509-530, White and Abass in Evans
responsible State.
Countermeasures and Sanctions
A. Self-Help in International Law
Traditionally, States co-exist in a legal system that is essentially
consensual. States, no matter their disparities in size and
strength, are sovereign and equal. In its purest form such a legal
condition existed in the 18th and 19th century. This period was
one of self-help, in that if a State breached one of its obligations,
the victim State f such beach could take both non-forcible and
forcible measures to remedy or to punish that breach.
In 1919, the League of Nations was created, suggesting a move
towards a hierarchy of norms within the concept of an
international society. However, while the Covenant of the League
of Nations purported to regulate, if not prohibit, war, the
organization it established potentially had weak authority over
States. Still, it was a move away from a system of purely private
law between consenting States towards a system of pubic law
indicating a more vertical system of regulation.
When the UN was created in 1945, its Charter contained in
Article 2 (3) a basic rule prohibiting the threat or use of force in
international relations, and creating machinery to promote and
restore international peace and security. The prohibition of force,
which itself formed a jus cogens, immediately cut back on the type
of measure a State could take in response to a breach of IL.
Though States were still permitted to take forcible action in self-
defense, forcible measures beyond that were prohibited by the
Charter.
Article 41 of the Charter also gave UN significant power to
impose on member States obligations to impose non-forcible
measures against miscreant member States. As such, a self-help
system of non-forcible measures deriving from an earlier period
of international relations had to co-exist with a system of
centralized sanctions based on notions of hierarchy and
governance.
After 1945, there no longer exists a pure system of self-help, and
this as affected practice as shall be seen. States wanting to take
measures against a responsible State may go to international
bodies for authority/legitimacy, indeed it could be argued that
they ought to do this when they are not the direct victim of the
unlawful act.
B. Countermeasures
Countermeasures are intrinsically unlawful, but are justified by
the alleged failing to which they were a response. The ILC defined
it as non-forcible measures taken by an injured State in
response to a breach of IL in order to secure the end of the
breach and, if necessary reparation. They are not intended to
be punishment for illegal acts but as an instrument for achieving
compliance with the obligations of the responsible State. They
are taken as a form of inducement, not punishment.
The doctrine of countermeasures as defined by the ILC is
specific. First of all, the response to an unlawful act can only be
the suspension of an international obligation owed to the
Countermeasures must not be forcible. Furthermore, anticipatory
non-forcible counter-measures are unlawful since by definition
they precede actual occurrence of breach.
Countermeasures should be directed against the responsible
State and not third party States.
Countermeasures are temporary and should, whenever possible,
be reversible so the future legal relations between conflicting
Sates can be restored.
Countermeasures must be proportionate. It must be
commensurate with the injury suffered, taking account of the
gravity of the internationally wrongful act and the rights in
questions.
Countermeasures must no violate basic obligations under
international law and those arising jus cogens.
Countermeasures should not affect dispute resolution
procedures that are applicable and they cannot be taken to
impair consular or diplomatic inviolability.
Lastly, countermeasures must follow an unsatisfied demand by
the injured State that the responsible State comply with its
international obligations. The injured State must also notify the
responsible State that it intends to take countermeasures and
offer to negotiate, except in the case of urgent countermeasures
necessary to preserve the injured State’s rights.
C. Economic Sanctions
While the ILC has defined lawful countermeasures with a high
degree of abstraction, the reality of international relations seems
to be very different. Powerful States do not always appear to be
constrained by the niceties of the requirements of
countermeasures: they do not simply suspend obligations, they
do not simply seek to remedy the illegality, what they seek is
coercion and punishment by the application of sanctions
often of an economic in nature, not countermeasures.
Under the pre-Charter period, the prevention of trade from
reaching the responsible State is clearly permissible. In a modern
sense, this still appears to be the case, subject to the
requirements of the multilateral regime of the WTO. Non-
forcible measures, including punitive economic sanctions,
can be justified under the view that restrictions upon the
independence of State cannot be presumed. However, this
basic tenet of sovereignty has to be balanced against another
tenet- that of non-intervention.
D. Sanctions
As opposed to countermeasures, sanctions are very specific
measures. A countermeasure is a measure which has temporary
effects and a coercive character while a sanction has final effects
and a punitive character. Moreover, sanctions have an exemplary
1
character directed at other countries which countermeasures do
not have.
Sanctions, to be lawful, have to be pursued by international
organizations. It has to have the element of collectivity, defining
sanction as action taken by members of the international
community against an infringement, actual or threated, of the
law.
There are two limitations to the imposition of sanctions. First is
that sanction regimes must not cause human right violations. In
addition, they must be proportionate to the end being aimed at,
either the restoration of peace and security by the withdrawal of
an aggressor State or some specific acts that would lead to the
termination of a threat to the peace.
Cassese 300- 313 on Enforcement
New Trends Following the First World War
Sweeping restrictions on resort to war proper were laid down in
a) the Covenant of the League of Nations in 1919 and b) in the
Kellogg-Briand Pact of 1928/ Pact of Paris. It was felt that the
armed force should not be used to settle international disputes.
This view resulted in 3 major developments:
a) A customary prohibition of war slowly emerged
b) A set of rules evolved permitting recourse to armed force
under exceptional circumstances
c) A gradual process circumscribing the grounds for forcible
intervention in the territory of another State led to the
formation of a rule prohibiting dictatorial intervention
(the threat or use of force for the purpose of imposing on
the will of another State)
Enforcement of International Rules in Modern International Law
Reprisals have become the most widespread means of enforcing
international rules. Two trends emerged:
a) Armed reprisals in time of peace are considered unlawful,
except when resorted to against unlawful small-scale use
of force (which is termed as “countermeasures”)
b) Tendency towards the adoption of “sanctions” by
international organizations, particularly as reaction to
serious and large scale breaches of international law.
While countermeasures are actions taken by individual states,
sanctions are collective responses undertaken within an
institutional framework.
A. Countermeasures
In the event of a breach of international law, the injured State is
legally entitled to disregard an international obligation owed to
the delinquent State.
The general conditions of countermeasures are:
a) The injured State must first call upon the responsible State
to discontinue the wrongful action or make reparation
b) The injured State must endeavor to obtain cessation
through negotiations
A.1. Limitations on Countermeasures
a) Countermeasures may not derogate from the obligations
concerning the threat or use of force.
This principle evolved after the gradual turning of Article 2.4 of
the UN Charter1 into a customary rule endowed with the force of
a peremptory norm.
b) Countermeasures may not disregard international rules
for the protection of human rights or, more generally,
the dignity and welfare of human beings.
It is no longer possible to sacrifice the interests and exigencies of
human beings for the sake of responding to wrongs caused by
States. States cannot make consequences of international
misbehavior fall upon innocent people. This rule also extends to
protecting fundamental interests or needs of human beings.
c) Countermeasures may not disregard obligations
imposed by norms of jus cogens.
This prohibition aims at filling any gap left by the ban on
countermeasures derogating from norms on the threat or use of
force, or human rights and humanitarian law. It is a residual
prohibition. It covers areas such as self-determination of peoples
and protection of the environment.
d) Countermeasures may only target the State allegedly
responsible for an international wrongful act. It must not
breach the rights of third States.
A State is not permitted to violate, through a countermeasure, an
international rule imposing community obligations. It is not
permitted to disregard treaty obligations granting rights to other
States. It would be inadmissible, for these States have nothing to
do with the initial delinquency.
e) Countermeasures must not be out of proportion to the
breach by the delinquent State.
The application of this principle raises two problems: a) the exact
scope and b) the standards by which proportionality should be
gauged.
