130
Report of the International Law Commission on the work of its fifty-third session
Commentary
(1) Article 49 describes the permissible object of countermeasures taken by an injured State against the responsible State and places certain limits on their scope.
Countermeasures may only be taken by an injured State
in order to induce the responsible State to comply with its
obligations under Part Two, namely, to cease the internationally wrongful conduct, if it is continuing, and to provide reparation to the injured State.744 Countermeasures
are not intended as a form of punishment for wrongful
conduct, but as an instrument for achieving compliance
with the obligations of the responsible State under Part
Two. The limited object and exceptional nature of countermeasures are indicated by the use of the word “only” in
paragraph 1 of article 49.
(2) A fundamental prerequisite for any lawful countermeasure is the existence of an internationally wrongful act
which injured the State taking the countermeasure. This
point was clearly made by ICJ in the Gabčíkovo Nagymaros Project case, in the following passage:
In order to be justifiable, a countermeasure must meet certain conditions …
In the first place it must be taken in response to a previous international wrongful act of another State and must be directed against that
State.745
(3) Paragraph 1 of article 49 presupposes an objective
standard for the taking of countermeasures, and in particular requires that the countermeasure be taken against a
State which is responsible for an internationally wrongful
act in order to induce that State to comply with its obligations of cessation and reparation. A State taking countermeasures acts at its peril, if its view of the question of
wrongfulness turns out not to be well founded. A State
which resorts to countermeasures based on its unilateral
assessment of the situation does so at its own risk and
may incur responsibility for its own wrongful conduct in
the event of an incorrect assessment.746 In this respect,
there is no difference between countermeasures and other
circumstances precluding wrongfulness.747
744
For these obligations, see articles 30 and 31 and commentaries.
Gabčíkovo-Nagymaros Project (see footnote 27 above), p. 55,
para. 83. See also “Naulilaa” (footnote 337 above), p. 1027; “Cysne”
(footnote 338 above), p. 1057. At the 1930 Hague Conference, all
States which responded on this point took the view that a prior wrongful act was an indispensable prerequisite for the adoption of reprisals;
see League of Nations, Conference for the Codification of International
Law, Bases of Discussion … (footnote 88 above), p. 128.
746 The tribunal’s remark in the Air Service Agreement case (see footnote 28 above), to the effect that “each State establishes for itself its
legal situation vis-à-vis other States” (p. 443, para. 81) should not be
interpreted in the sense that the United States would have been justified
in taking countermeasures whether or not France was in breach of the
Agreement. In that case the tribunal went on to hold that the United
States was actually responding to a breach of the Agreement by France,
and that its response met the requirements for countermeasures under
international law, in particular in terms of purpose and proportionality. The tribunal did not decide that an unjustified belief by the United
States as to the existence of a breach would have been sufficient.
747 See paragraph (8) of the introductory commentary to chapter V
of Part One.
745
(4) A second essential element of countermeasures is
that they “must be directed against”748 a State which has
committed an internationally wrongful act, and which has
not complied with its obligations of cessation and reparation under Part Two of the present articles.749 The word
“only” in paragraph 1 applies equally to the target of the
countermeasures as to their purpose and is intended to
convey that countermeasures may only be adopted against
a State which is the author of the internationally wrongful
act. Countermeasures may not be directed against States
other than the responsible State. In a situation where a
third State is owed an international obligation by the State
taking countermeasures and that obligation is breached by
the countermeasure, the wrongfulness of the measure is
not precluded as against the third State. In that sense the
effect of countermeasures in precluding wrongfulness is
relative. It concerns the legal relations between the injured
State and the responsible State.750
(5) This does not mean that countermeasures may not
incidentally affect the position of third States or indeed
other third parties. For example, if the injured State suspends transit rights with the responsible State in accordance with this chapter, other parties, including third States,
may be affected thereby. If they have no individual rights
in the matter they cannot complain. The same is true if, as
a consequence of suspension of a trade agreement, trade
with the responsible State is affected and one or more
companies lose business or even go bankrupt. Such indirect or collateral effects cannot be entirely avoided.
(6) In taking countermeasures, the injured State effectively withholds performance for the time being of one or
more international obligations owed by it to the responsible State, and paragraph 2 of article 49 reflects this element. Although countermeasures will normally take the
form of the non-performance of a single obligation, it is
possible that a particular measure may affect the performance of several obligations simultaneously. For this reason, paragraph 2 refers to “obligations” in the plural. For
example, freezing of the assets of a State might involve
what would otherwise be the breach of several obligations
to that State under different agreements or arrangements.
Different and coexisting obligations might be affected by
the same act. The test is always that of proportionality, and
a State which has committed an internationally wrongful
act does not thereby make itself the target for any form
or combination of countermeasures, irrespective of their
severity or consequences.751
(7) The phrase “for the time being” in paragraph 2 indicates the temporary or provisional character of countermeasures. Their aim is the restoration of a condition of
legality as between the injured State and the responsible
748 Gabčíkovo-Nagymaros Project (see footnote 27 above), pp. 55–
56, para. 83.
749 In the Gabčíkovo-Nagymaros Project case ICJ held that the
requirement had been satisfied, in that Hungary was in continuing
breach of its obligations under a bilateral treaty, and Czechoslovakia’s
response was directed against it on that ground.
750 On the specific question of human rights obligations, see
article 50, paragraph (1) (b), and commentary.
751 See article 51 and commentary. In addition, the performance of
certain obligations may not be withheld by way of countermeasures in
any circumstances: see article 50 and commentary.
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