State responsibility
peremptory norms makes it clear that subparagraph (d)
does not qualify the preceding subparagraphs, some of
which also encompass norms of a peremptory character.
In particular, subparagraphs (b) and (c) stand on their own.
Subparagraph (d) allows for the recognition of further
peremptory norms creating obligations which may not be
the subject of countermeasures by an injured State.768
(10) States may agree between themselves on other
rules of international law which may not be the subject
of countermeasures, whether or not they are regarded as
peremptory norms under general international law. This
possibility is covered by the lex specialis provision in article 55 rather than by the exclusion of countermeasures
under article 50, paragraph 1 (d). In particular, a bilateral
or multilateral treaty might renounce the possibility of
countermeasures being taken for its breach, or in relation
to its subject matter. This is the case, for example, with the
European Union treaties, which have their own system of
enforcement.769 Under the dispute settlement system of
WTO, the prior authorization of the Dispute Settlement
Body is required before a member can suspend concessions or other obligations under the WTO agreements in
response to a failure of another member to comply with
recommendations and rulings of a WTO panel or the
Appellate Body.770 Pursuant to article 23 of the WTO Dispute Settlement Understanding (DSU), members seeking
“the redress of a violation of obligations or other nullification or impairment of benefits” under the WTO agreements, “shall have recourse to, and abide by” the DSU
rules and procedures. This has been construed both as
an “exclusive dispute resolution clause” and as a clause
“preventing WTO members from unilaterally resolving
their disputes in respect of WTO rights and obligations”.771
To the extent that derogation clauses or other treaty provisions (e.g. those prohibiting reservations) are properly
interpreted as indicating that the treaty provisions are
“intransgressible”,772 they may entail the exclusion of
countermeasures.
(11) In addition to the substantive limitations on the taking of countermeasures in paragraph 1 of article 50, paragraph 2 provides that countermeasures may not be taken
with respect to two categories of obligations, viz. certain
obligations under dispute settlement procedures applicable
between it and the responsible State, and obligations with
768
See paragraphs (4) to (6) of the commentary to article 40.
the exclusion of unilateral countermeasures in European
Union law, see, for example, joined cases 90 and 91‑63 (Commission
of the European Economic Community v. Grand Duchy of Luxembourg
and Kingdom of Belgium), Reports of cases before the Court, p. 625, at
p. 631 (1964); case 52/75 (Commission of the European Communities
v. Italian Republic), ibid., p. 277, at p. 284 (1976); case 232/78
(Commission of the European Economic Communities v. French Republic), ibid., p. 2729 (1979); and case C-5/94 (The Queen. v. Ministry
of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland)
Ltd.), Reports of cases before the Court of Justice and the Court of First
Instance, p. I–2553 (1996).
770 See Marrakesh Agreement establishing the World Trade Organization, annex 2 (Understanding on Rules and Procedures governing the
Settlement of Disputes), arts. 3, para. 7 and 22.
771 See WTO, Report of the Panel, United States–Sections 301–310
of the Trade Act of 1974 (footnote 73 above), paras. 7.35–7.46.
772 To use the synonym adopted by ICJ in its advisory opinion on
Legality of the Threat or Use of Nuclear Weapons (see footnote 54
above), p. 257, para. 79.
769 On
133
respect to diplomatic and consular inviolability. The justification in each case concerns not so much the substantive
character of the obligation but its function in relation to
the resolution of the dispute between the parties which has
given rise to the threat or use of countermeasures.
(12) The first of these, contained in paragraph 2 (a),
applies to “any dispute settlement procedure applicable”
between the injured State and the responsible State. This
phrase refers only to dispute settlement procedures that are
related to the dispute in question and not to other unrelated
issues between the States concerned. For this purpose the
dispute should be considered as encompassing both the
initial dispute over the internationally wrongful act and
the question of the legitimacy of the countermeasure(s)
taken in response.
(13) It is a well-established principle that dispute settlement provisions must be upheld notwithstanding that they
are contained in a treaty which is at the heart of the dispute and the continued validity or effect of which is challenged. As ICJ said in Appeal Relating to the Jurisdiction
of the ICAO Council:
Nor in any case could a merely unilateral suspension per se render jurisdictional clauses inoperative, since one of their purposes might be,
precisely, to enable the validity of the suspension to be tested.773
Similar reasoning underlies the principle that dispute settlement provisions between the injured and the responsible
State and applicable to their dispute may not be suspended
by way of countermeasures. Otherwise, unilateral action
would replace an agreed provision capable of resolving
the dispute giving rise to the countermeasures. The point
was affirmed by the Court in the United States Diplomatic
and Consular Staff in Tehran case:
In any event, any alleged violation of the Treaty [of Amity] by either
party could not have the effect of precluding that party from invoking
the provisions of the Treaty concerning pacific settlement of disputes.774
(14) The second exception in paragraph 2 (b) limits the
extent to which an injured State may resort, by way of
countermeasures, to conduct inconsistent with its obligations in the field of diplomatic or consular relations. An
injured State could envisage action at a number of levels.
To declare a diplomat persona non grata, to terminate
or suspend diplomatic relations, to recall ambassadors in
situations provided for in the Vienna Convention on Diplomatic Relations—such acts do not amount to countermeasures in the sense of this chapter. At a second level,
measures may be taken affecting diplomatic or consular
privileges, not prejudicing the inviolability of diplomatic
or consular personnel or of premises, archives and documents. Such measures may be lawful as countermeasures
if the requirements of this chapter are met. On the other
hand, the scope of prohibited countermeasures under article 50, paragraph 2 (b), is limited to those obligations
which are designed to guarantee the physical safety and
inviolability (including the jurisdictional immunity) of
diplomatic agents, premises, archives and documents in
773 Appeal Relating to the Jurisdiction of the ICAO Council (India
v. Pakistan), Judgment, I.C.J. Reports 1972, p. 46, at p. 53. See also
S. M. Schwebel, International Arbitration: Three Salient Problems
(Cambridge, Grotius, 1987), pp. 13–59.
774 United States Diplomatic and Consular Staff in Tehran
(see footnote 59 above), p. 28, para. 53.
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