What is exacted by international law is that the countermeasures
should not be grossly disproportionate in gravity and magnitude:
the importance of the rule disregarded by way of
countermeasure, as well as the duration and global effects of its
non-application, should roughly correspond to those of the
unlawful act to which one retaliates.
1
All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
2
Courts have pronounced upon proportionality by balancing the
injury caused by the wrongdoing State with that brought about
by the countermeasure: the countermeasure was proportionate if
it did not seriously exceed the injury resulting from the previous
international wrongful act. However, in current international law,
the purpose of countermeasures must rather be seen in impelling
the offender to discontinue its wrongful conduct or to make
reparation for it. The proportionality must then be appraised by
establishing whether the countermeasure is such as to attain this
purpose.
A. 2. Countermeasures and aggravated State responsibility
In the area of aggravated responsibility, countermeasures are
subject to a special legal regime. Countries, individually or jointly,
have decided to react against gross violations of basic
international norms by other States by adopting economic
measures against the delinquent State.
B. Can national courts enforce international rules?
National courts of a state can contribute to enforcing
international rules by either:
a) Denying legal domestic recognition to acts performed by
foreign States contrary to international law
b) Deciding that the court could oblige the foreign State to
pay compensation to the injured individuals
The question arose of:
a) Whether a court could pass judgment over the domestic
validity and enforceability of foreign legislation on
nationality contrary to international law
b) Whether a court could pronounce on the internal validity
of measures taken by a foreign state as a result of the
internationally unlawful annexation of territory
c) Whether individuals could sue for damage a foreign State
that had caused them injuries as a result of an allegedly
illegal conduct
There are two conflicting requirements in this matter:
a) The need to respect the independence and sovereign
equality of foreign States
b) To ensure by all means the supremacy of international
law, and to supplement the failings of international
mechanisms for enforcing international rules by having to
recourse to national courts
The balanced solution resides in national courts being entitled to
pronounce on the international legality of foreign acts which,
depending on their conformity or inconsistency with
international law, may or may not take effect in the domestic
legal system of these courts.
National courts contribute to the enforcement of many
international rules on human rights or on the prohibition of
international crimes by:
a) Instituting criminal proceedings against individuals
allegedly guilty of violations of those rules
b) (Or as in the case in the USA) By authorizing aliens to sue
for compensation, before US courts, foreign state officials
who have assertedly perpetrated abroad gross breaches of
human rights or humanitarian rules
Retortion
It embraces any retaliatory act by which a State responds, by an
unfriendly act not amounting to a violation of international law,
to either a) a breach of international law or b) an unfriendly act,
by another State. Illustrations include:
a) Breaking off of diplomatic relations
b) Non-recognition of acts of a law-breaking State
c) Withholding of economic assistance
d) Discontinuance of reduction of trade and investment
e) Denial of economic or financial benefits
f) Curtailment of migration
g) Expulsion of nationals of the State
h) Imposition of heavy fiscal duties on goods
i) Requiring visas for entry
It must meet 2 conditions:
a) The noxious act by which a State retaliates against should
be proportionate in gravity to that conduct
b) The act should be discontinued as soon as the unfair,
unfriendly, or wrong behavior ceases
Collective Enforcement (Sanctions Properly So Called)
A. General
The trend is for international bodies to react to gross breaches of
international law by States. It is regarded as a healthy
development because for all its defects, collective responses are
to be preferred to countermeasures by individual States.
Centralized countermeasures are measures that are a) in breach
of international obligations, b) intend to respond to an
international wrongful act of another state, and c) are taken
jointly by a plurality of States.
Collective countermeasures Collective countermeasures
decided by international authorized/ recommended
bodies by international bodies
It is states that take the sanctions
States are legally bound to take States are not legally bound to
the sanctions take the sanctions
Economic and other measures are taken in consequence of a
breach of international rules imposing community obligations.
Sanctions amount to centralized countermeasures when they
consist of actions that undo previous legal commitments made by
the sanctioning states. They amount to political sanctions when
they consist of actions that are not per se illegal, but which
amount to unfriendly conduct.
3
The basic requirement is that they should not be abused. They
must aim at inducing the delinquent State to discontinue its
misbehavior and they ought not to be used as an instrument for
gaining political or diplomatic advantages.
They may serve two purposes:
a) Act as the catalyzing factor uniting a group of States
opposed to the alleged misbehavior of another State
b) A symbol of public exposure and condemnation of the
States allegedly misbehaving (To dramatize and articulate
the condemnations of a certain behavior, to delegitimize it,
to prove to world public opinion that the State was
wrong)
B. Sanctions and Respect for Human Rights
They may have a serious adverse impact on the most vulnerable
groups in the targeted country. It may cause disruption in the
distribution of food, pharmaceuticals and sanitation supplies,
interfere with the functioning of basic health and education
systems, and undermine the right to work.
The SC has increasingly included humanitarian exemptions
permitting the flow of essential goods and services destined for
humanitarian purposes.
A few general standards may be drawn from the principles on
human rights:
a) The general assumption is that the inhabitants of a given
country do not forfeit their basic economic, social, and
cultural rights
b) The general community obligation to refrain from
engaging in, or bringing about, gross and large-scale
violations of human rights is binding upon both States and
international organizations
c) The State targeted by the sanctions must take all the
measures necessary to spare as much as possible its
civilian population
Art. 49
(1)
- Art. 49 describes the permissible object of countermeasures
taken by an injured State against the responsible State;
places certain limits on their scope
- May only be taken to induce the responsible State to comply
with its obligations:
o To cease the internationally wrongful conduct, if it is
continuing; and
o To provide reparation to the injured State
- Not intended as a form of punishment, but as an instrument
for achieving compliance with the obligations of the
responsible State
- Limited object and exceptional nature of countermeasures:
indicated by use of the word “only”
(2)
- Fundamental prerequisite for any lawful
countermeasure: existence of an internationally wrongful
act which injured the State taking the countermeasure
- Gabcikovo Nagymaros:
“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.”
(3)
- Art. 49, par. 1 presupposes an objective standard for taking
countermeasures
- State taking countermeasures acts at its peril, if its view of
the question of wrongfulness turns out not to be well-
founded
o State which resorts to countermeasures based on its
unilateral assessment does so at its own risk and may
incur responsibility for its wrongful conduct in the
event of an incorrect assessment  here, no
difference between countermeasures and other
circumstances precluding wrongfulness
(4)
- Second essential element of countermeasures: they “must
be directed against” 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 ARSIWA)
- “Only” in par. 1 applies equally to the target of
countermeasures; may only be adopted against a State
which is the author of the internationally wrongful act
o 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
o Effect of countermeasures in precluding wrongfulness is
relative here (it only concerns the legal relations
between the injured State and the responsible State)
(5)
- Countermeasures may incidentally affect the position of
third States or indeed other third parties
o If they have no individual rights in the matter, they
cannot complain
o 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
- It is possible that a particular measure may affect the
performance of several obligations simultaneously
- Different and coexisting obligations might be affected by the
same act
- Test: always that of proportionality; a State which has
committed an internationally wrongful act does not make
itself the target for any form or combination of
countermeasures, irrespective of their severity or
consequences
4
(7)
- “For the time being” = temporary or provisional character of
countermeasures
- Aim of countermeasures: restoration of a condition of
legality as between the injured State and the responsible
State and the creation of new situations which cannot be
rectified
- Countermeasures are a form of inducement, not
punishment; if they are effective in inducing the responsible
State to comply with its obligations, they should be
discontinued and performance of the obligation resumed
(8)
- Countermeasures are directed to ensuring the performance
of the obligations of the responsible State “under Part Two”
- Main focus of countermeasures: to ensure cessation of a
continuing wrongful act
o May also be taken to ensure reparations, provided other
conditions laid down in chapter II are satisfied
- Issue arises whether countermeasures should be available
where there is a failure to provide satisfaction as demanded
by the injured State, given the subsidiary role this remedy
plays in the spectrum of reparation2
- Normally, satisfaction will be symbolic or supplementary;
unlikely that a State which had ceased the wrongful act and
tendered compensation could properly be made the target of
countermeasures for failing to provide satisfaction as well
(9)
- Par. 3 is inspired by Art. 72, par. 2 of the 1969 Vienna
Convention, which provides that when a State suspends a
treaty it must not, during the suspension, do anything to
preclude the treaty from being brought back into force
- States should choose countermeasures that are reversible
- Gabcikovo-Nagymaros Project: existence of this condition
was recognized by the Court, but found it unnecessary to
pronounce on the manner
o After concluding that “the diversion of the Danube
carried out by Czechoslovakia was not a lawful
countermeasure because it was not proportionate”, the
Court said:
“It is therefore not required to pass upon one other
condition for the lawfulness of a countermeasure,
namely that its purpose must be to induce the
wrongdoing State to comply with its obligations under
international law, and that the measure must therefore
be reversible.”
