles in the human rights treaties referred to the     271. A preference was expressed for replacing the last
local remedies rule as being that applicable under general         phrase, “the responsible State could reasonably have
international law.                                                 believed that the claim would no longer be pursued”, with
                                                                   a reference to how the claimant had behaved, since a ref-
267. As to the principle of non ultra petita, support was          erence to what the respondent party had believed could
expressed for not including it in the draft articles, since        give rise to problems of proof. It was also suggested that
courts have the right to define compensation above what            the entire phrase was vague and subjective and could be
is being demanded by the claimant in exceptional cases.            deleted.
Its inclusion could also limit the flexibility of interna-
tional tribunals in deciding on the appropriate combina-
tion of remedies. Other members, however, felt that the                (d) Plurality of injured States (article 46 quinquies)
principle was an integral part of positive law.
                                                                   272. General support was expressed for the Special
                                                                   Rapporteur’s proposal, and for the view that, contrary to
        (c) Loss of the right to invoke responsibility             the approach taken by the draft articles as adopted on first
                      (article 46 quater)                          reading, contemporary international relations increas-
                                                                   ingly involves plurilateral relations, a fact which needed
268. The view was expressed that the term “waiver”                 to be reflected in the draft articles.
was being used in a too extensive sense. As such it was
suggested that the broader term “acquiescence”, be used            273. However, the view was also expressed that the sit-
instead. According to one view, the terms “unqualified”            uation envisaged in article 46 quinquies was too simplis-
and “unequivocal” needed clarification. It was suggested           tic. The example was cited of multiple claims on behalf of
that provision could also be made for partial renunciation         individuals (non-nationals) under the European Human
of the right to invoke a particular form of reparation, i.e.       Rights system against a State party to the European Con-
that the election of remedies was a form of partial waiver.        vention on Human Rights. Besides a claim brought by the
The view was also expressed that settlement could not be           individual in question, any other State party to the Con-
categorized as a kind of waiver but should be treated sep-         vention could also bring an inter-State complaint. In addi-
arately, because unilateral action by one State was not            tion, the State of nationality had the right to invoke the
enough. Settlement had to be reached through the actions           responsibility of the State in question for injury to its
of both States. It was also doubted whether unqualified            nationals under the general regime of responsibility. Fur-
acceptance of an offer of reparation could be subsumed             thermore, any other State would have the right to invoke
under the category of waiver.                                      responsibility in a restrictive sense if the violation was a
                                                                   gross violation of an erga omnes obligation. Hence, four
269. The question was raised of what happened to the               different types of consequences to one and the same
wrongful act and the duty of cessation and reparation if           wrongful act could be envisaged. Similarly, the provision
the right to invoke responsibility was lost. In that regard,       did not sufficiently take into account the involvement of
it was suggested that the duty to make reparation                  international organizations in the actions of pluralities of
remained in force, and that the wrongful act could only            States, and in particular the implications for States mem-
become legal if the waiver of the right to invoke respon-          bers of an organization with regard to their own responsi-
sibility amounted to consent ex post.                              bility, where they act in the context of an organization
                                                                   where responsibility is joint and several. The view was
270. On delay and extinctive prescription, agreement               expressed that the wrongfulness of the conduct of States
was expressed with the Special Rapporteur’s view that a            was not affected by the fact that they were acting in accor-
lapse of time does not as such lead to the inadmissibility         dance with the decision of an international organization.
of a claim to reparation. It was doubted whether extinctive        It was also pointed out, however, that the question of the
prescription was recognised in respect of all categories of        responsibility of international organizations was beyond
claims under general international law. It was certainly           the scope of the current draft articles.
not appropriate in the context of “crimes”, which were
recognized as imprescriptible. Similarly, the example was          274. Differing views were expressed regarding the
given of the difficulties of applying the concept of pre-          appropriateness of citing the Convention on the Interna-
scription in the context of States that had undergone a pro-       tional Liability for Damage Caused by Space Objects, as
cess of decolonization, where, in many cases, the evi-
dence that would enable such States to invoke the
responsibility of another State had not been made avail-              79
                                                                         See footnote 77 above.
able to them on independence: such contextual factors                 80
                                                                         LaGrand (Germany v. United States of America), Provisional
had been taken into account by ICJ in the Phosphate                Measures, Order of 3 March 1999, I.C.J. Reports 1999, p. 9.
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<pre>                                                        State responsibility                                                   49
an example. While it could serve as a practical example of          tion needed to be made of recovery by a “person or entity”
the phenomenon of joint and several liability, in the view          other than the State, which was a matter more for the topic
of some, the Convention was an isolated example, with-              of diplomatic protection, it being understood that the State
out any successor, and could not be taken as proof of a             can be injured in the person of its nationals. In addition, a
certain tendency in international law. Others thought that          preference was expressed for making reference to repara-
the reference to the Convention was entirely justified, and         tion instead of compensation.
should have been expanded to cover article VI of the Con-
vention, which contained elements of liability and respon-          279. Different views were stated in relation to subpara-
sibility. Doubts were expressed regarding the usefulness            graph (b) (i) on the question of a rule as to the admissibil-
of the example of European Union mixed agreements,                  ity of proceedings. While it was suggested that it be
which again were subject to a very specific regime. The             moved to the commentary since the draft articles need not
Special Rapporteur noted that a function of the report was          concern themselves with the procedural aspects, support
to set out relevant practice, whether convergent with the           was also expressed for retaining the provision.
conclusions reached or not. He had himself argued that
neither the regime of joint and several liability in the Con-       280. Regarding subparagraph (b) (ii), it was observed
vention, nor that of the mixed agreements within the                that the requirement for contribution was a common law
European Union, reflected the general position under                notion not a civil law one. A preference was thus
international law.                                                  expressed for a more neutral formulation.
       (e) Plurality of States responsible for the same                       15. SPECIAL RAPPORTEUR ’S CONCLUDING
       internationally wrongful act (article 46 sexies)                                REMARKS ON CHAPTER I
275. While support was expressed for the proposed arti-             281. The Special Rapporteur noted the general agree-
cle, the view was expressed that paragraph 1 raised diffi-          ment in the Commission that the draft articles should
culties, since it was not always clear when there was the           include a chapter on invocation of the responsibility of a
“same internationally wrongful act”, and there was a plu-           State, as distinct from the chapters dealing with the im-
rality of States that committed that act. There may be a            mediate consequences of an internationally wrongful act.
plurality of wrongful acts by different States contributing
to the same damage. For example, in the Corfu Channel               282. In relation to article 46 ter, he had intended that the
case,81 it was arguable that there actually were two                term “notice” be less formal than “notification”. There
wrongful acts, not one. Others thought the Corfu Channel            had been a divergence of views as to how formal the noti-
case provided evidence that international law was moving            fication should be, and as to whether it should be in writ-
towards the notion of joint and several responsibility. If          ing or not. He tentatively favoured the view of the major-
the internationally wrongful act of several States had con-         ity of the Commission that it should not be.
tributed to the same injury, then each of those States had          283. The more substantial question was that of the elec-
to repair the damage done as a whole, and they could then           tion as between the forms of reparation. The situation was
turn against the other responsible States, as in the Phos-          clearly different where the question of reparation, includ-
phate Lands in Nauru case.82                                        ing restitution, was implicated with the question of the
276. Concerning the subsidiary nature of domestic law               continued performance of the obligation. It could be that
analogies in the context of article 46 sexies, referred to in       the injured State was not alone competent to release the
paragraph 275 of the report, it was noted that the general          responsible State from the continued performance of the
principles of law referred to in Article 38, paragraph 1 (c),       obligation. No doctrine of election could override that
of the Statute of ICJ were based on domestic law anal-              situation.
ogies. Others noted that such analogies were of limited             284. Thus the Commission was concerned only with a
relevance in this area because of the divergences in                situation where restitution as to the past was at stake, and
national approach and terminology.                                  where no requirement of continued compliance arose.
                                                                    The question was whether, in those circumstances, the
277. As to the drafting of paragraph 1, it was suggested            injured State could freely elect the form of reparation, or
that the emphasis be placed on consequences, and not on             whether—where restitution was possible—the responsi-
determining responsibility. The Special Rapporteur                  ble State could insist on restitution rather than compensa-
explained that in referring to the “responsibility” of each         tion. If the injured State had already suffered financially
State, he had intended to incorporate by reference the              assessable loss, which had not been fully compensated by
whole of the text.                                                  restitution, could the responsible State insist on restitu-
                                                                    tion? He was not aware that that situation had ever arisen,
278. In regard to paragraph 2, preference was expressed
                                                                    and the problem was not an easy one to resolve in the
for redrafting the provision, and placing it elsewhere in
                                                                    abstract. While he had chosen the word “validly” in rela-
article 44 on compensation. As to paragraph 2 (a), it was
                                                                    tion to waiver, it also applied, at least by implication, in
suggested that the rule against double recovery might
                                                                    relation to election under article 46 ter.
apply not only to the case of plurality of responsible
States, but also more generally; on the other hand no men-          285. As to whether the articles should have entered into
                                                                    more detail, both on the validity of an election and on the
   81
      See footnote 62 above.                                        problem where there was more than one injured State and
   82
      See footnote 77 above.                                        disagreement between them, he thought not, partly
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<pre>50                           Report of the International Law Commission on the work of its fifty-second session
because of the absence of guidance from State practice,               nal. The principle of double recovery needed to be taken
and also because so much would depend on the particular               into account in such cases. On paragraph 2 (b), he agreed
circumstances and on the rules at stake. The inference to             that subparagraph (i) was a rule of judicial admissibility
be drawn from chapter II of Part Two was probably that,               and should not be included in the article. It could perhaps
in circumstances where restitution was available, each                be the subject of a general saving clause in Part Four. The
injured State had a right to restitution. It could be that that       Special Rapporteur noted that there had been no disagree-
right prevailed over an election by another injured State—            ment regarding the substance of subparagraph (ii).
at least if that election had the effect of denying the right.
But that should be left to inference, in his view, since it
was impossible to envisage the range of cases.                        16. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF PART
                                                                          TWO BIS: IMPLEMENTATION OF STATE RESPONSIBILITY
286. The Special Rapporteur agreed with the majority                      (continued)
view that paragraph 2 of article 46 ter should be retained
as a separate article. It raised the more general question of
the relationship between the draft on State responsibility            CHAPTER II. COUNTERMEASURES
and the draft on diplomatic protection. Diplomatic protec-
tion was not separate from State responsibility; a State                       (a) General comments on countermeasures
acting on behalf of one of its nationals was nonetheless
invoking State responsibility. If the exhaustion of local             290. The Special Rapporteur pointed out that chapter
remedies rule were omitted there would be very signifi-               III, section D, of his third report was concerned only with
cant concern amongst Governments, especially in view of               the narrower question of the taking of countermeasures by
its place in the draft articles adopted on first reading.             an injured State, as provisionally defined in paragraph 2
Furthermore, the exhaustion of local remedies rule was                of article 40 bis, and that the further question of collective
applicable not only to diplomatic protection but also in the          countermeasures was considered in chapter IV of his
context of individual breaches of human rights, which did             report (see paragraphs 355 to 357 below).
not form part of the law of diplomatic protection but did
form part of the law of State responsibility. He therefore            291. He recalled that, while the draft articles adopted on
favoured a separate article incorporating the substance of            first reading had made a linkage between the taking of
paragraph 2, placed in Part Two bis, and without prejudice            countermeasures and dispute settlement, he had pro-
to the debate between the substantive and procedural                  ceeded on the basis of the Commission’s provisional
theories of the exhaustion of local remedies.                         agreement at its fifty-first session to draft the substantive
                                                                      articles on countermeasures without any specific link to
287. As to article 46 quater on the loss of the right to              any new provisions for dispute settlement, and to leave
invoke responsibility, the Special Rapporteur noted that              questions of dispute settlement under the draft articles to
there had been general support for article 46 quater, sub-            be dealt with in the light of the text as a whole.84
paragraph (a), despite suggestions that the notion of set-
tlement be treated as distinct from waiver. With regard to            292. The proposed articles constituted a reconfiguration
subparagraph (b), he noted the point had been raised that             that sought to solve a number of conceptual and other dif-
there was a distinction between a case of unconscionable              ficulties while maintaining the substance of articles 47
delay amounting to laches or mora, and the case where a               to 50, adopted on first reading. Article 47 had been a
State’s delay caused actual prejudice to the responsible              hybrid in that it had purported to define countermeasures
State.                                                                at the same time as trying to limit them, thereby creating
                                                                      problems. Article 48 created the problem of the relation-
288. With regard to a plurality of injured States and of              ship between the procedure of seeking reparation and the
responsible States, the Special Rapporteur noted that the             taking of countermeasures, which was the most contro-
modest approach of the articles had attracted general sup-            versial issue of the entire text, and which it had tried to
port. No strong support had existed during the debate for             solve by an unsatisfactorily formulated distinction
a more categorical approach in favour of the doctrines of             between interim and other measures. Article 49 had been
joint and several responsibility. As to the point that the            drafted as a double negative, and he proposed a stricter
Corfu Channel case83 could have been interpreted as                   formulation in the light of the guidance given by ICJ in
involving two separate wrongful acts resulting in the                 the Gabcikovo-Nagymaros Project case.85 Article 50 had
same damage, another interpretation could be given, i.e.              dealt with what were conceptually two different matters:
that two States had colluded in a single wrongful act.                the question which obligations could be suspended by
However, he suggested that the Drafting Committee con-                way of the taking of countermeasures, and the question
sider the question of the application of article 46 sexies in         what effects countermeasures could not have in terms of,
situations where there were several wrongful acts each                for example, a breach of human rights and a breach of the
causing the same damage.                                              rights of third States.
