76 Report of the International Law Commission on the work of its fifty-third session The principle is clearly expressed in the “Cysne” case, where the tribunal stressed that: reprisals, which constitute an act in principle contrary to the law of nations, are defensible only insofar as they were provoked by some other act likewise contrary to that law. Only reprisals taken against the provoking State are permissible. Admittedly, it can happen that legitimate reprisals taken against an offending State may affect the nationals of an innocent State. But that would be an indirect and unintentional consequence which, in practice, the injured State will always endeavour to avoid or to limit as far as possible.341 Accordingly, the wrongfulness of Germany’s conduct visà-vis Portugal was not precluded. Since it involved the use of armed force, this decision concerned belligerent reprisals rather than countermeasures in the sense of article 22. But the same principle applies to countermeasures, as the Court confirmed in the Gabčíkovo-Nagymaros Project case when it stressed that the measure in question must be “directed against” the responsible State.342 (6) If article 22 had stood alone, it would have been necessary to spell out other conditions for the legitimacy of countermeasures, including in particular the requirement of proportionality, the temporary or reversible character of countermeasures and the status of certain fundamental obligations which may not be subject to countermeasures. Since these conditions are dealt with in Part Three, chapter II, it is sufficient to make a cross reference to them here. Article 22 covers any action which qualifies as a countermeasure in accordance with those conditions. One issue is whether countermeasures may be taken by third States which are not themselves individually injured by the internationally wrongful act in question, although they are owed the obligation which has been breached.343 For example, in the case of an obligation owed to the international community as a whole ICJ has affirmed that all States have a legal interest in compliance.344 Article 54 leaves open the question whether any State may take measures to ensure compliance with certain international obligations in the general interest as distinct from its own individual interest as an injured State. While article 22 does not cover measures taken in such a case to the extent that these do not qualify as countermeasures, neither does it exclude that possibility. Article 23. Force majeure 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. 2. Paragraph 1 does not apply if: 341 “Cysne” (see footnote 338 above), pp. 1056–1057. Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55, para. 83. 343 For the distinction between injured States and other States entitled to invoke State responsibility, see articles 42 and 48 and commentaries. 344 Barcelona Traction (see footnote 25 above), p. 32, para. 33. 342 (a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the State has assumed the risk of that situation occurring. Commentary (1) Force majeure is quite often invoked as a ground for precluding the wrongfulness of an act of a State.345 It involves a situation where the State in question is in effect compelled to act in a manner not in conformity with the requirements of an international obligation incumbent upon it. Force majeure differs from a situation of distress (art. 24) or necessity (art. 25) because the conduct of the State which would otherwise be internationally wrongful is involuntary or at least involves no element of free choice. (2) A situation of force majeure precluding wrongfulness only arises where three elements are met: (a) the act in question must be brought about by an irresistible force or an unforeseen event; (b) which is beyond the control of the State concerned; and (c) which makes it materially impossible in the circumstances to perform the obligation. The adjective “irresistible” qualifying the word “force” emphasizes that there must be a constraint which the State was unable to avoid or oppose by its own means. To have been “unforeseen” the event must have been neither foreseen nor of an easily foreseeable kind. Further the “irresistible force” or “unforeseen event” must be causally linked to the situation of material impossibility, as indicated by the words “due to force majeure … making it materially impossible”. Subject to paragraph 2, where these elements are met, the wrongfulness of the State’s conduct is precluded for so long as the situation of force majeure subsists. (3) Material impossibility of performance giving rise to force majeure may be due to a natural or physical event (e.g. stress of weather which may divert State aircraft into the territory of another State, earthquakes, floods or drought) or to human intervention (e.g. loss of control over a portion of the State’s territory as a result of an insurrection or devastation of an area by military operations carried out by a third State), or some combination of the two. Certain situations of duress or coercion involving force imposed on the State may also amount to force majeure if they meet the various requirements of article 23. In particular, the situation must be irresistible, so that the State concerned has no real possibility of escaping its effects. Force majeure does not include circumstances in which performance of an obligation has become more difficult, for example due to some political or economic crisis. Nor does it cover situations brought about by the neglect or 345 “‘Force majeure’ and ‘fortuitous event’ as circumstances precluding wrongfulness: survey of State practice, international judicial decisions and doctrine”, study prepared by the Secretariat (Yearbook … 1978, vol. II (Part One), p. 61, document A/CN.4/315).