- Duty to choose reversible measures is not absolute; may not
be possible in all cases to reverse all effects of
countermeasures
- Inflicting irreparable damage could amount to punishment
or sanction for non-compliance, not a countermeasure
- “As far as possible” = if the injured State has a choice
between a number of lawful and effective countermeasures,
it should select one which permits resumption of
performance of the obligations suspended
- International Covenant on Economic, Social and Cultural
Art. 50
(1)
2 See par. 1 of commentary to Art. 37
- Art. 50 specifies certain obligations the performance of
which may not be impaired by countermeasures; injured
State is required to continue to respect these obligations
- So far as the law of countermeasures is concerned, they are
sacrosanct
(2)
- Obligations fall into 2 basic categories:
(1) Par. 1: obligations which, by reason of their character,
must not be the subject of countermeasures at all
(2) Par. 2: obligations relating in particular to the
maintenance of channels of communication between
the two States concerned, including machinery for the
resolution of their disputes
(3)
- Par. 1 identifies 4 categories of fundamental substantive
obligations which may not be affected by
countermeasures:
(1) Obligation to refrain from the threat or use of force as
embodied in the Charter of the UN
(2) Obligations for the protection of fundamental human
rights
(3) Obligations of a humanitarian character prohibiting
reprisals
(4) Other obligations under peremptory norms of general
international law
(4)
- Par. 1(a) deals with prohibition of threat or use of force
- Includes express prohibition of the use of force (Art. 2, par.
4)
- Effect: excludes forcible measures from the ambit of
permissible countermeasures
(5)
- Prohibition of forcible countermeasures is spelled out in the
Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States
o This is in accordance with the UN Charter, where the GA
proclaimed that “States have a duty to refrain from acts
of reprisal involving the use of force”
(6)
- Par. 1(b): countermeasures may not affect obligations for the
protection of fundamental human rights
o “Naulilaa” arbitration: tribunal stated that a lawful
countermeasure must be “limited by the requirements
of humanity and the rules of good faith applicable in
relations between States”
o Institut de droit international 1934 resolution: State
must “abstain from any harsh measure which would be
contrary to the laws of humanity or the demands of the
public conscience”
(7)
- Committee on Economic, Social and Cultural Rights stressed
that “whatever the circumstances, such sanctions should
always take full account of the provisions of the
Rights
o Sanctions: economic sanctions on civilian populations
o Committee stated that “it is essential to distinguish
between the basic objective of applying political and
economic
5
(8)
- Par. 1(c): obligations of humanitarian law with regard to
reprisals; modeled after Art. 60, par. 5 of the 1969 Vienna
Convention
- Basic prohibition of reprisals against individuals (in
international humanitarian law)
- Geneva Conventions provide that reprisals are prohibited
against defined classes of protected persons, and these
prohibitions are very widely accepted
(9)
- Par. 1(d): prohibits countermeasures affecting obligations
under peremptory norms of general international law
- Peremptory norm, not subject to derogation by a treaty,
cannot be derogated from by unilateral action in the form of
countermeasures
- Subparagraph (d) allows for the recognition of further
peremptory norms creating obligations which may not be
the subject of countermeasures by an injured State
(10)
- States may agree between themselves on other rules of
international law which may not be the subject of
countermeasures
o Possibility is covered by the lex specialis provision in
Art. 55 rather than the exclusion of countermeasures
par. 1(d)
o Treaty might renounce the possibility of
countermeasures being taken for its breach
(11)
- Par. 2: countermeasures may not be taken with respect to 2
categories of obligations
o Obligations under dispute settlement procedures
applicable between it and the responsible State
o Obligations respect to diplomatic and consular
inviolability
- Justification concerns not 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)
- Par. 2(a) applies to “any dispute settlement procedure
applicable” between the injured State and the responsible
State
- Only refers to dispute settlement procedures related to the
dispute in question and not to unrelated issues
- Dispute should be considered as encompassing both initial
dispute over the internationally wrongful act and the
question of the legitimacy of the countermeasures taken
(13)
- Dispute settlement provisions must be upheld
notwithstanding their being contained in a treaty which is at
the heart of the dispute and the continued validity or effect
of which is challenged
o ICJ in Appeal Relating to 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.”
- Similar reasoning underlies principle that dispute settlement
provisions may not be suspended by way of
countermeasures
o Otherwise, unilateral action would replace an agreed
provision capable of resolving the dispute
o 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”
(14)
- Par. 2(b) limits the extent to which an injured State may
resort to conduct inconsistent with its obligations in the field
of diplomatic or consular relations
- What do not amount to countermeasures:
o To declare a diplomat persona non grata
o To terminate diplomatic relations
o To recall ambassadors in situations provided
- Measures may be taken affecting diplomatic or consular
privileges not prejudicing the inviolability of diplomatic or
consular personnel or of premises, archives and documents
 these may be lawful if the requirements of this chapter
are met
- Scope of prohibited countermeasures under par. 2(b) is
limited to obligations designed to guarantee physical safety
and inviolability of diplomatic agents, premises, archives and
documents in all circumstances
(15)
- Tehran case: violations of diplomatic or consular immunities
could not be justified even as countermeasures in response
to an internationally wrongful act by the sending State
- Exclusion of any countermeasures infringing diplomatic and
consular inviolability is justified on functional grounds
o It does affect the various avenues for redress available
to the receiving State
Art. 51
(1)
- Art. 51 establishes an essential limit on the taking of
countermeasures by an injured State, based on
considerations of proportionality
o Relevant in determining what countermeasures may be
applied and their degree of intensity
o Proportionality provides a measure of assurance
inasmuch as disproportionate countermeasures could
give rise to responsibility on the State taking such
measures
(2)
- Proportionality is a well-established requirement for taking
countermeasures
- “Naulilaa” case: “even if one were to admit that the law of
nations does not require that the reprisal should be
approximately in keeping with the offence, one should
certainly consider as excessive and therefore unlawful
reprisals out of all proportion to the act motivating them”
(3)
- Air Service Agreement arbitration:
It is generally agreed that all counter-measures must, in the
first in- stance, have some degree of equivalence with the
alleged breach: this is a well-known rule ... It has been
observed, generally, that judging the “proportionality” of
counter-measures is not an easy task and can at best be
6
 accomplished by approximation. In the Tribunal’s view, it is
essential, in a dispute between States, to take into account
not only the injuries suffered by the companies concerned
but also the importance of the questions of principle arising
from the alleged breach. The Tribunal thinks that it will not
suffice, in the present case, to compare the losses suffered by
Pan Am on account of the suspension of the projected
services with the losses which the French companies would
have suffered as a result of the counter-measures; it will also
be necessary to take into account the importance of the
positions of principle which were taken when the French
authorities prohibited changes of gauge in third countries. If
the importance of the issue is viewed within the frame- work
of the general air transport policy adopted by the United
States Government and implemented by the conclusion of a
large number of international agreements with countries
other than France, the measures taken by the United States
do not appear to be clearly disproportionate when
compared to those taken by France. Neither Party has
provided the Tribunal with evidence that would be sufficient
to affirm or reject the existence of proportionality in these
terms, and the Tribunal must be satisfied with a very
approximative appreciation.