289. Concerning paragraph 2 (a) of article 46 sexies, the             293. The Special Rapporteur recalled that at the fifty-
Special Rapporteur opposed the suggested deletion of the              first session he had proposed the inclusion of an article 30
reference to “person or entity”. The situation clearly arose          bis dealing with a version of the exception of non-perfor-
where the individual entity injured recovered, even in
domestic proceedings or before some international tribu-
                                                                         84
                                                                            Yearbook . . . 1999, vol. II (Part Two), pp. 86–88, document A/54/
                                                                      10, paras. 426–453.
   83                                                                    85
      See footnote 62 above.                                                See footnote 35 above.
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<pre>                                                                  State responsibility                                                             51
mance as a circumstance precluding wrongfulness.86 At                         297. The Special Rapporteur stressed that the counter-
the time, the Commission agreed to postpone its consid-                       measures that could be taken were not reciprocal
eration of the draft article until its precise formulation and                countermeasures, in the sense of that concept as used by
need could be assessed in the light of the articles on                        former Special Rapporteur Riphagen,90 where reciprocal
countermeasures to be considered at the present session.                      countermeasures were taken in relation to the same or
For the reasons explained in paragraphs 363 to 366 of his                     related obligation. The question was whether the notion
third report, he no longer proposed the inclusion of the                      of reciprocal countermeasures should be introduced
provision in the draft articles.                                              either exclusively or at least in part as the basis for a dis-
                                                                              tinction in the field of countermeasures. The Special
                                                                              Rapporteur agreed with the rejection of that distinction
          (b) Countermeasures as a circumstance                               by the Commission on first reading.91 Limiting counter-
            precluding wrongfulness (article 30)                              measures to the taking of reciprocal countermeasures
                                                                              would create a situation in which the more heinous the
294. The Special Rapporteur pointed out that the Com-                         conduct of the responsible State, the less likely counter-
mission had at its fifty-first session decided to retain an                   measures were to be available, because the more heinous
article on countermeasures in chapter V of Part One, as a                     the conduct the more likely it was to infringe, for exam-
circumstance precluding wrongfulness, but deferred                            ple, human rights obligations. The old maxim of “a tooth
finalizing the text of the article until its consideration of                 for a tooth” was not a basis for countermeasures in the
countermeasures in chapter III of Part Two, as adopted on                     modern world.
first reading.87 During the present session, the Special
Rapporteur proposed a new, simpler, formulation for arti-                     298. A further important element missing from the draft
cle 30.88                                                                     articles adopted on first reading had been the question of
                                                                              reversion to a situation of legality if the countermeasures
                                                                              had their effect and a settlement was reached. The Special
(c) Purpose and content of countermeasures (article 47)                       Rapporteur proposed to deal with that question through
                                                                              the notion of suspension of the performance of an obliga-
                                                                              tion, and not suspension of the obligation itself, contained
295. The Special Rapporteur pointed to a fundamental                          in paragraph 2 of his proposal for article 47. The obliga-
distinction between the suspension of an obligation and                       tion remained in force, and there was no situation of its
the suspension of its performance. The 1969 Vienna Con-                       being in abeyance. The obligation was there as something
vention dealt with the suspension of treaty obligations,                      by reference to which the countermeasures could be
but did not stipulate how such obligations were to be re-                     assessed. He noted that ICJ in the Gabcíkovo-Nagymaros
                                                                                                                              ^
instituted. Partly to avoid confusion with the suspension                     Project case92 had identified reversibility as a substantial
of treaties, the draft articles adopted on first reading had                  element of the notion of countermeasures. He agreed with
not used the word “suspension”. Instead, article 47 had                       this idea as a matter of principle, the question was how to
simply said that countermeasures occurred when a State                        implement it, given that while they were in force, counter-
did not comply with its obligations. But that approach was                    measures would have adverse effects on the responsible
problematic, since a State “not complying with its obliga-                    State which no one suggested should be reversed retro-
tions” covered all types of scenarios, including some                         spectively.
which could be irreparable and permanent.
296. In the Special Rapporteur’s view, the basic concept                         (d) Obligations not subject to countermeasures and
of a countermeasure was that it should be the suspension                         prohibited countermeasures (articles 47 bis and 50)
by the injured State of the performance of an obligation
towards the responsible State with the intention of induc-
ing the latter to comply with its obligations of cessation                    299. The Special Rapporteur suggested that the content
and reparation. This basic concept was incorporated into                      of article 50, as adopted on first reading, be split into
his proposal for article 47,89 and was subject to the limi-                   two provisions. His proposed draft articles thus distin-
tations specified in the other articles in chapter II.                        guished between obligations the performance of which
                                                                              could not be suspended as countermeasures in the first
   86
      Yearbook . . . 1999, vol. II (Part Two), pp. 78–80, document A/54/
10, paras. 334–347.
   87
      Ibid., paras. 332–333, and pp. 86–88, paras. 426–453.
   88
      The text of article 30 proposed by the Special Rapporteur reads as        obligations under Part Two, as long as it has not complied with
follows:                                                                        those obligations and as necessary in the light of its response to the
      “The wrongfulness of an act of a State not in conformity with an          call that it do so.
   international obligation of that State is precluded if and to the extent         “2. Countermeasures are limited to the suspension of
   that the act constitutes a lawful countermeasure as provided for in          performance of one or more international obligations of the State
   articles [47]–[50 bis].”                                                     taking those measures towards the responsible State.”
   89
      The text of article 47 proposed by the Special Rapporteur reads as      For the analysis of this article by the Special Rapporteur, see
follows:                                                                      paragraphs 293 to 297 and 321 to 333 of his third report.
          “Article 47. Purpose and content of countermeasures                   90
                                                                                   See his sixth report (footnote 9 above), p. 10, art. 8.
                                                                                91
     “1. Subject to the following articles, an injured State may take              See Yearbook . . . 1996, vol. II (Part Two), p. 67, document A/51/
  countermeasures against a State which is responsible for an                 10, footnote 200.
  internationally wrongful act in order to induce it to comply with its         92
                                                                                   See footnote 35 above.
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<pre>52                              Report of the International Law Commission on the work of its fifty-second session
place (art. 47 bis),93 and obligations that could not be                   on first reading, to extreme economic or political coercion
infringed in the course of taking countermeasures                          designed to endanger the territorial integrity or political
(art. 50).94 It was an important distinction when                          independence of the responsible State, had attracted much
considered from the point of view of the impact of                         criticism. Instead, he proposed a simpler formulation, as
countermeasures on human rights. Human rights obliga-                      subparagraph (a), which stipulated that countermeasures
tions could not be suspended by way of counter-                            could not endanger the territorial integrity or amount to
measures, since such measures were, by definition, taken                   intervention in the domestic jurisdiction of the respon-
against a State and not individuals. Problems neverthe-                    sible State.
less arose with regard to the possible effect of counter-
measures on human rights obligations, a matter dealt                       302. The Special Rapporteur also noted that, even if
with in article 50.                                                        lawful under the draft articles, countermeasures could not
                                                                           impair the rights of third parties. If third parties had a right
300. Subparagraph (a) of article 47 bis made it clear that                 as against the injured State, then the injured State was
countermeasures did not deal with forcible reprisals, bel-                 responsible to them for any breach of that right. Third par-
ligerent reprisals or the use of force. As to subpara-                     ties included human beings, the addressees of basic
graph (b), on diplomatic and consular immunity, there                      human rights, so human rights were also covered by new
had been little criticism of the first reading equivalent of               subparagraph (b).
the provision, which had been generally endorsed by
Governments in their comments. Subparagraph (c), per-                       (e) Conditions relating to the resort to countermeasures
taining to obligations concerning the third party settle-                                                  (article 48)
ment of disputes, had been implied in article 48 adopted
on first reading. It was obvious that a State could not                    303. The Special Rapporteur observed that, before a
suspend an obligation concerning the peaceful settlement                   State took countermeasures, it should first invoke the
of disputes by way of countermeasures. Article 50,                         responsibility of the responsible State by calling on it to
adopted on first reading, had also dealt with human rights,                comply: so much was agreed. In his proposal for arti-
stipulating that they could not be subject to the taking of                cle 48,95 paragraph 1 reflected the basic obligation to
countermeasures. However, it was clear from the defini-                    make the demand on the responsible State. But in addition
tion of countermeasures in article 47 that human rights                    provision was made in paragraph 2 for the taking of
obligations themselves could not be suspended. Instead,                    provisional measures where necessary to preserve the
the Special Rapporteur proposed subparagraph (d), which                    injured State’s rights. Article 48 avoided the “interim
concerned the separate and narrower point relating to                      measures of protection” formula, which used the lan-
humanitarian reprisals. Subparagraph (e) had been                          guage of judicial procedure, in favour of the notion of the
retained in article 47 bis since the performance of obliga-                provisional implementation of countermeasures. Para-
tions under peremptory norms of general international                      graph 3 included the further requirement that, if the nego-
law could not be suspended under any circumstances                         tiations did not lead to a resolution of the dispute within a
other than as provided for in those obligations.                           reasonable time, the injured State could take full-scale
                                                                           countermeasures.
301. As regards article 50, the Special Rapporteur
recalled that the reference in subparagraph (b), as adopted                304. In the event the Commission decided against draw-
                                                                           ing a distinction between “provisional” and other counter-
    93                                                                     measures, the Special Rapporteur proposed an alternative
       The text of article 47 bis proposed by the Special Rapporteur reads
 as follows:
                                                                           provision that would replace paragraphs 1 to 3 of arti-
         “Article 47 bis. Obligations not subject to countermeasures
                                                                           cle 48.96
       “The following obligations may not be suspended by way of              95
                                                                                 The text of article 48 proposed by the Special Rapporteur reads as
    countermeasures:                                                       follows:
       “(a) The obligations as to the threat or use of force embodied in        “Article 48. Conditions relating to resort to countermeasures
    the Charter of the United Nations;
                                                                                 “1. Before taking countermeasures, an injured State shall:
       “(b) Obligations concerning the inviolability of diplomatic or
                                                                                 “(a) Submit a reasoned request to the responsible State, calling
    consular agents, premises, archives or documents;
                                                                              on it to fulfil its obligations;
       “(c) Any obligation concerning the third party settlement of
                                                                                 “(b) Notify that State of the countermeasures it intends to take;
    disputes;
                                                                                 “(c) Agree to negotiate in good faith with that State.
       “(d) Obligations of a humanitarian character precluding any
    form of reprisals against persons protected thereby; or                      “2. The injured State may, as from the date of the notification,
                                                                              implement provisionally such countermeasures as may be necessary
       “(e) Any other obligations under peremptory norms of general
                                                                              to preserve its rights under this Chapter.
    international law.”
                                                                                 “3. If the negotiations do not lead to a resolution of the dispute
 For the analysis of this article by the Special Rapporteur, see para-
                                                                              within a reasonable time, the injured State acting in accordance with
 graphs 334 to 343 of his third report.
    94
                                                                              this Chapter may take the countermeasures in question.
       The text of article 50 proposed by the Special Rapporteur reads as        “4. A State taking countermeasures shall fulfil its obligations in
 follows:                                                                     relation to dispute settlement under any dispute settlement
                 “Article 50. Prohibited countermeasures                      procedure in force between it and the responsible State.”
       “Countermeasures must not:                                          For the analysis of this article by the Special Rapporteur, see
       “(a) Endanger the territorial integrity or amount to intervention   paragraphs 298 to 305 and 355 to 360 of his third report.
    in the domestic jurisdiction of the responsible State;                    96
                                                                                 The text of the alternative formulation of paragraphs 1 to 3 of arti-
       “(b) Impair the rights of third parties, in particular basic human  cle 48 proposed by the Special Rapporteur reads as follows:
    rights.”                                                                     “1. Before countermeasures are taken, the responsible State
 For the analysis of this article by the Special Rapporteur, see              must have been called on to comply with its obligations, in
 paragraphs 311 to 319 and 347 to 354 of his third report.                    accordance with article 46 ter, and have failed or refused to do so.”
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<pre>                                                                  State responsibility                                                    53
                (f) Proportionality (article 49)                                    17. SUMMARY OF THE DEBATE ON PART TWO BIS
                                                                                                   (continued)
305. The Special Rapporteur stated that the proposed
new formulation of article 49 sought to highlight the fact                    CHAPTER II.       COUNTERMEASURES
that proportionality was a sine qua non for legality.97 The
wording was thus meant to address some of the concerns                                   (a) General comments on countermeasures
expressed by States on the decisive role which propor-
tionality should have. His proposal was based on the for-                     307. Support was expressed in the Commission for the
                                      ^
mulation of ICJ in the Gabcíkovo-Nagymaros Project                            draft articles proposed by the Special Rapporteur which
case.98                                                                       were considered by some to be an improvement on those
                                                                              adopted on first reading, and were described as displaying
                                                                              a fair balance between the interests of injured States and
                                                                              those responsible for wrongful acts.