(4)
- Question of proportionality central in Gabcikovo Nagymaros
Project:
In the view of the Court, an important consideration is that
the effects of a countermeasure must be commensurate with
the injury suffered, taking account of the rights in question.
- The Court took into account the quality or character of the
rights in question as a matter of principle and (like the
tribunal in the Air Service Agreement case) did not assess the
question of proportionality only in quantitative terms
(5)
- In areas where proportionality is relevant (self-defence) it is
normal to express the requirement in positive terms
- Positive formulation is adopted in Art. 51
- Negative formulation might allow too much latitude
(6)
- Proportionality must be assessed taking into account not
only the purely “quantitative” element of the injury suffered,
but also “qualitative” factors such as the importance of the
interest protected by the rule infringed and the seriousness
of the breach
- Proportionality is related primarily to the injury suffered but
“taking into account” 2 further criteria:
o Gravity of the internationally wrongful act; and
o The rights in question – this has a broad meaning, and
includes not only the effect of a wrongful act on the
injured State but also on the rights of the responsible
State
(7)
- Proportionality is concerned with the relationship between
the internationally wrongful act and the countermeasure
- Proportionality is linked to the requirement of purpose in
Art. 49; it is, however, a limitation even on measures which
may be justified under Art. 49
- Countermeasure must be commensurate with the injury
suffered, including the importance of the issue of principle
involved and this has a function partly independent of the
question whether the countermeasure was necessary to
achieve the result of ensuring compliance
Art. 52
(1)
- Art. 52: procedural conditions relating to resort to
countermeasures by the injured State
- Before taking countermeasures, injured State must call on
the responsible State (in accordance with Art. 43) to comply
with its obligations
- Injured State is required to notify the responsible State that
it intends to take countermeasures and offer to negotiate
with that State
o Injured State may take certain urgent countermeasures
to preserve its rights
- If the responsible State has ceased the internationally
wrongful act and the dispute is before a competent court or
tribunal, countermeasures may not be taken; if taken, must
be suspended
o XPT: If the responsible State fails to implement dispute
settlement procedures in good faith 
countermeasures do not have to be suspended and may
be resumed
(2)
- Overall, Art. 52 seeks to establish reasonable procedural
conditions for the taking of countermeasures in a context
where compulsory third party settlement of disputes may
not be available, immediately or at all
- Where a third party procedure exists and has been invoked,
the requirements of that procedure should substitute as far
as possible for countermeasures
- Where the responsible State is not cooperating with the
international court or tribunal, the remedy of
countermeasures necessarily survives
(3)
- First requirement in par. 1(a): injured State must call on the
responsible State to fulfil its obligations of cessation and
reparation before any resort to countermeasures
o Referred to as “sommation”
o Appears to reflect a general practice
(4)
- Principle underlying notification requirement: Considering
the exceptional nature and potentially serious consequences
of countermeasures, they should not be taken before the
other State is given notice of a claim and some opportunity
to present a response
(5)
- Countermeasures can have serious consequences for the
target State, which should have the opportunity to
reconsider its position faced with the proposed
countermeasures
- Notifications could be made close to each other or even at
the same time (between subparagraphs a and b)
(6)
7
- State which is responsible for an internationally wrongful - Underlines specific character of countermeasures
act (and which refuses to cease that act or provide redress)
may seek to immunize itself from countermeasures
o These steps may be taken within a short time, and the Art. 54
notification requirement might frustrate its own
purpose - Art. 48 allows invocation by:
o Par. 2 allows for urgent countermeasures which are o Any State, in case of a breach of an obligation to the
necessary to preserve the rights of the injured State international community as a whole; OR
 Covers both rights in subject matter of dispute and o Any member of a group of States, in the case of other
right to take countermeasures obligations established for the protection of the
(7) collective interest of the group
- Such States may also demand cessation and performance;
- Unilateral action by way of countermeasures is not justified: they also have a legal interest in compliance
o When the wrongful act has ceased and the dispute is (2)
submitted to a court or tribunal which has authority
o And for so long as the dispute settlement procedure is - Must distinguish between:
being implemented in good faith o Individual measures (whether taken by one State or by
- Effect: a group of States each acting in its individual capacity
o Countermeasures may not be undertaken and through its own organs) AND
o If taken, they must be suspended “Without undue delay” o Institutional reactions in the framework of international
(8) organizations  THIS IS NOT COVERED BY THE
ARTICLES
- “Pending before a court or tribunal” - Articles do not cover the case where action is taken by an
o Tribunal must exist international organization, even though the member States
o Must be in a position to deal with the case may direct or control its conduct
- Dispute not pending: (3)
o Before an ad hoc tribunal established pursuant to a
treaty until the tribunal is actually constituted - Practice is limited and embryonic
- Par. 3 assumes that the court or tribunal has jurisdiction - States have reacted without claiming to be individually
over the dispute and the power to order provisional injured; reactions have taken the form of economic sanctions
measures - Examples:
- Rationale: once parties submit their dispute to such a court Case Third Party Who Took Why
or tribunal for resolution, the injured State may request it to Action and How
order provisional measures to protect its rights US-Uganda US Congress: adopted Gov’t of Uganda has
o The request is essentially equivalent to a legislation prohibiting committed genocide
countermeasure export of goods and against Ugandans ad
o IF order is complied with, countermeasures are technology to, and all the US should take
unnecessary imports from, Uganda steps to dissociate
(9) itself from any foreign
gov’t which engages in
- Further condition for suspension of countermeasures the int’l crime of
- Comprehends various possibilities: genocide
o Initial refusal to cooperate in the procedure (non- Certain US and other Western Polish Gov’t imposed
appearance, non-compliance with a provisional Western countries took action, martial law and
measures order, refusal to accept the final decision) countries- among which, included subsequently
o Also covers situations where a State party fails to Poland and the suspension of suppressed
cooperate in the establishment of the relevant tribunal the Soviet treaties providing for demonstrations and
or fails to appear before the tribunal once established Union landing rights in their detained many
- Under par. 4 circumstances, par. 3 countermeasures do not countries; suspension dissidents
apply procedures in the
treaties were
disregarded
Art. 53 Collective UK, European Argentina took control
measures Community members, over part of the
(1) against Australia, Canada and Falkland Islands
Argentina New Zealand adopted
- Situation: responsible State has complied with its obligations trade sanctions:
of cessation and reparation under Part Two in response to included temporary
the countermeasures prohibition on all
- Once there is compliance, no ground is left for maintaining imports of Argentine
countermeasures and must be terminated products
(2) US-South Some countries Gov’t of South Africa
Africa introduced measures declared state of
- The notion that they must be terminated as soon as the beyond the SC emergency and the
conditions have ceased is implicit in the other articles; this recommendation Security Council
article makes it clear recommended the
adoption of sectoral

8
 economic boycotts concerning measures taken by States other than the injured
and freezing of State in response to breaches of obligations for the
cultural and sports protection of the collective interest or those owed to the
relations international community as a whole
Collective European Community Iraqi troops invaded Art. 28 – 31 ARSIWA
measures member States and the and occupied Kuwait,
against Iraq US adopted trade which the SC
embargoes and decided condemned ART 28. Legal consequences of an internationally wrongful act
to freeze Iraqi assets
Collective Member States of the Humanitarian crisis in The international responsibility of a State which is entailed by an
measures European Community Kosovo internationally wrongful act in accordance with the provisions of
against the adopted legislation Part One involves legal consequences as set out in this Part.
Federal providing for the
Republic of freezing of Yugoslav
Yugoslavia funds and an immediate  The core legal consequences of an internationally wrongful
flight ban act are: the obligation to cease the wrongful conduct (art.
30) and to make full reparation for the injury caused (art.
31). Where the act constitutes serious breach arising under a
(4) peremptory norm, the breach may entail further
consequences both for the responsible State and for other
- Certain States suspended treaty rights to exercise pressure States. In particular, all States in such cases have obligations
on States violating collective obligations; did not rely on to cooperate to bring the breach to an end, not to recognize
right to take countermeasures, but asserted a right to as lawful the situation created by the breach and not to
suspend the treaty because of a fundamental change of render aid or assistance to the responsible State in
circumstances maintaining the situation so created (arts. 40–41).
o Netherlands-Suriname  While Part One applies to all the cases in which an
 New gov’t which seized power in Suriname  internationally wrongful act may be committed by a State,
crackdown on opposition movements Part Two is limited in that it does not apply to obligations of
 Dutch Gov’t suspended bilateral treaty on dev’t reparation to the extent that these arise towards or are
assistance, stating that human rights violations invoked by a person or entity other than a State. The
constituted a fundamental change of circumstances provisions of Part Two are without prejudice to any right,
which gave rise to a right of suspension arising from the international responsibility of a State, which
o European Community member States-the Federal may accrue directly to any person or entity other than a
Republic of Yugoslavia State (art. 33).
 Resumption of fighting within Yugoslavia
 European Community suspended and denounced
the Cooperation Agreement with Yugoslavia, which ART 29. Continued duty of performance
repealed trade preferences on imports, among
others The legal consequences of an internationally wrongful act under
 European Community relied on fundamental this Part do not affect the continued duty of the responsible State
change of circumstances to perform the obligation breached.

(5)  As a result of the internationally wrongful act, a new set of

- There has been an apparent willingness on the part of some
States to respond to violations of obligations involving some
general interest, where those States could not be considered
“injured States”
- However, there was a State primarily injured by the breach
and other States acted at the request and on behalf of that
State
(6)
- Current state on countermeasures taken in the general or
collective interest is uncertain
- No clearly recognized entitlement of States to take
countermeasures in the collective interest
(7)
- Art. 54 speaks of “lawful measures” rather than
“countermeasures” so as not to prejudice any position
legal relations is established between the responsible State
and the State or States to whom the international obligation
is owed. But this does not mean that the preexisting legal
relation established by the primary obligation disappears.
Even if the responsible State complies with its obligations
under Part Two to cease the wrongful conduct and to make
full reparation for the injury caused, it is not relieved
thereby of the duty to perform the obligation breached. The
continuing obligation to perform an international obligation,
notwithstanding a breach, underlies the concept of a
continuing wrongful act (see article 14) and the obligation of
cessation (see article 30 (a)).
 In some situations the ultimate effect of a breach of an
obligation may be to put an end to the obligation itself. For
example, a State injured by a material breach of a bilateral
treaty may elect to terminate the treaty. A breach of an
obligation under general international law does not affect
the underlying obligation, and indeed will never do so as
such. By contrast, the secondary legal relation of State
responsibility arises on the occurrence of a breach and
without any requirement of invocation by the injured State.
 This does not need to deal with such contingencies. All it
provides is that the legal consequences of an internationally

9
 wrongful act within the field of State responsibility do not
affect any continuing duty to comply with the obligation
which has been breached. Whether and to what extent that
obligation subsists despite the breach is a matter not
regulated by the law of State responsibility but by the rules
concerning the relevant primary obligation.
ART 30. Cessation and non-repetition
 The State responsible for the internationally wrongful act is
under an obligation:
 to cease that act, if it is continuing;
 to offer appropriate assurances and guarantees of non-
repetition, if circumstances so require.
 Both are aspects of the restoration and repair of the legal
relationship affected by the breach. Cessation is the negative
aspect of future performance, concerned with securing an
end to continuing wrongful conduct. Assurances and
guarantees serve a preventive function and may be
described as a positive reinforcement of future performance.
The continuation in force of the underlying obligation is a
necessary assumption of both.
 The word “act” covers both acts and omissions. Cessation is
thus relevant to all wrongful acts extending in time
“regardless of whether the conduct of a State is an action or
an omission … since there may be cessation consisting in
abstaining from certain actions.”
 In Rainbow Warrior, 2 essential conditions intimately linked
for the requirement of cessation of wrongful conduct to
arise: (1) the wrongful act has a continuing character and (2)
the violated rule is still in force at the time in which the
order is issued. “If it is continuing” means it also
encompasses situations where a State has violated an
obligation on a series of occasions, implying the possibility of
further repetitions.
 Cessation of conduct in breach of an international obligation
is the first requirement in eliminating the consequences of
wrongful conduct. It is often the main focus of the
controversy produced by conduct in breach of an
international obligation. It is frequently demanded not only
by States but also by the organs of IOs such as GA.
Reparation, by contrast, may not be the central issue in a
dispute between States as to questions of responsibility.
 The function of cessation is to put an end to a violation of
international law and to safeguard the continuing validity
and effectiveness of the underlying primary rule. It thus
protects both the interests of the injured State or States and
the interests of the international community as a whole in
the preservation of, and reliance on, the rule of law.
 Reasons for treating cessation as more than simply a
function of the duty to comply with the primary obligation:
(1) The question of cessation only arises in the event of a
breach. What must then oc-cur depends not only on the
interpretation of the primary obligation but also on the
secondary rules relating to remedies, and it is appropriate
that they are dealt with, at least in general terms, in articles
concerning the consequences of an internationally wrongful
act. (2) Continuing wrongful acts are a common feature of
cases involving State responsibility (see art. 14).
 The result of cessation may be indistinguishable from
restitution, for example in cases involving the freeing of
hostages or the return of objects or premises seized. But
unlike restitution, cessation is not subject to limitations
relating to proportionality. It may give rise to a continuing
obligation, even when literal return to the status quo ante is
excluded or can only be achieved in an approximate way.
The distinction between cessation and restitution may have
important consequences in terms of the obligations of the
States concerned.
 Assurances and guarantees are concerned with the
restoration of confidence in a continuing relationship,
although they involve much more flexibility than cessation
and are not required in all cases. They are most commonly
sought when the injured State has reason to believe that the
mere restoration of the preexisting situation does not
protect it satisfactorily.
 In LaGrand: Germany sought both general and specific
assurances and guarantees as to the means of future
compliance with the Convention.
o On the question of jurisdiction, the Court held: that a
dispute regarding the appropriate remedies for the
violation of the Convention alleged by Germany is a
dispute that arises out of the interpretation or
application of the Convention and thus is within the
Court’s jurisdiction.
o The Court held: that the commitment expressed by US
to ensure implementation of the specific measures
adopted in performance of its obligations under Article
36, paragraph 1 (b), must be regarded as meeting
Germany’s request for a general assurance of non-
repetition.
o As to the specific assurances sought by Germany, the
Court stated: an apology would not suffice in cases
where the individuals concerned have been subjected to
prolonged detention or convicted and sentenced to
severe penalties. In the case of such a conviction and
sentence, it would be incumbent upon the US to allow
the review and reconsideration of the conviction and
sentence by taking account of the violation of the rights
set forth in the Convention.