   (g) Suspension and termination of countermeasures
                    (article 50 bis)                                          308. The provisions were also welcomed by some as an
                                                                              indication that countermeasures were a fact, which
                                                                              resulted from the international system which lacked the
306. The Special Rapporteur recalled that article 48, as                      means for law enforcement found in domestic systems.
adopted on first reading, had provided for the possibility                    Furthermore, customary international law recognized the
of the suspension of countermeasures once the interna-                        lawfulness of countermeasures in certain circumstances,
tionally wrongful act had ceased and a binding dispute                        as a measure of last resort, and within the limits of neces-
settlement procedure had been commenced. The text                             sity and proportionality. Indeed, it was recognized that the
adopted on first reading had not mentioned the question of                    proliferation of legal rules in the international system had
termination of countermeasures, and that several States                       increased the likelihood of violation of international obli-
had suggested the inclusion of such a provision. ICJ had                      gations, and therefore increased the likelihood of resort to
                                                              ^
indirectly referred to the matter in the Gabcíkovo-                           countermeasures as a form of redress. The elaboration of
Nagymaros Project case, albeit from the viewpoint of the                      a balanced regime of countermeasures was therefore more
reversibility of countermeasures. He thus proposed arti-                      likely to be of use in controlling excesses than silence. At
cle 50 bis,99 which covered both the question of the sus-                     the same time a preference was expressed for drafting
pension of countermeasures (paras. 1 and 2), and their                        countermeasures in a negative sense, so as to emphasize
termination (para. 3). As to suspension in paragraph 1, he                    their exceptional nature.
retained the approach of the text adopted on first reading,
which had been supported by Governments and which                             309. Several members continued to register their oppo-
was based, in part, on the remarks of the Arbitral Tribunal                   sition to countermeasures and to their regulation in the
in the Air Service Agreement case.100                                         text. It was argued that the inclusion of countermeasures
                                                                              limited the acceptability of the draft articles, especially in
                                                                              the view of smaller States that might suffer the conse-
                                                                              quences of the abuse of countermeasures by powerful
   97
      The text of article 49 proposed by the Special Rapporteur reads as      States, although it was recognized that smaller countries
follows:                                                                      did, as between themselves, also resort to counter-
                      “Article 49. Proportionality                            measures on occasion. It was also stated that there was not
      “Countermeasures must be commensurate with the injury                   a sufficient basis in customary law for countermeasures.
   suffered, taking into account the gravity of the internationally           In addition, countermeasures were frequently not
   wrongful act and its harmful effects on the injured party.”                reversible as to their effects. If the Commission preferred
For the analysis of this article by the Special Rapporteur, see               to include the issue of countermeasures, the respective
paragraphs 306 to 310 and 346 of his third report.
   98                                                                         provisions needed to be of a general nature and brief.
      See footnote 35 above.
   99
      The text of article 50 bis proposed by the Special Rapporteur           310. Furthermore, recourse to countermeasures and the
reads as follows:                                                             notions of interim countermeasures and proportionality
   “Article 50 bis. Suspension and termination of countermeasures             were all sources of possible disagreement between the
      “1. Countermeasures must be suspended if:                               State that considered itself injured and the allegedly
      “(a) The internationally wrongful act has ceased; and                   responsible State—responsibility being something that
      “(b) The dispute is submitted to a tribunal or other body which         still remained to be determined. The reputedly injured
   has the authority to issue orders or make decisions binding on the
   parties.
                                                                              State could not resolve the disagreement unilaterally. Res-
      “2. Notwithstanding paragraph 1, countermeasures in
                                                                              olution could thus be achieved only through the machin-
   accordance with this chapter may be resumed if the responsible State       ery for peaceful settlement of disputes. Hence, several
   fails to honour a request or order emanating from the tribunal or          members expressed a preference for a return to the
   body, or otherwise fails to implement the dispute settlement               linkage of countermeasures with dispute settlement, as
   procedure in good faith.                                                   proposed in the draft articles adopted on first reading,
      “3. Countermeasures shall be terminated as soon as the                  which would give countermeasures a more certain footing
   responsible State has complied with its obligations under Part Two
   in relation to the internationally wrongful act.”                          under international law. It was suggested that account
For the analysis of this article by the Special Rapporteur, see               should be taken of situations where there was no dispute
paragraphs 300, 305, 359 and 361 of his third report.                         settlement procedure between the States concerned.
   100
       Case concerning the Air Service Agreement of 27 March 1946
between the United States of America and France, decision of 9 Decem-         311. Still others maintained that delinking counter-
ber 1978 (UNRIAA, vol. XVIII (Sales No.E/F.80.V.7), p. 417).                  measures from dispute settlement was acceptable in the
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<pre>54                              Report of the International Law Commission on the work of its fifty-second session
light of the fact that the possible final outcome of the                   reading. Others thought this unnecessary, since by their
Commission’s work was a flexible instrument—a decla-                       very definition countermeasures were taken towards a
ration by the General Assembly—and because there was                       defaulting State, and their preclusive effect was limited to
a growing number of particular regimes that sought to                      that State. This could be made clear in the drafting of arti-
regulate the means by which to induce States to return to                  cles 30 and 47, but a separate article dealing with third
a situation of legality.                                                   parties was unnecessary and even confusing.
312. For his part, the Special Rapporteur was of the                       317. There was for the most part agreement with the
view that it would not be possible to establish an auto-                   Special Rapporteur’s rejection of reciprocal counter-
matic link between the taking of countermeasures and dis-                  measures, since, in practice, it was virtually impossible
pute settlement, but that the articles should fit into exist-              for countermeasures to respond substantially to the obli-
ing and developing systems of dispute settlement, so that                  gation that had been breached. But there was support for
a State which was credibly alleged to have committed a                     including an express reference to the principle of revers-
breach of international law would be in a position to pre-                 ibility in the text.
vent any countermeasures by stopping or suspending the
allegedly wrongful act and submitting the case to any                      318. There was criticism of any language which implied
available judicial procedure.                                              that countermeasures were a positive or “subjective” right
                                                                           of the injured State. Accordingly, paragraph 1 could be
313. Numerous drafting suggestions were made,                              redrafted in a negative or a more neutral formulation
including reducing the provisions in number and includ-                    along the lines of “[a]n injured State may not take
ing a legal definition of countermeasures. It was sug-                     countermeasures unless”, or alternatively along the lines
gested that the draft articles explicitly distinguish                      of the text adopted on first reading. It was also proposed
between such closely related concepts as countermeas-                      that the latter part of paragraph 1 either be deleted or
ures, reprisals, retortion and sanctions. Other members                    redrafted more clearly so as, for example, to limit
proposed the express inclusion of the notions of recipro-                  countermeasures to those strictly necessary under the
cal countermeasures and reversibility. According to some                   circumstances. In no case could countermeasures be of a
members, countermeasures were more suitable in relation                    punitive nature. It was also considered advisable that
to international delicts as opposed to breaches constitut-                 before taking any countermeasures, it had to be absolutely
ing international crimes; others took the contrary position.               certain that an internationally wrongful act had indeed
                                                                           occurred.
314. There was general agreement with the Special
Rapporteur’s decision to withdraw his proposal, made at                    319. As regards paragraph 2, a preference was
the fifty-first session, to include an article 30 bis in chap-             expressed for its deletion since it could lead to interpreta-
ter V of Part One, relating to non-compliance caused by                    tive problems in practice, and because the question of sus-
prior non-compliance by another State, as a circumstance                   pension of performance had been deliberately left out by
precluding wrongfulness.                                                   the Commission during the first reading. In that regard,
                                                                                                         ^
                                                                           the reference to the Gabcíkovo-Nagymaros Project case
                                                                           in support of the retention of the notion of suspension was
     (b) Countermeasures as a circumstance precluding                      considered inappropriate. Others suggested that the refer-
                wrongfulness (article 30)                                  ence to suspension of performance was acceptable since
                                                                           it covered both the removal of a prohibition as well as the
315. General support was expressed for the inclusion of                    suspension of an affirmative obligation.
an article 30 in chapter V of Part One recognizing the tak-
ing of lawful countermeasures as a circumstance preclud-                      (d) Obligations not subject to countermeasures and
ing wrongfulness, based on the recognition of such a pos-
                                       ^                                      prohibited countermeasures (articles 47 bis and 50)
sibility by ICJ in the Gabcíkovo-Nagymaros Project
case101 and by the Arbitral Tribunal in the Air Service                    320. A majority of the Commission did not support the
Agreement case.102 To the contrary, it was suggested that,                 Special Rapporteur’s proposal to split article 50 as
in the light of articles 47 bis and 50 bis, article 30 might               adopted on first reading into two separate articles, and
not be necessary. In addition, it was felt that in reality the             preferred either returning to a single article on prohibited
circumstance precluding wrongfulness was not the                           countermeasures or incorporating its content into article
countermeasure itself, but the internationally wrongful                    48. Alternatively, it was suggested that, if the distinction
act to which it responded.                                                 were to be kept, article 47 bis would have to be placed
                                                                           immediately before article 50.
(c) Purpose and content of countermeasures (article 47)
                                                                           321. While support was expressed for article 47 bis, a
                                                                           preference was also voiced for a more general formula-
316. While support was expressed for the Special Rap-                      tion instead of an enumerative listing of prohibited
porteur’s proposal for article 47, several suggestions,                    countermeasures. Alternatively, the list in article 47 bis
mostly of a drafting nature, were made. For example, it                    could be simplified or shortened, by means of a single ref-
was proposed that provision be made for the situations of                  erence to peremptory norms of general international law,
breach of an obligation towards a third State, as had been                 since most if not all of the exceptions concerned peremp-
provided for in paragraph 3 of the article adopted on first                tory norms. It was further suggested that a general rule be
                                                                           incorporated confirming that countermeasures were pro-
     101
           See footnote 35 above.                                          hibited when the obligation that would be breached
     102
           See footnote 100 above.                                         affected the international community as a whole. In
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<pre>                                                        State responsibility                                                    55
response, the Special Rapporteur suggested the alterna-             of a separate provision. It was also pointed out that most
tive of stating that countermeasures could only affect              countermeasures would have some impact on some
obligations in force between the responsible State and the          human rights particularly in the social and economic field.
injured State.                                                      Concerns were further expressed regarding the reference
                                                                    to “basic” human rights, and the possible divergence in
322. In relation to subparagraph (a), the view was                  interpretation that may arise in practice. It was also
expressed that the prohibition on the threat or use of force        doubted whether every human rights violation implied a
should have been formulated in the form of a prohibition.           prohibition on equivalent countermeasures, or whether a
                                                                    distinction had to be drawn between different categories
323. On subparagraph (c), it was queried how an obliga-             of rights. Support was expressed for an additional clause
tion concerning third party settlement of disputes could,           on prohibiting countermeasures that endanger the envi-
in practice, be suspended by way of countermeasures. The            ronment.
failure of a party to appear before a compulsory dispute
settlement procedure would not of itself halt the proceed-          327. In response, the Special Rapporteur stressed that
ings. Furthermore, it was maintained that the responsible           the analysis of human rights obligations was difficult in
State should as a general rule be allowed sufficient oppor-         the case of countermeasures. A countermeasure which,
tunity to make redress, particularly in cases where a               per se, was lawful might constitute a violation of human
treaty, containing the obligation in question, provided             rights if sustained over a long period of time, for example,
mechanisms for ensuring implementation or settlement of             a commercial embargo. The law on countermeasures
disputes. If such mechanisms proved inadequate, an                  needed to be coordinated with existing international
injured State could justifiably resort to countermeasures           human rights law. Therefore, he proposed that the effects
on the basis of customary international law. It was also            on human rights be reserved, in a single article combining
suggested that specific provision could be made for the             articles 47 bis and 50, without deciding whether some are
situation in which a treaty explicitly prohibited the taking        basic or not, since the content of the rights themselves
of countermeasures, as had been done in article 33                  would determine the permissibility of countermeasures.
adopted on first reading which expressly allowed for the
situation where a treaty provision could exclude resort to
the defence of state of necessity.                                              (e) Conditions relating to the resort
                                                                                   to countermeasures (article 48)
324. It was suggested that subparagraph (d) be reformu-
lated along the lines of the provision as adopted on first          328. As to paragraph 1, subparagraph (a), of article 48,
reading, or that an additional paragraph be inserted                it was noted that, in principle, countermeasures must be
excluding reprisals in the context of human rights. It was          preceded by a demand by the injured State, which the
also queried whether subparagraph (e) should be retained,           responsible State had failed to meet. Such demand had to
since it was implicit in the notion of peremptory norms             be so decisively expressed as to leave the responsible
that no departure was permitted.                                    State with no doubt as to the seriousness of the implica-
                                                                    tions involved. Concerning subparagraph (b), the view
325. Concerning article 50, the proposed title could be             was expressed that notification of countermeasures before
amended to make it clear that it dealt with the effect of           negotiations had taken place was premature. Furthermore,
countermeasures. As to subparagraph (a), concern was                the subparagraph could be deleted since it might be coun-
expressed regarding the use of the word “intervention”,             terproductive to inform the responsible State of the exact
since it was difficult to define in practice. Some preferred        countermeasures that were to be taken. It was also sug-
to return to the first reading formulation of article 50, sub-      gested that the article be redrafted so that an offer to nego-
paragraph (b), i.e. “[e]xtreme economic or political coer-          tiate formed part of the process of giving notice. In rela-
cion designed to endanger the territorial integrity or polit-       tion to subparagraph (c) it was suggested that the word
ical independence of the State which has committed the              “agree” be replaced with “propose” or “offer”. Further-
internationally wrongful act”, which reflected language             more, it was suggested that while the proposed article had
commonly used in General Assembly resolutions, and                  rightly attached importance to the good faith of the
contained a principle important to developing States. Oth-          responsible State, it had neglected the good faith of the
ers agreed with the Special Rapporteur’s approach of not            injured State. If the responsible State accepted the offer of
making reference to “political independence of the State”,          negotiations, or it agreed to the dispute being settled by a
since that was implicit in “territorial integrity”. A further       judicial or arbitral tribunal, the injured State could not be
view was that the reference to “domestic jurisdiction of            allowed to resort unilaterally to countermeasures.