 Assurances or guarantees of non-repetition may be sought
by way of satisfaction (e.g. the repeal of the legislation which
allowed the breach to occur) and there is thus some overlap
between the two in practice. However, they are better
treated as an aspect of the continuation and repair of the
legal relationship affected by the breach.
 Assurances are normally given verbally, while guarantees of
non-repetition involve something more—for example,
preventive measures to be taken by the responsible State
designed to avoid repetition of the breach. With regard to
the kind of guarantees that may be requested, international
practice is not uniform. The injured State usually demands
either safeguards without any specification of the form they
are to take. In LaGrand: ICJ spelled out with some specificity
the obligation that would arise for the US from a future
breach, but added that “this obligation can be carried out in
various ways. The choice of means must be left to the US.”.
Whether a State could properly offer a guarantee of non-
repetition would depend on the nature of the obligation in
question.
 Assurances and guarantees of non-repetition will not always
be appropriate, even if demanded. Much will depend on the
circumstances of the case, including the nature of the
obligation and of the breach. The rather exceptional
character of the measures is indicated by the words “if
circumstances so require.” The obligation with respect to
assurances and guarantees of non-repetition is formulated in
flexible terms in order to prevent the kinds of abusive or
excessive claims which characterized some demands for
assurances and guarantees by States in the past.
10
ART 31. Reparation
1. The responsible State is under an obligation to make full
reparation for the injury caused by the internationally wrongful
act.
2. Injury includes any damage, whether material or moral,
caused by the internationally wrongful act of a State.
 Factory at Chorzów case: It is a principle of international law
that the breach of an engagement involves an obligation to
make reparation in an adequate form. Reparation is the
indispensable complement of a failure to apply a convention
and there is no necessity for this to be stated in the
convention itself. [xxx] The essential principle contained in
the actual notion of an illegal act—is that reparation must, as
far as possible, wipe out all the consequences of the illegal
act and reestablish the situation which would, in all
probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a
sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss
sustained which would not be covered by restitution in kind
or payment in place of it—such are the principles which
should serve to determine the amount of compensation due
for an act contrary to international law.
 The general obligation of reparation is formulated as the
immediate corollary of a State’s responsibility, i.e. as an
obligation of the responsible State resulting from the breach,
rather than as a right of an injured State or States. This n
avoids the difficulties that might arise where the same
obligation is owed simultaneously to several, many or all
States, only a few of which are specially affected by the
breach. The general obligation of reparation arises
automatically upon commission of an internationally
wrongful act and is not contingent upon a demand or protest
by any State, even if the form which reparation should take
in the circumstances may depend on the response of the
injured State or States.
 “Injury” includes any damage caused by that act. In
particular, it includes any material or moral damage caused
thereby. This formulation is intended both as inclusive,
covering both material and moral damage broadly
understood, and as limitative, excluding merely abstract
concerns or general interests of a State which is individually
unaffected by the breach. “Material” damage here refers to
damage to property or other interests of the State and its
nationals which is assessable in financial terms. “Moral”
damage includes such items as individual pain and suffering,
loss of loved ones or personal affront associated with an
intrusion on one’s home or private life.
 There is in general no such requirement of damage as an
element of an internationally wrongful act; rather this is a
matter which is determined by the relevant primary rule. In
each case the primary obligation will determine what is
required.
 There is no general requirement that a State should have
suffered material harm or damage before it can seek
reparation for a breach. The existence of actual damage will
be highly relevant to the form and quantum of reparation.
But there is no general requirement of material harm or
damage for a State to be entitled to seek some form of
reparation. In Rainbow Warrior, parties agreed that:
Unlawful action against non-material interests, such as acts
affecting the honor, dignity or prestige of a State, entitles the
victim State to receive adequate reparation, even if those
acts have not resulted in a pecuniary or material loss for the
claimant State.
 In many cases, the damage that may follow from a breach
(e.g. harm to the environment by emissions exceeding the
prescribed limit) may be distant, contingent or uncertain.
Nonetheless, States may enter into immediate and
unconditional commitments in their mutual long-term
interest in such fields. Article 31 defines “injury” in a broad
and inclusive way, leaving it to the primary obligations to
specify what is required in each case.
 There must be a causal link between the internationally
wrongful act and the injury. The subject matter of reparation
is the injury resulting from and ascribable to the wrongful
act, rather than any and all consequences flowing from an
internationally wrongful act.
 Causality (between wrongful act and injury) in fact is a
necessary but not a sufficient condition for reparation. There
is a further element, associated with the exclusion of injury
that is too “remote” or “consequential” to be the subject of
reparation. In some cases, the criterion of “directness” may
be used, in others “foreseeability” or “proximity”. But other
factors may also be relevant: for example, whether State
organs deliberately caused the harm in question, or whether
the harm caused was within the ambit of the rule which was
breached, having regard to the purpose of that rule. The
requirement of a causal link is not necessarily the same in
relation to every breach of an international obligation. In
international as in national law, the question of remoteness
of damage “is not a part of the law which can be
satisfactorily solved by search for a single verbal formula”.
The notion of a sufficient causal link which is not too remote
is embodied in the general requirement in article 31 that the
injury should be in consequence of the wrongful act, but
without the addition of any particular qualifying phrase.
 A further element affecting the scope of reparation is the
question of mitigation of damage. Although often expressed
as “duty to mitigate”, this is not a legal obligation which itself
gives rise to responsibility. Rather, a failure to mitigate by
the injured party may preclude recovery to that extent.
 In Gabcˇíkovo-Nagymaros Project case: Slovakia also
maintained that it was acting under a duty to mitigate
(general principle of law) damages when it carried out
Variant C. An injured State which has failed to take the
necessary measures to limit the damage sustained would not
be entitled to claim compensation for that damage which
could have been avoided. While this principle might thus
provide a basis for the calculation of damages, it could not,
on the other hand, justify an otherwise wrongful act.
 Often 2 separate factors combine to cause damage. In United
States Diplomatic and Consular Staff in Tehran: the initial
seizure of the hostages by militant students (not at that time
acting as organs or agents of the State) was attributable to
the combination of the students’ own independent action
and the failure of the Iranian authorities to take necessary
steps to protect the embassy. In Corfu Channel: the damage
to the British ships was caused both by the action of a third
State in laying the mines and the action of Albania in failing
to warn of their presence.
 Although, in such cases, the injury in question was effectively
caused by a combination of factors, only one of which is to be
ascribed to the responsible State, international practice and
the decisions of international tribunals do not support the
reduction or attenuation of reparation for concurrent causes,
except in cases of contributory fault. In Corfu Channel the UK
recovered the full amount of its claim against Albania based
on the latter’s wrongful failure to warn of the mines even
though Albania had not itself laid the mines. Such a result
should follow a fortiori in cases where the concurrent cause
11
 is not the act of another State (which might be held
separately responsible) but of private individuals, or some
natural event such as a flood. In United States Diplomatic and
Consular Staff in Tehran, Iran was held to be fully
responsible for the detention of the hostages from the
moment of its failure to protect them.
 It is true that cases can occur where an identifiable element
of injury can properly be allocated to one of several
concurrently operating causes alone. But unless some part of
the injury can be shown to be severable in causal terms from
that attributed to the responsible State, the latter is held
responsible for all the consequences, not being too remote,
of its wrongful conduct.
 Concerns are sometimes expressed that a general principle
of reparation of all loss flowing from a breach might lead to
reparation which is out of all proportion to the gravity of the
breach. However, the notion of “proportionality” applies
differently to the different forms of reparation.
III.
Crawford 566-577
Concept: Legal consequences of internationally wrongful act
Summary by: Fra
Consequences of an Internationally Wrongful Act
I. Cessation, Reparation, Invocation
II.
Definition of terms:
Breach of an international obligation – denotes an unlawful
act or omission
Damage – denotes loss, damnum, usually a financial qualification
of physical or economic injury or damage or of other
consequences of such a breach
Injury – arises from a breach of a legal duty
Cessation – Refers to the basic obligation of compliance with
international law, which in principle remains due in spite of any
breaches. Cessation is required, not as a means of reparation but
as an independent obligation, whenever the obligation in
question continues to exist.
Reparation – refers to all measures which may be expected from
the responsible State, over and above cessation: it includes
restitution, compensation, and satisfaction
Restitution – refers to restitution in kind, a withdrawal of the
wrongful measure or the return of the persons or assets seized
illegally
Compensation – reparation in the narrow sense of the payment
of money in the measure of the wrong done
Satisfaction – means of redressing a wrong other than by
restitution or compensation. E.g. apology, trial and punishment of
individuals responsible, taking steps to prevent a recurrence of
the breach, etc.
Propositions about international responsibility:
(1) International responsibility is undifferentiated: just as
custom and treaty are alternative ways of generating
obligation, so there is no difference in principle between
responsibility arising ex contractu or ex delicto
- Ex. For a state party to the UNCLOS, the obligation
to allow innocent passage through the territorial
sea arises by treaty; for the US as a non-party, it
arises under general international law. Materially,
the obligations are indistinguishable and it would
be odd if a different regime of responsibility
applied to one as compared with the other
(2) The regime of responsibility is undifferentiated in the
sense that it applies to the whole array of obligations
under international law
(3) The function of reparation is the restoration of relations
reflected in the status quo ante; it must, as far as
practicable, wipe out all the consequences of the illegal
act and reestablish the situation which would have
exited if that act had not been committed
Forms of Reparation
A. Restitution in kind and restitutio in integrum
- To achieve the object of reparation, tribunals may
give legal restitution in the form of a declaration
that an offending act of the executive, legislature or
judicature is unlawful and without international
effect
- This action can be classified as a genuine
application of the principle restitutio in integrum or
as an aspect of satisfaction
- Restitution in kind
o Restitution – re-establishment of the situation
which existed before occurrence of the
wrongful act
o Restitution in kind is also known as ‘specific
restitution’
o Logical means of repairing an injury
o Customary law or treaty law may create
obligations to which is annexed a power to
demand restitution
o Specific restitution is exceptional; the vast
majority of claims conventions and
agreements to submit to arbitration provide
for the adjudication of pecuniary claims only
B. Compensation, Damages
- Usually an appropriate and often the only remedy
for injury caused by an unlawful act
- Whenever restitution is not possible, compensation
becomes the standard consequence for injury,
covering any financially assessable damage
- An injured state is entitled to obtain compensation
from the state which has committed an
internationally wrongful act for the damage caused
by it
- Outside of the few cases of objective liability, it may
be that the rule is simply that if harm is caused by
wrongful or negligent conduct, whether or not in
the course of lawful activity, then compensation is
payable
- Punitive or penal damages in international law
o There is some debate as to the possibility
of granting punitive damages
o The problem concerns in part the
granting of compensation for breach of
legal duties without actual damage. E.g.
unlawful but temporary intrusion into
territory  this has been referred to as
12
 ‘penal damages’ but ‘moral damages’ is
more accurate
- Fitzmaurice expressed his view that any breach of
treaty entails the payment of some damages
irrespective of whether the breach has caused any
actual material damage or pecuniary loss.
However, tribunals are cautious in approaching
cases of non-material loss and there is no simple
solution to the problem of valuation of losses
- Violation of national honor and dignity are
nowadays often dealt with by satisfaction
C. Satisfaction
- The role of satisfaction
o It is any measure which the responsible state
is bound to take under customary law or
under an agreement by the parties to a
dispute, apart from restitution or
compensation. It is an aspect of reparation in
the broad sense
o Pecuniary satisfaction vs. compensation: if the
intention behind the demand is predominantly
that of seeking a token of regret and
acknowledgment of wrongdoing, then it is a
matter of satisfaction
o May take many forms: apologies,
acknowledgment of wrongdoings by means of
payment of indemnity or salute to the flag;
trial and punishment of individuals concerned,
or the taking of measures to prevent a
recurrence of the harm
o It is sometimes suggested that an affront to the
honor of a state or intention to harm are
preconditions for demand of satisfaction, but
this is very doubtful. Such elements may enter
into the assessment of compensation, as also
may the failure to undertake measures to
prevent a recurrence of the harm or punish
those responsible
o Apology should take forms which are not
humiliating and excessive
- Declaratory judgments
o A declaration by a court as to the illegality of
the act of the defendant state constitutes a
measure of satisfaction
o International tribunals may give a declaratory
judgment in cases where this is the
appropriate and constructive method of
dealing with a dispute and the object is not
primarily to give satisfaction for a wrong
received
o Declaratory judgment would seem to be a way
for the Court to provide to the injured party a
form of satisfaction which does not depend on
any action by the violator, when another type
of reparation could risk reigniting or
aggravating a conflict
Avena (Mexico v. US)
Brief Facts: From 1979 up to the Mexico’s application for
proceedings in the ICJ, 54 Mexican citizens were arrested,
detained, tried, convicted, and sentenced to death in different
states of the US. Mexico claimed that the US violated its
obligations under Article 36(1)(b) of the 1963 Vienna Convention
on Consular Relations by failing to inform the said Mexican
citizens of their rights under the said convention. Because of such
violation, Mexico asked the ICJ to annul the convictions and
sentences against the 52 Mexican citizens.
Doctrine: Under Article 36(1)(b) of the 1963 Vienna Convention
on Consular Relations, when the agents of a receiving state (a
state where an alien resides) arrests and detains in any manner
an alien, the receiving state has the following duties: 1) to inform
the alien without delay that the consular post of the alien’s state
(the sending state) may be informed of his arrest and his
detention if he so wishes; 2) to inform without delay the consular
post of the alien’s arrest and detention if he so wishes; and 3) to
forward without delay to the consular office communication
which the alien wishes to convey to such office. The first
obligation usually triggers the other two. The words “without
delay,” in the first obligation, means that once the receiving state
realizes the alien citizenship of the arrested and/or detained
person, the receiving state must inform him of his rights under
the Convention.
The first obligation under Article 36(1)(b) is also linked to the
rights given under Article 36(1)(a) (right of consular officers to
freely talk to citizens of its state and vice versa) and (1)(c) (right
to provide certain assistance, including legal representation).
These rights may be characterized as protection given by a State
to its citizens. Violation of the first obligation mentioned above
does not necessarily deprive a State of its right and ability to
provide protection to its citizens residing and sojourning in
foreign jurisdictions.
Relevant Provision:
Art. 36 (1) With view toward facilitating the exercise of consular
functions relating to nations of the sending State:
(a) Consular officers shall be free to communicate with
nationals of the sending State and to have access to
them. Nationals of the sending State shall have the same
freedom with respect to communication with and
access to consular officers of the sending State;
(b) If he so requests, the competent authorities of the
receiving State shall, without delay, inform the consular
post of the sending State if, within its consular district, a
national of that State is arrested or committed to prison
or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular
post by the person arrested, in prison, custody or
detention shall be forwarded by the said authorities
without delay. The said authorities shall inform the
person concerned without delay of his rights under this
paragraph.