States” was not in line with developments in international
law, where limits had been placed on the rule in Article 2,         329. With regard to paragraph 2, it was suggested that
paragraph 7, of the Charter of the United Nations. This             the distinction between “provisional” and other counter-
opinion was contested by some other members.                        measures be abolished, since, in the absence of a legal
                                                                    framework for “provisional countermeasures”, such
326. In relation to subparagraph (b), support was                   measures in fact and in practice encompassed all the ele-
expressed for the Special Rapporteur’s view that human              ments of full-scale countermeasures. Rather the excep-
rights obligations could not be subject to countermea-              tional character of countermeasures of any kind should be
sures. Concern was also expressed regarding the refer-              stressed.
ence to basic human rights in the context of the expression
“third parties”, which was only applicable to States or             330. Concerning paragraph 3, the appropriateness of
other subjects of international law. Hence, it was sug-             using the word “dispute” was questioned. Likewise, the
gested that human rights might better constitute the object         reference to a “reasonable time” was considered too
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<pre>56                          Report of the International Law Commission on the work of its fifty-second session
vague. Others thought the term offered injured States a              why the submission of a dispute to a tribunal should auto-
satisfactory safeguard against protracted and fruitless              matically suspend countermeasures, when the submission
negotiations.                                                        of the same dispute to a tribunal at an earlier stage, as con-
                                                                     templated under article 48, did not automatically prevent
331. Some support was expressed for the shortened                    their being taken in the first place. Furthermore, the pro-
draft presented by the Special Rapporteur as an alterna-             vision required automatic suspension of countermeasures,
tive to paragraphs 1 to 3.103                                        even where a tribunal authorized to issue a suspension
                                                                     order did not do so.
332. With regard to paragraph 4, the view was
expressed that the notion of good faith required that a              337. As to paragraph 2, it was noted that the unqualified
State which had entered into an obligation to arbitrate dis-         reference to “an order” from an international tribunal
putes or seek a judicial settlement, could not subvert it by         could give rise to the interpretation that even procedural
acts that were otherwise illegal. Furthermore, where the             orders were included, which should not be the case. It was
States involved belong to an institutionalized framework             thus proposed that the provision be qualified with a phrase
which prescribed peaceful settlement procedures, the                 such as “on the substance” or “on the merits of the case”.
exhaustion of those procedures would be a prerequisite to            Alternatively, it was suggested that paragraph 2 be
the taking of countermeasures. In addition, it was sug-              deleted.
gested that paragraph 4 be strengthened to reflect the need
to submit disputes to available dispute settlement proce-
dures prior to the taking of countermeasures, so as to                         18. SPECIAL RAPPORTEUR ’S CONCLUDING
strike a proper balance by including a reference to                                       REMARKS ON CHAPTER II
third-party dispute settlement in the draft while finding a
practical method of separating countermeasures and dis-
pute settlement.                                                     338. The Special Rapporteur recalled that most States
                                                                     had, either reluctantly or definitively, accepted the elabo-
                                                                     ration of provisions on countermeasures. In spite of the
                (f) Proportionality (article 49)                     reluctance with which countermeasures might be contem-
                                                                     plated, he agreed with those who felt that it was preferable
333. While general support was expressed for the new                 to have some regulation rather than none, since counter-
formulation of article 49 proposed by the Special Rappor-            measures constituted a fact of life. Furthermore, the Com-
teur, which was described as being simpler and clearer               mission needed to draw a clear distinction between the
than that adopted on first reading, others thought the pro-          general question of the position taken by the draft on dis-
posed wording merited further consideration. Lawfulness              pute settlement and the specific connection between dis-
could not be guaranteed by such a provision since the                pute settlement and countermeasures. The general ques-
injured State itself was effectively authorized to gauge the         tion depended on the form that the draft would ultimately
proportionality of its countermeasures. A more precise               take. Until that decision was made, article 48 contained as
formulation of the proportionality requirement was neces-            close a connection between countermeasures and dispute
sary.                                                                settlement as was possible without introducing new forms
                                                                     of dispute settlement into the text.
334. It was further stated as to the idea of a balance with
the injury suffered or the gravity of the wrongful act, that         339. With regard to article 30, the Special Rapporteur
countermeasures were tolerated to induce the wrongdoer               indicated that the general view had been favourable to its
to comply with its obligations, not by way of punishment             retention in a simplified form.
or sanction. Thus, proportionality was concerned only
with the degree of the measures necessary to induce com-             340. The Special Rapporteur acknowledged that his
pliance. The reference to the gravity of the internationally         attempt to make a distinction between articles 47 bis and
wrongful act and its effects on the injured party, added             50 had failed and that the contents of these articles should
nothing of legal relevance.                                          therefore be merged.
                                                                     341. As regards article 47, the Special Rapporteur
              (g) Suspension and termination of                      agreed that a clarification to stipulate that countermea-
               countermeasures (article 50 bis)                      sures might not be taken unless certain conditions were
                                                                     met would be helpful and thus leave any illegal effect to
                                                                     be regulated by article 30.
335. General support was expressed for the inclusion of
article 50 bis, as proposed by the Special Rapporteur.               342. In relation to articles 47 and 47 bis, two questions
                                                                     had been raised: the first concerned the question of revers-
336. In relation to paragraph 1, a preference was                    ibility and the second that of the bilaterality of the sus-
expressed for referring to “terminated” as opposed to                pended obligations. In the view of the Special Rapporteur,
“suspended”. It was queried whether subparagraph (b)                 the Commission could even proceed to state that counter-
applied equally to the decisions of the Security Council             measures must be reversible and must relate to obliga-
and the orders of ICJ. The Special Rapporteur indicated              tions only as between the injured State and the target
that Council decisions were not intended to be covered by            State.
the article. It was also pointed out that there was no reason
                                                                     343. As regards article 48, the Special Rapporteur noted
                                                                     that the text he had proposed constituted a reasonable
   103
       See footnote 96 above.                                        compromise between the two opposing positions that pre-
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<pre>                                                                    State responsibility                                                      57
ferred either a simple provision or the non-recourse to                         tional community as a whole, as well as the notion of
countermeasures until negotiations had been exhausted.                          peremptory norms. Chapter IV of his report focused on
He agreed with the suggested deletion of article 48, para-                      outstanding issues, and had to be considered in the light
graph 1 (b).                                                                    of all the work that had preceded it.
344. As regards article 49, the debate in the Commis-                           349. It had to be recognized that the primary means of
sion had also reflected a general agreement on the inclu-                       addressing the problems referred to in article 19 was not
sion in the draft articles of a reference to the need to be                     the law of State responsibility. Faced with major catastro-
both proportionate and commensurate to the injury                               phes arising from wrongful conduct, such as genocide or
caused by the wrongful act, though the precise way to                           invasion of a State, it could not be argued that the rules of
reflect them therein was subject to further consideration.                      State responsibility by themselves were sufficient to
                                                                                resolve those problems without any organizational
345. The Commission had generally endorsed article 50                           response or coordinated action by the international com-
bis and the Special Rapporteur was of the view that the                         munity. The reference to “crime” in article 19 was his-
provision should be retained irrespective of whatever                           torically a reference to the conduct of Governments which
decision might be made regarding article 48.                                    were unaccountable to their people, acting for their own
                                                                                ends, and often with their population as the primary or
                                                                                ancillary victims of their action. The idea that the entire
19. INTRODUCTION           BY THE SPECIAL RAPPORTEUR OF THE                     population should be victimized in that situation was dif-
      INVOCATION OF RESPONSIBILITY TO A GROUP OF STATES                         ficult to accept. Care had to be taken with the notion that
      OR TO THE INTERNATIONAL COMMUNITY                                         the pronouncement of criminal conduct was by itself a
                                                                                sufficient response to those problems.
                     (a) General considerations
                                                                                350. It was also significant that the international com-
346. The Special Rapporteur pointed out that chapter IV                         munity had begun to adopt more rigorous methods of
of his third report dealt with issues previously considered                     dealing with individuals responsible for those crimes, in
by the Commission during the current quinquennium,                              particular through the Rome Statute of the International
both in the context of the examination of article 19, as                        Criminal Court. The way forward could be to hold those
adopted on first reading, in his first report104 and of the                     individuals accountable for their acts, rather than holding
debate on article 40 bis during the present session.                            the victimized population accountable through some con-
                                                                                cept of crime of State. It was not that the State was not
347. The text adopted on first reading had moved                                responsible for their acts. Under classical rules of attribu-
beyond codification by including the controversial con-                         tion, the State was responsible for such acts. Indeed, arti-
cept of State “crimes” in article 19, but had not developed                     cle 19 operated on the same principle of attribution as any
that idea in any significant way. It had also implicitly                        other internationally wrongful act. However, if article 19
established a regime of countermeasures in respect of not-                      was concerned with “crimes” proper, it would have had its
directly injured States, by a combination of articles 40 and                    own rules of attribution, as in any criminal code.
47, which was far too broad, for example, by giving third
States the right to take countermeasures in respect of any                      351. As to the question of the right of every State to
breach of human rights whatever.                                                invoke the responsibility for breaches of obligations to the
                                                                                international community as a whole, the Commission had
348. The Special Rapporteur recalled the debate in the                          accepted that possibility, in principle, as a result of its dis-
Commission at its fiftieth session on article 19, and its                       cussion on his earlier proposals relating to article 40 bis.
provisional decision to address the issue in the following                      While such right had to be clearly spelled out in the draft
way:                                                                            articles, the question was how far it should extend. In his
. . . it was noted that no consensus existed on the issue of the treatment      view, it clearly extended to cessation, i.e. all States were
of “crimes” and “delicts” in the draft articles, and that more work             to be regarded as having a legal interest in the cessation of
needed to be done on possible ways of dealing with the substantial              breaches of obligations to the international community;
questions raised. It was accordingly agreed that: (a) without prejudice         and as a corollary all States were entitled to that aspect of
to the views of any member of the Commission, draft article 19 would
be put to one side for the time being while the Commission proceeded
                                                                                satisfaction that amounted to declaratory relief, even if
to consider other aspects of Part One; (b) consideration should be given        they had no individual entitlement to the other forms of
to whether the systematic development in the draft articles of key              satisfaction. Furthermore, in his view, such States would
notions such as obligations (erga omnes), peremptory norms (jus                 at least be able to seek restitution on behalf of the victims
cogens) and a possible category of the most serious breaches of inter-          of crimes.
national obligation could be sufficient to resolve the issues raised by
article 19.105
                                                                                352. Limitations had to be imposed on such a right,
Progress had been made along the lines suggested at the                         given that other considerations had to be taken into
fiftieth session, particularly through the disaggregation of                    account. For example, it could become chaotic if a num-
the concept of international crime in various aspects of the                    ber of States began demanding different things under the
draft articles, for example, by reconsidering article 40 and                    rubric of State responsibility. In his view, three separate
introducing into the draft articles, in a much more system-                     scenarios were discernable. First, in the context of the
atic manner, the notion of obligations owed to the interna-                     breach of an obligation to the international community as
                                                                                a whole, the primary victim might be a State, for example,
                                                                                a State which was the target of aggression. In that situa-
    104
         See footnote 18 above.                                                 tion the victim State should control the responses by way
    105
         Yearbook. . . 1998, vol. II (Part Two), p. 77, para. 331.              of State responsibility, i.e. third States’ responses should
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<pre>58                              Report of the International Law Commission on the work of its fifty-second session
be secondary both within the context of countermeasures                      (b) Collective countermeasures (articles 50 A and 50 B)
and of the invocation of responsibility. Such third States
could demand cessation, but once the conduct had ceased,                     355. The Special Rapporteur distinguished between two
questions of the resolution of the dispute were in the first                 situations in relation to the question of collective counter-
place a matter for the victim State to resolve. The second                   measures: (a) where a State was the victim of the breach;
scenario, where there was no injured State in respect of                     and (b) where no State was the victim of the breach. In his
such a breach, for example, in the context of where the                      view, where a State itself had the right to take counter-
population of, or a particular group within, the responsi-                   measures as a result of the breach of an obligation to the
ble State was the victim, such as in the situation of Cam-                   international community as a whole or any multilateral
bodia. There was no State on whose behalf the interna-                       obligation, other States parties to the obligation should be
tional community would be responding. The notion that                        able to assist it, at its request, and within the limits of the
this was merely a deficiency in the State system, hence                      countermeasures it could have taken itself. That was a
beyond the scope of State responsibility, was too narrow.                    form of “collective” countermeasures, in that they could
The international community had to be able to intervene                      be taken by any of the States involved in some collective
in that case, irrespective of the views of the responsible                   interest, and had a direct analogy to collective self-
State, and seek cessation, a minimum element of satisfac-                    defence. The other States were themselves affected,
tion and restitution. The third situation was where no one                   because an obligation that was owed to them (as part of a
was identifiably the victim of the breach. Examples                          group or as members of the international community) was
included obligations in relation to the environment owed                     breached.
to the international community as a whole, where the
whole of humanity was affected in the long term, but                         356. The more difficult question was the taking of col-
nobody was specifically affected by it, as in the case of                    lective countermeasures in relation to the situation where
global warming. In that situation, State members of the                      there was no victim State. State practice in such regard
international community should be able at least to seek                      was embryonic, partial, not clearly universal, and contro-
cessation.                                                                   versial. The opinio juris associated with that practice was
                                                                             also unclear. There was a case therefore for the Commis-
353. Furthermore, if there were to be a regime of crimes                     sion to decide to adopt instead a saving clause leaving it
in the international system, that should involve, as a min-                  to the future. While such a saving clause remained an
imum, notions of penalty. It might also involve other fea-                   option if agreement could not be reached, in his view the
tures of criminal systems, that were unenvisagable in the                    Commission should make a concrete proposal with a view
                                                                             to receiving comments on it from the Sixth Committee, on
present international system. In regard to the question of
                                                                             the basis of which a final decision would be taken. He
penalty, the Special Rapporteur pointed to an example of
                                                                             therefore proposed that the States parties to an obligation
a State being “fined” by an international tribunal, the                      owed to the international community as a whole should
European Court of Justice.106 It was, however, the first                     have the right to take collective countermeasures in
experience of the European Union in that field, and it                       response to a gross and well-attested breach of such an
remained to be seen how it would develop. It did, how-                       obligation: in his view this was the least that could be
ever, demonstrate what was necessary to have a proper                        done in the context of egregious breaches, such as geno-
system of penalties, i.e. due process, compulsory jurisdic-                  cide.
tion, and proper procedures, all of which did not exist in
the context in which the Commission was considering the                      357. He proposed two articles on countermeasures, to
draft articles on State responsibility.                                      be included in chapter III of Part Two bis before article 50
                                                                             bis, the first dealing with countermeasures on behalf of an
354. The Special Rapporteur stressed the value of alter-                     injured State (art. 50 A),108 and countermeasures in cases
native formulations for “crimes”, such as “international                     of serious breaches of obligations to the international
wrongful act of a serious nature”, or “exceptionally seri-                   community as a whole (art. 50 B).109
ous wrongful act”, some of which were distinct legal
wrongs in themselves (e.g. aggression, genocide) and                            108
                                                                                    The text of article 50 A proposed by the Special Rapporteur reads
some of which were aggravated forms of breaches of gen-                      as follows:
eral obligations (e.g. systematic torture). The acts covered                      “Article 50 A. Countermeasures on behalf of an injured State
by those phrases were thus determined by the context, the                          “Any other State entitled to invoke the responsibility of a State
gravity of the breach as well as the content of the primary                     under [article 40 bis, paragraph 2] may take countermeasures at the
obligation. He proposed a further article to be included in                     request and on behalf of an injured State, subject to any conditions
chapter I of Part Two by way of clarification.107                               laid down by that State and to the extent that that State is itself
                                                                                entitled to take those countermeasures.”
                                                                                109
                                                                                    The text of article 50 B proposed by the Special Rapporteur reads
                                                                             as follows:
    106                                                                          “Article 50 B. Countermeasures in cases of serious breaches of
        European Court of Justice, case C–387/97 (Commission of the
 European Communities v. Hellenic Republic), judgment of 4 July 2000.                 obligations to the international community as a whole
    107
        The text of the article proposed by the Special Rapporteur reads            “1. In cases referred to in article 51 where no individual State
 as follows:                                                                    is injured by the breach, any State may take countermeasures,
    “The obligations of the responsible State set out in this Part may be       subject to and in accordance with this Chapter, in order to ensure the
 owed to another State, to several States, to all other States parties or to    cessation of the breach and reparation in the interests of the victims.
 the international community as a whole, depending on the character and             “2. Where more than one State takes countermeasures under
 content of the international obligation and on the circumstances of the        paragraph 1, those States shall cooperate in order to ensure that the
 breach, and irrespective of whether a State is the ultimate beneficiary of     conditions laid down by this Chapter for the taking of
 the obligation.”                                                               countermeasures are fulfilled.”
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<pre>                                                                  State responsibility                                                              59
 (c) Consequences of serious breaches of obligations to                       20. SUMMARY          OF THE DEBATE ON THE INVOCATION OF
    the international community as a whole (article 51)                           RESPONSIBILITY TO A GROUP OF STATES OR TO THE INTER-
                                                                                  NATIONAL COMMUNITY
358. The Special Rapporteur noted that the additional
legal consequences that, according to article 52 adopted                                         (a) General considerations
on first reading, flowed from a “crime” within the mean-
ing of article 19 had either been eliminated in the second                    359. Agreement was expressed with the general
reading review, or were trivial. However, if the breaches                     approach of the Special Rapporteur, although numerous
were egregious breaches of obligations owed to the inter-                     comments and suggestions for drafting improvements
national community as a whole, and in a situation where                       were made.
there was no injured State, it was arguable that other
States, members of the international community, had to be                     360. With regard to the compromise reached by the
able to seek at least aggravated damages on behalf of the                     Commission at its fiftieth session, the view was expressed
actual victims, or the international community as a whole,                    that a systematic development of obligations erga omnes
and not on their own account. He proposed a new                               and peremptory norms would constitute a satisfactory
chapter III for Part Two, entitled “Serious breaches of                       replacement for article 19. Conversely, it was stated that,
obligations to the international community as a whole”,                       while the Special Rapporteur had made a valiant attempt
containing a single article 51,110 which was article 53, as                   at reaching compromise in the Commission on the ques-
adopted on first reading. But it would be bizarre if the                      tion of international crimes, his proposal was not entirely
only legal consequences of a serious breach were legal                        satisfactory to the proponents of international “crime”. It
consequences for third States; he had accordingly pro-                        was proposed that, while article 19 could be deleted, the
posed that a State responsible for such a breach should be                    reference to international crimes should be retained in the
obliged to pay punitive or expressive damages sought on                       text in article 51, paragraph 1, since the notion had
behalf of the victims. A definition of serious breach                         become part of the language of international law. By fol-
should be included in article 51. Article 19, which per-                      lowing the Special Rapporteur’s approach, the Commis-
formed no function at all in the rest of the draft articles,                  sion should not be seen to be abandoning the notion of
could be deleted. While there was much authority for the                      crime; rather it was saying that its place was not, or not
proposition that punitive damages did not exist in interna-                   primarily, in the draft articles on State responsibility.
tional law, he suggested that such a reference could none-                    Therefore, it was suggested that if article 19 were deleted,
theless be included, at least as one alternative. He also                     and no reference to “crime” were retained in the draft arti-
proposed in paragraph 4 to reserve to the future such                         cles, a study of international crime could be included in
penal or other consequences that the breach may entail                        the Commission’s long-term programme of work.
under international law, including developing interna-
tional law. In addition, he proposed an additional para-                      361. Others strongly urged caution so as not to imperil
graph to be included in article 40 bis, relating to what each                 the entire exercise. It was disputed that the term “State
of the basic categories of States, i.e. injured States and                    crime” had been accepted in international law, or that the
other States, could seek in that context.111                                  deletion of article 19 necessarily meant the abandonment
                                                                              of the concept of international crime. Its deletion was
                                                                              preferable so as to avoid a lengthy debate on crime by
   110
       The text of article 51 proposed by the Special Rapporteur reads        instead focusing on the consequences that arose from seri-
as follows:                                                                   ous breaches of international obligations, breaches deter-
  “Article 51. Consequences of serious breaches of obligations to the         mined, like all other obligations, in accordance with Part
                   international community as a whole
                                                                              One of the draft articles.
      “1. This Chapter applies to the international responsibility that
   arises from the serious and manifest breach by a State of an
   obligation owed to the international community as a whole.                 362. Still others viewed the term “crime” as part of
      “2. Such a breach entails, for the State responsible for that           international law, albeit subject to widely differing inter-
   breach, all the legal consequences of any other internationally            pretations. According to one interpretation, the word
   wrongful act and, in addition, [punitive damages] [damages                 “crime” did not have a penal connotation in the context of
   reflecting the gravity of the breach].
                                                                              international law. Instead it was a reference to the gravity
      “3. It also entails, for all other States, the following further
   obligations:                                                               of the conduct of the responsible State. The recognition of
      “(a) Not to recognize as lawful the situation created by the            the existence of a crime arose from the basic proposition
   breach;                                                                    that crimes, such as genocide, could be committed by a
      “(b) Not to render aid or assistance to the State which has             State, and could not be equated with normal, albeit regret-
   committed the breach in maintaining the situation so created;              table, breaches of international obligations.
      “(c) To cooperate in the application of measures designed to
   bring the breach to an end and as far as possible to eliminate its               “(b) On behalf of and with the consent of the injured State,
   consequences.                                                                 reparation for that State in accordance with article 37 bis and
      “4. Paragraphs 2 and 3 are without prejudice to such further               chapter II;
   penal or other consequences that the breach may entail under                     “(c) Where there is no injured State:
   international law.”
   111                                                                              “(c) i“(i) Restitution in the interests of the injured person or
       The text of the additional paragraph to article 40 bis proposed by                     entity, in accordance with article 43, and
the Special Rapporteur reads as follows:
                                                                                    “(c) “(ii) [Punitive damages] [Damages reflecting the gravity of
      “A State referred to in paragraph 2 may seek:                                           the breach], in accordance with article 51, paragraph 2,
      “(a) Cessation of the internationally wrongful act, in accordance                       on condition that such damages shall be used for the
   with article 36 bis;                                                                       benefit of the victims of the breach.”
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<pre>60                       Report of the International Law Commission on the work of its fifty-second session
363. In addition, the view was expressed that the text            368. Others noted that, far from reflecting a dramatic
confused what were different categories, i.e. obligations         new development, the scope of application of the regime
arising from peremptory norms, erga omnes obligations,            being proposed would be very limited, since there were
and collective obligations. It was proposed that further          several regimes to regulate non-compliance in various
study be undertaken on breaches of peremptory norms,              areas of international law already in place, which
and that a saving clause be inserted in the text to the effect    excluded or severely limited such responses. Further-
that the draft articles did not prejudge any further conse-       more, collective countermeasures would be subject to the
quences which could arise in case of a breach of a                basic limitations on countermeasures in chapter II of Part
peremptory norm of international law.                             Two bis, and would only apply to serious, manifest and
                                                                  well-attested breaches. A feasible regime of pacific col-
                                                                  lective countermeasures could be a viable alternative to
(b) Collective countermeasures (articles 50 A and 50 B)           the use of forceable measures to induce a State to return
                                                                  to legality.
364. While different views were expressed in the Com-             369. The preference was expressed for circumscribing
mission regarding the notion of collective counter-               the group of possible States entitled to take collective
measures as found in the text of proposed articles 50 A           countermeasures, to include only a group of States in the
and 50 B, support was voiced for both articles.                   same region. It was also proposed that whenever a proce-
                                                                  dure of collective decision-making was required, such
365. The view was expressed that what the Commission              procedure had to be resorted to before embarking on col-
was doing, rather than codifying the law of State respon-         lective countermeasures. In addition, the principle of non
sibility, was constructing a system of multilateral public        bis in idem could be applied by analogy so as to prevent
order, and that developments in the international legal           the possibility of multiple sanctions for the breach. Fur-
order depended on progress in the international commu-            thermore, the term “collective countermeasures” was
nity and not just in the development of norms. Premature          considered a misnomer, since it implied a link to bilateral
efforts to create rules about collective countermeasures          countermeasures. Instead, the action envisaged was a
could damage both the draft articles and the gradual              reaction to a violation of collective obligations, and could
development of the new notions that had been referred to.         be undertaken by a single State or by a group of States.
                                                                  Support was expressed for an alternative formulation
366. It was also queried how much the question con-               such as “multilateral sanctions”.
cerned the responsibility of States, as opposed to the            370. As to the scope of such measures, the view was
maintenance of international peace and security. In the           expressed that, in most if not all cases, they were resorted
view of some, support for collective countermeasures was          to only to induce cessation of the allegedly wrongful act,
only possible in the context of the action of competent           and not reparation. Therefore, it was proposed that the
international organizations, whether regional or univer-          purpose of collective countermeasures be limited in the
sal; an ad hoc delegation of the right to respond to a group      draft articles to seeking cessation and assurances and
of countries acting outside any institutional ambit was           guarantees of non-repetition. In response, the Special
very difficult to accept. Furthermore, it was suggested           Rapporteur expressed the view that it was difficult to limit
that the draft articles failed to properly distinguish            collective countermeasures to cessation, since there may
between individual countermeasures, whether taken by              be situations of restitution after the wrongful act ceased.
one State or by a group of States, on the one hand, and           For example, after a crime against humanity had ceased,
other existing institutions, such as collective self-defence      its consequences, such as massive displacement of the tar-
and various collective security arrangements. Indeed a            get population, continued.
violation of obligations erga omnes could be of such mag-
nitude as to prompt measures under Article 51 or Chap-            371. Some members pointed out that article 50 A raised
ter VII or VIII of the Charter of the United Nations.             the same concerns as those in cases of an invitation by a
                                                                  State to others in the exercise of self-defence, or interven-
367. The view was further expressed that the analysis of          tion by invitation in humanitarian cases. Caution was
State practice neither demonstrated nor justified the exist-      advised: where a State suffered no direct harm, there was
ence of a group of legal measures accepted by all States,         a need to limit its involvement. However, article 50 A was
so as to establish “collective countermeasures” as a new          open-ended and could be misused. In addition, a reference
legal institution. On the other hand, issue was taken with        to the gravity of the breach was necessary, since the pro-
the statement that such measures were limited to the              posed text seemed to allow such collective countermeas-
actions of Western States. Various examples of collective         ures irrespective of the gravity of the breach, and subject
countermeasures taken by non-Western States demon-                only to the test of proportionality. Indeed it was suggested
strated the contrary. Others took the view that the review        that the distinction between articles 50 A and 50 B was
of State practice did not reveal the existence of collective      marginal and even artificial. The two proposals shared the
countermeasures, but rather politically motivated mea-            same point of departure: that there was a breach of an
sures. This view did not reflect a universal opinion among        essential and important rule that concerned the interna-
States, or in the decisions of, for example, the Commis-          tional community as a whole, and which justified a reac-
sion on Human Rights. The Special Rapporteur noted that           tion by all the members of the community. States other
in giving examples of such collective measures, he had            than the injured State intervened not on its behalf, under
not taken, and he did not expect the Commission to take,          article 50 A, but as members of the international commu-
any position on their lawfulness. He had cited them rather        nity, whose interests had been threatened. Such action
to illustrate the context in which the issues had arisen.         could be aimed at the cessation of the breach, guarantees
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<pre>                                                         State responsibility                                                    61
and assurances of non-repetition and reparation. If the              vided for in the Charter of the United Nations. There was
obligation was owed to the international community as a              no imperative need to create such a parallel system.
whole all States could take collective countermeasures
under article 50 A. By contrast the Special Rapporteur               375. Others thought the proposals did not go far
pointed out that article 50 A covered a completely differ-           enough. While the commission of a crime could not in
ent situation than article 50 B. Article 50 A related to the         itself be a basis for the autonomous competence of inter-
situation where there was an obligation to a group of                national courts, it opened the way for an actio popularis.
States, and a particular State was specifically injured by           Furthermore, it was possible to foresee a form of dispute
that breach. The other States parties to that obligation             settlement on the analogy of article 66 of the 1969 Vienna
could take collective countermeasures on behalf of that              Convention. Moreover, the existence of the crime had
State, to the extent that State agreed, and within the sphere        implications with regard to the choice as between forms
of action open to that State. Several States, sharing the            of reparation: in particular, the State directly injured could
same collective interest, were responding to a single                not renounce full restitution, since it was the interests of
breach on behalf of the particular victim. This had nothing          the international community as a whole that were being
to do with grave breaches of community obligations cov-              protected.
ered by article 51. As formulated, article 50 B was con-             376. With regard to paragraph 1, it was observed that
cerned only with the case where there was no injured State           the title of chapter III, “Serious breaches of obligations to
in the sense of article 40 bis, paragraph 1. As such, article        the international community as a whole” did not corre-
50 A had a much wider application.                                   spond to the formula used in paragraph 1, which referred
                                                                     to “serious and manifest” breach. The word “manifest”
372. Regarding article 50 B, the view was expressed                  was considered problematic since it implied that blatant
that the philosophy underlying the judgment of ICJ, in the           actions by a State were qualitatively worse than subtle or
South West Africa cases,112 that States could only act               concealed ones. It was suggested that the breach be qual-
where their national interest was involved had been a                ified as “well-attested” or “reliably attested”.
blow to international law, and the disavowal of that
approach implied by the various articles under discussion            377. The view was further expressed that paragraph 1
was welcomed. It was queried whether the concept of the              should constitute a separate article, and that its contents
interest of the international community as a whole had               be expanded along the lines of article 19, paragraph 2, as
become a fixed concept, and whether it necessarily                   adopted on first reading. Furthermore, the article could
implied the existence of a dispute settlement procedure to           contain a non-exhaustive enumeration of most of the seri-
ascertain such interest. Furthermore, the question was               ous breaches, as had been the case in article 19, para-
posed whether it was correct to make reference to the                graph 3. The Special Rapporteur agreed with the idea of
interests of the victims. In cases such as genocide, the             separating article 51 into two articles, with additional
entire international community was concerned. Others                 elements included within it. However, in common with
disagreed; the concrete interest of the victims of such a            many members, he was opposed to including an article in
breach should be paramount, and therefore provision                  Part One, or to giving specific examples in the text as
should be made to allow intervention on behalf of the vic-           distinct from the commentary.
tims, and to obtain reparation on their behalf.
                                                                     378. Concerning paragraph 2, while caution was
373. As to the formulation of article 50 B, the view was             advised when dealing with the reference to “punitive
expressed that its title was too broad, since it could               damages”, support was expressed for retaining the refer-
equally cover cases under article 50 A. Paragraph 1                  ence in the text, which rectified an omission in article 19.
should also refer to assurances and guarantees of non-rep-           However, the view was expressed that such reference had
etition. The term “victims” had criminal connotations,               too great a penal connotation, and was not confirmed by
and could be replaced by another formula.                            existing practice. The example of article 228 of the Treaty
                                                                     establishing the European Community (revised number-
                                                                     ing in accordance with the Treaty of Amsterdam), cited in
 (c) Consequences of serious breaches of obligations to              paragraph 382 of the third report, was considered a spe-
    the international community as a whole (article 51)              cial case and not at all indicative of a trend in general
                                                                     international law. Doubt was further expressed regarding
                                                                     the practicalities of implementing the provision, since it
374. A measure of agreement was expressed with the                   was linked to the possibility of an institutionalized
proposal of the Special Rapporteur, which was generally              response to international crimes of States. Preference was
considered to be an improvement on article 19, and repre-            expressed for the alternative formulation “damages
sented a balanced compromise. Others disagreed                       reflecting the gravity of the breach”.
strongly: creating distinctions in Part Two based on qual-
itative distinctions in the primary rules, was little different      379. In relation to paragraph 3, subparagraph (a), it was
from creating new rules. It amounted to reintroducing                pointed out that the obligation of non-recognition was
article 19 through the back door and was outside the scope           based on extensive practice, and that such non-recogni-
even of progressive development, let alone codification.             tion in the legal context was more a reaction to the inval-
Furthermore, article 51 presupposed the establishment of             idity of an act, not only to its illegality.
a system of collective sanctions of an essentially punitive          380. The question was raised whether subparagraph (b)
nature, identifiable with the enforcement measures pro-              was not covered by article 27, in chapter IV of Part One,
                                                                     since it entailed participation in the wrongful act. In
   112
       See footnote 67 above.                                        response, the Special Rapporteur noted that the emphasis
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<pre>62                        Report of the International Law Commission on the work of its fifty-second session
in article 27 was on aid or assistance in respect of the com-      had proposed alternative solutions, such as encapsulating
mission of the wrongful act, whereas the emphasis in sub-          the issue in a single saving clause. While he shared some
paragraph (b) was the situation created as a result of the         of the concerns expressed, he felt it worthwhile to proceed
act. In many cases it would not make a difference because          along the lines of his compromise proposal, at least for the
the primary obligation, which was a continuing obliga-             purposes of receiving comments from the Sixth Commit-
tion, would be breached in relation to the continuing              tee, and because it reflected a compromise position
situation. However, other cases could be envisaged, for            between the starkly contrasting views expressed in the
example, past behaviour amounting to a crime against               Commission. While the time was not yet ripe for an
humanity causing a population to flee to another State.            elaborated regime of “crimes”, there was general agree-
The question was whether the population was to be                  ment that it was appropriate to include the basic concept
allowed to return once the behaviour had ceased. In such           that there were obligations which States held to the inter-
contexts subparagraph (b) had a role to play.                      national community as a whole, and which were by
                                                                   definition serious, and their breach therefore concerned
381. The view was expressed that subparagraph (c) was              all States. While minor breaches of such obligations could
problematic since it could lead to the interpretation that         occur (e.g. isolated cases of inhuman treatment, not
States would be obliged to cooperate with another State            warranting any multilateral response), in other cases the
unilaterally taking countermeasures. Likewise, its impli-          definition of the obligations themselves, such as with
cations for the law of neutrality were not clear. As a             genocide and aggression, ensured that the breaches in
minimum, subparagraph (c) should be limited only to                question would be serious.
those actions which the responding State was entitled to
take under international law.                                      385. With regard to collective countermeasures, the
                                                                   Special Rapporteur pointed to the significant level of
382. As to paragraph 4, the view was expressed that it             approval of his proposals for articles 50 A and 50 B, not-
was not clear what “penal consequences” were being                 withstanding some of the concerns that had been
referred to. Strong reservations were expressed regarding          expressed. There was clear practice to the effect that
the existence of “penal” consequences in international             where a State was individually injured and was individ-
law with regard to States. It was further considered appro-        ually entitled to take countermeasures, another State with
priate to leave the indication of further consequences to          a legal interest in the norm violated could be allowed to
future developments, although it had to be recognized that         assist.
it was likely that such developments would occur in
regard to specific types of breaches. Indeed, paragraph 4          386. Article 50 B was a modified and reduced form of
was strictly unnecessary since, irrespective of the form of        what existed on first reading, and was broadly accepted,
the draft articles, they could not prevent the development         this acceptance extending to several members who
of either customary or conventional law.                           seemed to favour countermeasures only when they were
                                                                   multilateral. While he did not favour limiting those forms
383. It was further suggested that provision be made in            of multilateral reactions to a single region, he accepted the
article 51 to the effect that individuals involved in the          point that such measures undertaken in a single region
commission of a serious breach by a State would not be             may be a reflection of a community concern. He also
entitled to rely, in criminal or civil proceedings in another      agreed with the view that responses to breaches of obliga-
State, on the fact that they had acted as State organs; it was     tions to the international community as a whole could be
paradoxical for international law to protect conduct which         responses taken by one State, although they could also be
at the same time it particularly condemned. Moreover               taken by a number of States.
such a provision would insert a significant deterrent
aspect into the text. In response, the Special Rapporteur          387. In connection with article 51, the Special Rappor-
noted that such proposal was not properly a matter of              teur noted that general support was expressed for trans-
State responsibility, but rather one of individual criminal        mitting the text to the Drafting Committee, and he indi-
responsibility. Furthermore, he did not support the idea           cated his willingness to consider splitting the article into
that the State became “transparent” only in extreme cases.         two or more provisions, as had been suggested. He did not
Instead, for breaches of international law a State was             favour the idea of relabelling article 51 by reference to the
always transparent qua State, i.e. it was always account-          notion of “essential” obligations. There were many obli-
able for its acts, and individuals, whether or not they            gations which were “essential” to the international com-
undertook State functions, were generally accountable for          munity, but the individual relationships were essentially
their acts in terms of the existing rules of international         bilateral, e.g. in the case of diplomatic immunity. Instead,
criminal law. It would be confusing to deprive them of an          the core concept had to be that of the Barcelona Traction
immunity which international criminal law had never,               case,113 i.e. obligations to the international community as
since 1945, recognized.                                            a whole in which every State individually had an interest
                                                                   in compliance.
                                                                   388. He fully accepted that the definition of the cat-
21. SPECIAL RAPPORTEUR ’S CONCLUDING REMARKS ON THE
                                                                   egory in article 51, paragraph 1, could be improved by
   DEBATE ON THE INVOCATION OF RESPONSIBILITY TO A
                                                                   reference to some of the content of article 19, para-
   GROUP OF STATES OR TO THE INTERNATIONAL COMMU-
                                                                   graph 2, as adopted on first reading. Although article 51,
   NITY
                                                                   paragraph 4, was not necessary in the light of article 38,
384. The Special Rapporteur referred to the views of               as adopted on first reading, he preferred its retention
those members who had expressed scepticism or doubt
about the compromise approach being proposed, and who                 113
                                                                          See footnote 43 above.
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<pre>                                                                 State responsibility                                                               63
given future possibilities in the field. However, he did not                   (c) Rules determining the content of any international
feel strongly about the term “penal”, especially since its                                           obligation (article B)
deletion would not affect the operation of the provision.
Neither did he oppose the deletion of the reference to                       392. The Special Rapporteur suggested that the Com-
“punitive” consequences.                                                     mission could consider a complementary provision to
389. With regard to the question of the “transparency”                       article 30, paragraph 5, of the 1969 Vienna Convention,
of the State, and the alleged consequence of serious                         saving the law of treaties. However, the draft articles on
breaches of essential obligations involving individual                       State responsibility were not concerned with the existence
criminal responsibility, he reiterated the view that the                     or content of a primary obligation, but instead with the
issue should not be included in the draft articles, since it                 consequences of the breach. He thus proposed a more
was concerned either with the category of individual                         general formulation, as article B,117 applying not only to
criminal responsibility of persons, or alternatively the cat-                the law of treaties, but also to customary international law.
egory of State immunity. He preferred to reserve the legal
position, which had, at any rate, been under consideration                     (d) Relationship to the Charter of the United Nations
in the context of the Rome Statute of the International                                                     (article 39)
Criminal Court, particularly in the context of article 27
combined with article 98.
                                                                             393. Article 39, as adopted on first reading, had been
                                                                             the subject of severe criticism, including by the previous
 22. INTRODUCTION BY THE SPECIAL RAPPORTEUR OF THE                           Special Rapporteur, Mr. Arangio-Ruiz. The current Spe-
               GENERAL PROVISIONS (PART FOUR)                                cial Rapporteur agreed with those criticisms, and there-
                                                                             fore proposed a simpler version of article 39,118 which
                                                                             could not be viewed as a covert amendment to the Charter
  (a) Special provisions made by other applicable rules                      of the United Nations.
                               (article 37)
390. The Special Rapporteur stated that the Commis-                                                (e) Other saving clauses
sion had agreed to the inclusion of a lex specialis provi-
sion, based on article 37 adopted on first reading. He pro-                  394. In the Special Rapporteur’s view, the above-men-
posed a reformulation of article 37114 since it was not                      tioned saving clauses were the only necessary clauses. For
enough that there was a provision in an international                        the reasons stipulated in paragraph 428 of his report, he
treaty or elsewhere that dealt with the particular point for                 did not support the inclusion of saving clauses on diplo-
it to be lex specialis. Instead, it had to deal with the point               matic protection, or relating to questions of invalidity and
in such a manner that it could be said on the interpretation                 non-recognition, or non-retroactivity. A definition clause
of the provision that it intended to exclude other conse-                    was also unnecessary. However, if the Commission even-
quences. That aspect was missing from the formulation on                     tually were to decide in favour of a set of draft articles in
first reading and was incorporated in his proposal.                          the form of a draft convention, other provisions would be
                                                                             needed.
          (b) Responsibility of or for the conduct of
           an international organization (article A)
                                                                                    23. SUMMARY OF THE DEBATE ON THE GENERAL
                       115                                                                         PROVISIONS (PART FOUR)
391. Article A, dealing with the responsibility of or
for the conduct of an international organization, had been
provisionally adopted by the Drafting Committee at the                          (a) Special provisions made by other applicable rules
fiftieth session,116 and had been generally supported by                                                    (article 37)
the Commission.
                                                                             395. Support was expressed for the Special Rappor-
                                                                             teur’s reformulation of the provision. It was pointed out
   114
       The text of article 37 proposed by the Special Rapporteur reads       that the legal solution based on interpretation, as sug-
as follows:
    “Article 37. Special provisions made by other applicable rules              117
                                                                                    The text of article B proposed by the Special Rapporteur reads as
      “The provisions of these articles do not apply where and to the        follows:
   extent that the conditions for or the legal consequences of an
   internationally wrongful act of a State have been exclusively                            “Article B. Rules determining the content
   determined by other rules of international law relating to that act.”                           of any international obligation
For the analysis of this article by the Special Rapporteur, see                    “These articles are without prejudice to any question as to the
paragraphs 415 to 421 of his third report.                                      existence or content of any international obligation of a State, the
   115                                                                          breach of which may give rise to State responsibility.”
       The text of article A proposed by the Special Rapporteur reads as        118
follows:                                                                            The text of article 39 proposed by the Special Rapporteur reads
             “Article A. Responsibility of or for the conduct                as follows:
                     of an international organization                             “Article 39. Relationship to the Charter of the United Nations
      “These articles shall not prejudge any question that may arise in            “The legal consequences of an internationally wrongful act of a
   regard to the responsibility under international law of an                   State under these articles are without prejudice to article 103 of the
   international organization, or of any State for the conduct of an            Charter of the United Nations.”
   international organization.”                                              For the analysis of this article by the Special Rapporteur, see
   116                                                                       paragraphs 422 to 426 of his third report.
       See Yearbook . . . 1998, vol. I, 2562nd meeting, p. 288, para. 72.
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<pre>64                        Report of the International Law Commission on the work of its fifty-second session
gested by the Special Rapporteur, was the sole plausible           the Charter. While that was understandable under the
approach to the question of the relationship between the           1969 Vienna Convention, since Article 103 had to do with
lex specialis regimes and the general regime of State              the precedence of treaties among each other, that was not
responsibility. Different views were expressed as to the           the case in the context of State responsibility. All that
term “to the extent that”: some thought it confusing and           needed to be stated was that it was without prejudice to
unnecessary, others thought it useful since other rules of         the Charter.
international law could be partially applicable to the same
wrongful conduct. Therefore, the word “exclusively” was                                (e) Other saving clauses
inappropriate. It was also queried whether the words “the
conditions for or the legal consequences of an internation-        400. While support was expressed for the Special Rap-
ally wrongful act” included the definition of such an act,         porteur’s proposal not to include a saving clause on diplo-
the general principles, the act of the State under interna-        matic protection, a preference was expressed for includ-
tional law and the breach itself.                                  ing such a clause, although in Part Two bis, not Part Four.
       (b) Responsibility of or for the conduct of an              401. It was observed that, if the final text of the draft
           international organization (article A)                  articles were to take the form of a declaration, a provision
                                                                   on non-retroactivity should not be included, in the expec-
                                                                   tation that the draft articles would be considered declara-
396. Support was expressed for the proposed article,               tory of existing law, and therefore would have a retroac-
and it was noted that the topic of the responsibility of           tive effect. Conversely, if the final form was a treaty then
international organizations could be taken up by the Com-          more provisions, including a non-retroactivity clause,
mission in the future.                                             would be needed.
         (c) Rules determining the content of any
            international obligation (article B)                        24. SPECIAL RAPPORTEUR ’S CONCLUDING REMARKS
                                                                            ON THE GENERAL PROVISIONS (PART FOUR)
397. Support was expressed for the inclusion of the pro-
vision in the draft articles.                                      402. The Special Rapporteur noted that there had been
                                                                   general approval of the texts he had proposed for Part
   (d) Relationship to the Charter of the United Nations           Four.
                         (article 39)
                                                                   403. For the reasons given by some of the members, he
                                                                   did not favour the deletion of article 39, especially in
398. Support was expressed for the Special Rappor-                 regard to the extensive debate the article had attracted
teur’s reformulation of the provision, which was consid-           during the first reading. Instead, a simple version was
ered to be a better text than that adopted on first reading.       more appropriate.
The view was also expressed that if the draft articles were
to be adopted in the form of a declaration, there would be
no need for the inclusion of a provision on the relationship       404. Concerning article 37, and in response to the sug-
with the Charter of the United Nations. Moreover, Article          gestion that the word “exclusively” was not necessary in
103 of the Charter was sufficient to resolve the matter, and       the light of the reference to “the extent that”, while the
article 39 would not be needed. According to a different           matter was more one of drafting, it had to be accepted that
view, article 39 was particularly important to ensure that         the fact that a particular norm attached a particular conse-
Article 103 would prevail over the instrument in which             quence was not by itself sufficient to trigger the lex
the draft articles were to be embodied.                            specialis principle. An additional element was required,
                                                                   i.e. that the provision intended to exclude other conse-
399. In addition, it was observed that the issue was more          quences, which was conveyed by the phrase “exclu-
complex since the draft articles on State responsibility           sively”.
and the Charter of the United Nations were situated on
different levels. Support was therefore expressed for              405. In completing this review of the draft articles
retaining such an article, albeit in a less restrictive form       adopted on first reading, he thanked the members of the
since the proposed text for article 39 was limited to the          Commission for their patience faced with a large volume
consequences of an internationally wrongful act. Like-             of material and many difficult issues, as well as the secre-
wise, there was no reason to confine it to Article 103 of          tariat and his own assistants.
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<pre>                                                                 State responsibility                                                   65
                                                                      ANNEX
                  DRAFT ARTICLES PROVISIONALLY ADOPTED BY THE DRAFTING
                                           COMMITTEE ON SECOND READING119
                                                       STATE RESPONSIBILITY
                               Part One                                      ered an act of that State under international law, whether
                                                                             the organ exercises legislative, executive, judicial or any
       THE INTERNATIONALLY WRONGFUL                                          other functions, whatever position it holds in the organiz-
                        ACT OF A STATE                                       ation of the State, and whatever its character as an organ
                                                                             of the central Government or of a territorial unit of the
                              CHAPTER I                                      State.
                     GENERAL PRINCIPLES                                      2. For the purposes of paragraph 1, an organ includes
                                                                             any person or body which has that status in accordance
            Article 1. Responsibility of a State for                         with the internal law of the State.
                its internationally wrongful acts
    Every internationally wrongful act of a State entails the                Article 5 [7]. Attribution to the State of the conduct of
international responsibility of that State.                                     entities exercising elements of the governmental
                                                                                authority
      Article 2 [3]. 120 Elements of an internationally                         The conduct of an entity which is not an organ of the
                      wrongful act of a State                                State under article 4 [5] but which is empowered by the
                                                                             law of that State to exercise elements of the governmental
    There is an internationally wrongful act of a State                      authority shall be considered an act of the State under
when conduct consisting of an action or omission:                            international law, provided the entity was acting in that
                                                                             capacity in the case in question.
    (a) Is attributable to the State under international law;
and
    (b) Constitutes a breach of an international obligation                  Article 6 [8]. Attribution to the State of conduct in fact
of the State.                                                                   carried out on its instructions or under its direction or
                                                                                control
                                                                                The conduct of a person or group of persons shall be
           Article 3 [4]. Characterization of an act                         considered an act of the State under international law if
            of a State as internationally wrongful                           the person or group of persons was in fact acting on the
    The characterization of an act of a State as internation-                instructions of, or under the direction or control of, that
ally wrongful is governed by international law. Such char-                   State in carrying out the conduct.
acterization is not affected by the characterization of the
same act as lawful by internal law.
                                                                             Article 7 [8]. Attribution to the State of certain conduct
                                                                               carried out in the absence of the official authorities
                              CHAPTER II                                        The conduct of a person or group of persons shall be
             THE ACT OF THE STATE UNDER                                      considered an act of the State under international law if
                                                                             the person or group of persons was in fact exercising ele-
                     INTERNATIONAL LAW
                                                                             ments of the governmental authority in the absence or
                                                                             default of the official authorities and in circumstances
           Article 4 [5]. Attribution to the State of                        such as to call for the exercise of those elements of
                     the conduct of its organs                               authority.
1. For the purposes of the present articles, the conduct
of any State organ acting in that capacity shall be consid-                    Article 8 [9]. Attribution to the State of the conduct
                                                                                  of organs placed at its disposal by another State
   119
       For the statement of the Chairman of the Drafting Committee
introducing its report, see Yearbook . . . 2000, vol. I, 2662nd meeting.        The conduct of an organ placed at the disposal of a
   120
       The numbers in square brackets correspond to the numbers of the       State by another State shall be considered an act of the for-
articles adopted on first reading.                                           mer State under international law if the organ was acting
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<pre>66                        Report of the International Law Commission on the work of its fifty-second session
in the exercise of elements of the governmental authority               Article 14 [24]. Extension in time of the breach
of the State at whose disposal it had been placed.                                 of an international obligation
                                                                   1. The breach of an international obligation by an act of
Article 9 [10]. Attribution to the State of the conduct of         a State not having a continuing character occurs at the
   organs acting outside their authority or contrary to            moment when the act is performed, even if its effects
   instructions                                                    continue.
   The conduct of an organ of a State or of an entity              2. The breach of an international obligation by an act of
empowered to exercise elements of the governmental                 a State having a continuing character extends over the
authority, such organ or entity having acted in that capa-         entire period during which the act continues and remains
city, shall be considered an act of the State under interna-       not in conformity with the international obligation.
tional law even if, in the particular case, the organ or
entity exceeded its authority or contravened instructions          3. The breach of an international obligation requiring a
concerning its exercise.                                           State to prevent a given event occurs when the event
                                                                   occurs and extends over the entire period during which
                                                                   the event continues and remains not in conformity with
    Article 10 [14, 15]. Conduct of an insurrectional              what is required by that obligation.
                     or other movement
1. The conduct of an insurrectional movement, which                  Article 15 [25]. Breach consisting of a composite act
becomes the new Government of a State shall be con-
sidered an act of that State under international law.              1. The breach of an international obligation by a State
                                                                   through a series of actions or omissions defined in aggre-
2. The conduct of a movement, insurrectional or other,             gate as wrongful, occurs when the action or omission
which succeeds in establishing a new State in part of the          occurs which, taken with the other actions or omissions,
territory of a pre-existing State or in a territory under its      is sufficient to constitute the wrongful act.
administration shall be considered an act of the new State
under international law.                                           2. In such a case, the breach extends over the entire
                                                                   period starting with the first of the actions or omissions of
3. This article is without prejudice to the attribution to a       the series and lasts for as long as these actions or omis-
State of any conduct, however related to that of the move-         sions are repeated and remain not in conformity with the
ment concerned, which is to be considered an act of that           international obligation.
State by virtue of articles 4 [5] to 9 [10].
                                                                                               CHAPTER IV
        Article 11. Conduct which is acknowledged
            and adopted by the State as its own                          RESPONSIBILITY OF A STATE IN RESPECT
                                                                              OF THE ACT OF ANOTHER STATE
   Conduct which is not attributable to a State under arti-
cles 4 [5], 5 [7], 6 [8], 7 [8], 8 [9], or 10 [14, 15] shall
nevertheless be considered an act of that State under inter-        Article 16 [27]. Aid or assistance in the commission of
national law if and to the extent that the State acknow-                         an internationally wrongful act
ledges and adopts the conduct in question as its own.
                                                                       A State which aids or assists another State in the com-
                                                                   mission of an internationally wrongful act by the latter is
                                                                   internationally responsible for doing so if:
                         CHAPTER III
                                                                       (a) That State does so with knowledge of the circum-
  BREACH OF AN INTERNATIONAL OBLIGATION                            stances of the internationally wrongful act; and
                                                                       (b) The act would be internationally wrongful if com-
      Article 12 [16, 17, 18]. Existence of a breach               mitted by that State.
               of an international obligation
   There is a breach of an international obligation by a           Article 17 [28]. Direction and control exercised over the
State when an act of that State is not in conformity with                commission of an internationally wrongful act
what is required of it by that obligation, regardless of its
origin or character.                                                   A State which directs and controls another State in the
                                                                   commission of an internationally wrongful act by the lat-
                                                                   ter is internationally responsible for that act if:
         Article 13 [18]. International obligation
                    in force for the State                             (a) That State does so with knowledge of the circum-
                                                                   stances of the internationally wrongful act; and
   An act of a State shall not be considered a breach of an
international obligation unless the State is bound by the              (b) The act would be internationally wrongful if com-
obligation in question at the time the act occurs.                 mitted by that State.
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<pre>                                                       State responsibility                                                    67
        Article 18 [28]. Coercion of another State                                   Article 25 [32]. Distress
    A State which coerces another State to commit an act           1. The wrongfulness of an act of a State not in con-
is internationally responsible for that act if:                    formity with an international obligation of that State is
                                                                   precluded if the author of the act in question had no other
    (a) The act would, but for the coercion, be an interna-        reasonable way, in a situation of distress, of saving the
tionally wrongful act of the coerced State; and                    author’s life or the lives of other persons entrusted to the
    (b) The coercing State does so with knowledge of the           author’s care.
circumstances of the act.                                          2.    Paragraph 1 does not apply if:
                                                                      (a) The situation of distress results, either alone or in
             Article 19. Effect of this chapter                    combination with other factors, from the conduct of the
    This chapter is without prejudice to the international         State invoking it; or
responsibility, under other provisions of the present arti-           (b) The act in question was likely to create a compa-
cles, of the State which commits the act in question, or of        rable or greater peril.
any other State.
                                                                                Article 26 [33]. State of necessity
                         CHAPTER V
                                                                   1. Necessity may not be invoked by a State as a ground
                                                                   for precluding the wrongfulness of an act not in conformity
        CIRCUMSTANCES PRECLUDING WRONGFULNESS                      with an international obligation of that State unless the act:
                  Article 20 [29]. Consent                            (a) Is the only means for the State to safeguard an
                                                                   essential interest against a grave and imminent peril; and
    Valid consent by a State to the commission of a given
act by another State precludes the wrongfulness of that act           (b) Does not seriously impair an essential interest of
in relation to the former State to the extent that the act         the State or States towards which the obligation exists, or
remains within the limits of that consent.                         of the international community as a whole.
                                                                   2. In any case, necessity may not be invoked by a State
                                                                   as a ground for precluding wrongfulness if:
     Article 21. Compliance with peremptory norms
                                                                      (a) The international obligation in question arises
    The wrongfulness of an act of a State is precluded if the      from a peremptory norm of general international law;
act is required in the circumstances by a peremptory norm
of general international law.                                         (b) The international obligation in question excludes
                                                                   the possibility of invoking necessity; or
               Article 22 [34]. Self-defence                          (c) The State has contributed to the situation of
                                                                   necessity.
    The wrongfulness of an act of a State is precluded if the
act constitutes a lawful measure of self-defence taken in
conformity with the Charter of the United Nations.                        Article 27 [35]. Consequences of invoking a
                                                                             circumstance precluding wrongfulness
Article 23 [30]. Countermeasures in respect of an inter-              The invocation of a circumstance precluding wrong-
                  nationally wrongful act                          fulness under this chapter is without prejudice to:
    The wrongfulness of an act of a State not in conformity           (a) Compliance with the obligation in question, if and
with its international obligations to another State is pre-        to the extent that the circumstance precluding wrongful-
cluded if and to the extent that the act constitutes a             ness no longer exists;
countermeasure directed towards the latter State under the            (b) The question of compensation for any material
conditions set out in articles 50 [47] to 55 [48].                 harm or loss caused by the act in question.
              Article 24 [31]. Force majeure
                                                                                             Part Two
1. The wrongfulness of an act of a State not in conform-
ity with an international obligation of that State is pre-                    CONTENT OF INTERNATIONAL
cluded if the act is due to force majeure, that is the occur-                  RESPONSIBILITY OF A STATE
rence of an irresistible force or of an unforeseen event,
beyond the control of the State, making it materially                                       CHAPTER I
impossible in the circumstances to perform the obligation.
                                                                                    GENERAL PRINCIPLES
2.    Paragraph 1 does not apply if:
    (a) The occurrence of force majeure results, either                      Article 28 [36]. Legal consequences of
alone or in combination with other factors, from the con-                        an internationally wrongful act
duct of the State invoking it; or
                                                                      The international responsibility of a State which arises
    (b) The State has assumed the risk of that occurrence.         from an internationally wrongful act in accordance with
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<pre>68                        Report of the International Law Commission on the work of its fifty-second session
the provisions of Part One entails legal consequences as                                        CHAPTER II
set out in this Part.
                                                                                 THE FORMS OF REPARATION
     Article 29 [36]. Duty of continued performance                           Article 35 [42]. Forms of reparation
    The legal consequences of an internationally wrongful              Full reparation for the injury caused by the internatio-
act under this Part do not affect the continued duty of the        nally wrongful act shall take the form of restitution, com-
responsible State to perform the obligation breached.              pensation and satisfaction, either singly or in combina-
                                                                   tion, in accordance with the provisions of the present
                                                                   chapter.
     Article 30 [41, 46]. Cessation and non-repetition
    The State responsible for the internationally wrongful                           Article 36 [43]. Restitution
act is under an obligation:                                            A State responsible for an internationally wrongful act
                                                                   is under an obligation to make restitution, that is, to re-
    (a) To cease that act, if it is continuing;                    establish the situation which existed before the wrongful
                                                                   act was committed, provided and to the extent that resti-
    (b) To offer appropriate assurances and guarantees of          tution:
non-repetition, if circumstances so require.
                                                                       (a) Is not materially impossible;
                 Article 31 [42]. Reparation                           (b) Would not involve a burden out of all proportion to
                                                                   the benefit deriving from restitution instead of compensa-
1. The responsible State is under an obligation to make            tion.
full reparation for the injury caused by the internationally
wrongful act.
                                                                                  Article 37 [44]. Compensation
2. Injury consists of any damage, whether material or              1. The State responsible for an internationally wrongful
moral, arising in consequence of the internationally               act is under an obligation to compensate for the damage
wrongful act of a State.                                           caused thereby, insofar as such damage is not made good
                                                                   by restitution.
        Article 32 [42]. Irrelevance of internal law               2. The compensation shall cover any financially asses-
                                                                   sable damage including loss of profits insofar as it is esta-
    The responsible State may not rely on the provisions of        blished.
its internal law as justification for failure to comply with
its obligations under this Part.
                                                                                    Article 38 [45]. Satisfaction
        Article 33 [38]. Other consequences of an                  1. The State responsible for an internationally wrongful
                internationally wrongful act                       act is under an obligation to give satisfaction for the injury
                                                                   caused by that act insofar as it cannot be made good by
    The applicable rules of international law shall continue       restitution or compensation.
to govern the legal consequences of an internationally
wrongful act of a State not set out in the provisions of this      2. Satisfaction may consist in an acknowledgement of
Part.                                                              the breach, an expression of regret, a formal apology or
                                                                   another appropriate modality.
 Article 34. Scope of international obligations covered            3. Satisfaction shall not be out of proportion to the
                          by this Part                             injury and may not take a form humiliating to the respon-
                                                                   sible State.
1. The obligations of the responsible State set out in this
Part may be owed to another State, to several States, or to                                Article 39. Interest
the international community as a whole, depending on the
character and content of the international obligation and          1. Interest on any principal sum payable under this
on the circumstances of the breach, and irrespective of            chapter shall be payable when necessary in order to
whether a State is the ultimate beneficiary of the obliga-         ensure full reparation. The interest rate and mode of cal-
tion.                                                              culation shall be set so as to achieve that result.
2. This Part is without prejudice to any right, arising            2. Interest runs from the date when the principal sum
from the international responsibility of a State, which            should have been paid until the date the obligation to pay
accrues directly to any person or entity other than a State.       is fulfilled.
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<pre>                                                               State responsibility                                                    69
         Article 40 [42]. Contribution to the damage                           (a) That State individually; or
     In the determination of reparation, account shall be                      (b) A group of States including that State, or the inter-
taken of the contribution to the damage by wilful or negli-                national community as a whole, and the breach of the
gent action or omission of the injured State or any person                 obligation:
or entity in relation to whom reparation is sought.
                                                                               i(i) Specially affects that State; or
                             CHAPTER III                                       (ii) Is of such a character as to affect the enjoyment of
                                                                                    the rights or the performance of the obligations of
   SERIOUS BREACHES OF ESSENTIAL OBLIGA-                                            all the States concerned.
  TIONS TO THE INTERNATIONAL COMMUNITY
                                                                                    Article 44. Invocation of responsibility by
            Article 41. Application of this chapter                                                an injured State
1. This chapter applies to the international responsibil-                  1. An injured State which invokes the responsibility of
ity arising from an internationally wrongful act that con-                 another State shall give notice of its claim to that State.
stitutes a serious breach by a State of an obligation owed
to the international community as a whole and essential                    2.    The injured State may specify in particular:
for the protection of its fundamental interests.
                                                                               (a) The conduct that the responsible State should take
2. A breach of such an obligation is serious if it involves                in order to cease the wrongful act, if it is continuing;
a gross or systematic failure by the responsible State to
fulfil the obligation, risking substantial harm to the funda-                  (b) What form reparation should take.
mental interests protected thereby.
                                                                                      Article 45 [22]. Admissibility of claims
 Article 42 [51, 53]. Consequences of serious breaches
of obligations to the international community as a whole                       The responsibility of a State may not be invoked if:
1. A serious breach within the meaning of article 41                           (a) The claim is not brought in accordance with any
may involve, for the responsible State, damages reflecting                 applicable rule relating to the nationality of claims;
the gravity of the breach.
                                                                               (b) The claim is one to which the rule of exhaustion of
2.     It entails, for all other States, the following obligations:        local remedies applies, and any available and effective
                                                                           local remedy has not been exhausted.
     (a) Not to recognize as lawful the situation created by
the breach;
                                                                              Article 46. Loss of the right to invoke responsibility
     (b) Not to render aid or assistance to the responsible
State in maintaining the situation so created;                                 The responsibility of a State may not be invoked if:
     (c) To cooperate as far as possible to bring the breach                   (a) The injured State has validly waived the claim in
to an end.                                                                 an unequivocal manner;
3. This article is without prejudice to the consequences                       (b) The injured State is to be considered as having, by
referred to in chapter II and to such further consequences                 reason of its conduct, validly acquiesced in the lapse of
that a breach to which this chapter applies may entail                     the claim.
under international law.
                                                                           Article 47. Invocation of responsibility by several States
                            Part Two bis*
                                                                               Where several States are injured by the same interna-
                THE IMPLEMENTATION OF                                      tionally wrongful act, each injured State may separately
                   STATE RESPONSIBILITY                                    invoke the responsibility of the State which has commit-
                                                                           ted the internationally wrongful act.
                              CHAPTER I
         INVOCATION OF THE RESPONSIBILITY                                             Article 48. Invocation of responsibility
                             OF A STATE                                                         against several States
               Article 43 [40]. The injured State                          1. Where several States are responsible for the same
                                                                           internationally wrongful act, the responsibility of each
     A State is entitled as an injured State to invoke the re-             State may be invoked in relation to that act.
sponsibility of another State if the obligation breached is
owed to:                                                                   2.    Paragraph 1:
   ∗
      The Commission has set aside Part Three (Settlement of Disputes)         (a) Does not permit any injured State to recover, by
of the draft articles adopted on first reading. Hence the gap.             way of compensation, more than the damage suffered;
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<pre>70                       Report of the International Law Commission on the work of its fifty-second session
    (b) Is without prejudice to any right of recourse                 (c) Obligations of a humanitarian character prohib-
towards the other responsible States.                             iting any form of reprisals against persons protected
                                                                  thereby;
 Article 49. Invocation of responsibility by States other             (d) Other obligations under peremptory norms of
                   than the injured State                         general international law;
1. Subject to paragraph 2, any State other than an                    (e) Obligations to respect the inviolability of diploma-
injured State is entitled to invoke the responsibility of         tic or consular agents, premises, archives and documents.
another State if:
                                                                  2. A State taking countermeasures is not relieved from
    (a) The obligation breached is owed to a group of             fulfilling its obligations under any applicable dispute set-
States including that State, and is established for the pro-      tlement procedure in force between it and the responsible
tection of a collective interest;                                 State.
    (b) The obligation breached is owed to the internatio-
nal community as a whole.                                                        Article 52 [49]. Proportionality
2. A State entitled to invoke responsibility under para-              Countermeasures must be commensurate with the
graph 1 may seek from the responsible State:                      injury suffered, taking into account the gravity of the
                                                                  internationally wrongful act and the rights in question.
    (a) Cessation of the internationally wrongful act, and
assurances and guarantees of non-repetition in accor-
dance with article 30 [41, 46];                                              Article 53 [48]. Conditions relating to
                                                                                     resort to countermeasures
    (b) Compliance with the obligation of reparation
under chapter II of Part Two, in the interest of the injured      1. Before taking countermeasures, the injured State
State or of the beneficiaries of the obligation breached.         shall call on the responsible State, in accordance with arti-
                                                                  cle 44, to fulfil its obligations under Part Two.
3. The requirements for the invocation of responsibility
by an injured State under articles 44, 45 [22] and 46 apply       2. The injured State shall notify the responsible State of
to an invocation of responsibility by a State entitled to do      any decision to take countermeasures, and offer to nego-
so under paragraph 1.                                             tiate with that State.
                                                                  3. Notwithstanding paragraph 2, the injured State may
                         CHAPTER II                               take such provisional and urgent countermeasures as may
                                                                  be necessary to preserve its rights.
                  COUNTERMEASURES                                 4. Countermeasures other than those in paragraph 3
                                                                  may not be taken while the negotiations are being pursued
             Article 50 [47]. Object and limits                   in good faith and have not been unduly delayed.
                    of countermeasures
                                                                  5. Countermeasures may not be taken, and if already
1. An injured State may only take countermeasures                 taken must be suspended within a reasonable time if:
against a State which is responsible for an internationally
wrongful act in order to induce that State to comply with             (a) The internationally wrongful act has ceased; and
its obligations under Part Two.
                                                                      (b) The dispute is submitted to a court or tribunal
2. Countermeasures are limited to the suspension of               which has the authority to make decisions binding on the
performance of one or more international obligations of           parties.
the State taking the measures towards the responsible
State.                                                            6. Paragraph 5 does not apply if the responsible State
                                                                  fails to implement the dispute settlement procedures in
3. Countermeasures shall as far as possible be taken in           good faith.
such a way as not to prevent the resumption of perfor-
mance of the obligation or obligations in question.                          Article 54. Countermeasures by States
                                                                                   other than the injured State
         Article 51 [50]. Obligations not subject
                    to countermeasures                            1. Any State entitled under article 49, paragraph 1, to
                                                                  invoke the responsibility of a State may take countermea-
1. Countermeasures shall not involve any derogation               sures at the request and on behalf of any State injured by
from:                                                             the breach, to the extent that that State may itself take
                                                                  countermeasures under this chapter.
    (a) The obligation to refrain from the threat or use of
force as embodied in the Charter of the United Nations;           2. In the cases referred to in article 41, any State may
                                                                  take countermeasures, in accordance with the present
    (b) Obligations for the protection of fundamental             chapter in the interest of the beneficiaries of the obligation
human rights;                                                     breached.
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<pre>                                                      State responsibility                                                  71
3. Where more than one State takes countermeasures,                 Article 57. Responsibility of or for the conduct of an
the States concerned shall cooperate in order to ensure                           international organization
that the conditions laid down by this chapter for the taking
of countermeasures are fulfilled.                                    These articles are without prejudice to any question
                                                                  that may arise in regard to the responsibility under inter-
                                                                  national law of an international organization, or of any
    Article 55 [48]. Termination of countermeasures               State for the conduct of an international organization.
   Countermeasures shall be terminated as soon as the
responsible State has complied with its obligations under                    Article 58. Individual responsibility
Part Two in relation to the internationally wrongful act.
                                                                     These articles are without prejudice to any question of
                                                                  the individual responsibility under international law of
                         Part Four                                any person acting in the capacity of an organ or agent of a
                                                                  State.
               GENERAL PROVISIONS
              Article 56 [37]. Lex specialis                               Article 59 [39]. Relation to the Charter
                                                                                     of the United Nations
   These articles do not apply where and to the extent that
the conditions for the existence of an internationally               The legal consequences of an internationally wrongful
wrongful act or its legal consequences are determined by          act of a State under these articles are without prejudice to
special rules of international law.                               the Charter of the United Nations.
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