(c) Consular officers shall have the right to visit a national
of the sending State who is in prison, custody or
detention, to converse and correspond with him and to
arrange for his legal representation. They shall also
have the right to visit any national of the sending State
who is in prison, custody or detention in their district in
pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking action on behalf of a
national who is in prison, custody or detention if he
expressly opposes such action.
13
(2) The rights referred to in paragraph 1 of this Article shall be
exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said
laws and regulations must enable full effect to be given to the
purpose for which the rights accorded under this article are
intented.
Facts:
1. From 1979 up to the Mexico’s application for proceedings in
the ICJ, 54 Mexican citizens were arrested, detained, tried,
convicted, and sentenced to death in different states of the US.
Two were later dropped from the list by Mexico after it learned
that they also had US citizenship.
2. Mexico claimed that the US violated its obligations under
Article 36(1)(b) of the 1963 Vienna Convention on Consular
Relations (the Convention) by failing to inform the said
Mexican citizens of their rights under the said convention.
3. Mexico asked the ICJ to declare that US had indeed violated its
obligations under the Convention, praying for the remedy of
restitutio in integrum through the US restoring the status quo
ante.
4. The US maintained that for most of the Mexican citizens
mentioned, there was no duty on its part to inform them of
their rights under the Convention, since they also held US
citizenship.
Issues: (procedural issues irrelevant to topic; issues 1-3 most
relevant as they relate to state protection of its citizens; see notes
for some information regarding the procedural issues)
1. Whether or not the US had the duty to inform without delay
the Mexican Citizens subject of this case. [YES]
2. Whether or not the US complied with its obligation to inform
them without delay. [NO]
3. Whether or not the US complied with its obligation to inform
the consular post of Mexico of the arrest and detention of the
Mexican Citizens subject of this case. [NO, except with respect
to 1 person]
4. Whether or not Mexico is entitled to the relief prayed for. [NO]
Ratio:
1. Yes, the US had the duty to inform without delay the
Mexican citizens subject of this case. Although it argued
that they also held US citizenship, it was not able to
dispose of its onus probandi of showing that the said
Mexicans also held US citizenship.
 It is an accepted principle in international law that one who
asserts or wishes to establish a fact has the burden of
proving the same. In this case, Mexico claimed that the
persons subject of this case were Mexican citizens at the
time of arrest. The US also claimed that they were US citizens
at the same time. Both parties admitted to having the burden
of proving their allegations. Mexico provided the birth
certificates of the persons subject of this case as well as
statements from some of them attesting that they were
indeed Mexican citizens at the time of their arrest. US, on the
other hand, while admitting to having the burden of proving
their US citizenship, said that Mexico had the burden of
evidence, because the latter had in its custody the necessary
information to prove the US citizenship of the persons
subject of this case. Consequently, it did not provide any
evidence of US citizenship to the ICJ.
 The Court held that since the US had the burden of proving
the US citizenship of the persons subject of this case, it also
had the burden of obtaining and submitting evidence for
such fact. If information and documents necessary to prove
the fact of US citizenship was in part in the custody of
Mexico, it should have asked that the same be furnished, and
only when the response was not forthcoming could it argue
that Mexico did not provide the necessary information.
Having no evidence to stand upon, the US claim could not be
upheld. The persons subject of this case were indeed
Mexicans at the time of their arrest.
 The Court, however, observed that one the persons, Mr.
Salcido, made statements claiming that he also held US
citizenship at the time of his arrest. The Court was convinced
that evidence of his US citizenship sufficiently established
that he held dual citizenship at the time of his arrest.
 Given what is discussed above, the Court held that the US
had the duty to inform without delay the persons, except Mr.
Salcido, subject of this case of their right to have their
consult posts notified of their arrest and detention if they so
wish.
2. No. For 45 persons, no information was given to them as to
their rights under the Convention. For 6 persons,
information was given long after they were arrested and
indications of their Mexican citizenship realized. For 1
person, although information was given 40 hours after his
arrest and detention, his Mexican citizenship was realized
from the moment he was arrested.
 As to 45 persons subject of this arrest, they were never
informed of their rights under the Convention. The US
claimed that they also held US citizenship. However, the fact
of US citizenship was not established, as stated above. The
circumstances of their arrest and detention also provided no
indication that they were US citizens. The police records
either showed that they were born in Mexico or they were
carrying immigration cards at the time of their arrest. Some
have been said to be US citizens during their trials. However,
the Court said, that it does not matter if a person is shown to
be a citizen of the receiving state during the trial. What
matters is that at the time of his arrest and detention, it is
realized that he is a citizen of another state and not of the
receiving state.
 As to 1 of the 45 persons, the US made the excuse that the
agent who arrested said person did not inform him of his
rights under the Convention because he was a convict who
escaped from Mexico. The said agent assumed that said
person would not want to inform the consular office of the
country from which he escaped that he was in the US and
was arrested and detained. However, the Court said that no
assumption must be made as to the wishes of an alien
arrested and detained. The Convention mandates that he is
informed of his rights without delay, and only he has the
discretion to decide whether or not to contact the consular
office of his country.
 As to 7 persons, since they were informed after their arrest
of their rights under the Convention, there was a question as
to whether or not they were informed without delay. The
14
 Court needed to interpret the meaning of the words “without
delay.”
 Mexico interpreted it as immediately and before any
interrogation of the person arrested. To support this
interpretation, Mexico asserted that the purpose of the
Convention is to enable a state to provide timely assistance
and protection to its citizens residing and sojourning in a
foreign land, especially when they are arrested. It claimed
that the rights under the Convention formed part of due
process. It also pointed out the proceedings recorded in the
travaux préparatoire wherein UK’s proposal to use the
words “without delay” instead of “without undue delay” was
accepted in order not to imply that certain delay was
acceptable and wherein no objection was made to USSR and
Japan when they said that the words would mean
immediately.
 The US interpreted it as giving the receiving state reasonable
time to inform the alien arrested and detained.
 The Court held that the proper interpretation is that when
the receiving state realizes that a person holds citizenship of
another state, it must inform said person of his rights under
the Convention. This realization may occur after the actual
arrest of the person. The Court said that the Convention’s
stated purpose is to facilitate consular relations, contrary to
what was asserted by Mexico. It cannot be an element of due
process, because the Convention talks of providing legal
assistance, not the consular officers themselves doing legal
services and representation. It looked into the different
translations of the Convention and found the dictionary
meanings insufficient to make an interpretation. It noted
that during the diplomatic conference when the Convention
was drafted, there was no agreement as to the time limit
when information is to be given to the person arrested. The
present wording was a compromise.
 The Court, however, made the suggestion that the
enforcement of the rights and obligations under the
Convention may be greatly enhanced if the rights of a person
under the Convention would be read/recited alongside the
Miranda rights.
 Applying the interpretation to the facts of the case, the Court
found that the US failed in its obligation to inform them
without delay. The 6 of the 7 persons were informed long
after they were arrested. In fact, some of them were
informed only when they were already in death row. The
circumstances of their arrest and detention also provided no
indication that they were US citizens. The police records
either showed that they were born in Mexico or they were
carrying immigration cards at the time of their arrest. As to
the last person, he was informed 40 hours after his arrest.
However, his Mexican citizenship was realized from the time
he was arrested.
3. The US did not comply with its obligation to inform
without delay the consular posts of Mexico regarding the
Mexican citizens arrested and detained. As to one person,
the consular post in the district where he was arrested
was informed 5 days (3 working days) after his arrest,
hence with respect to him, US was able to comply with its
obligation.
 As mentioned above, no information as to their rights under
the Convention was given to 45 persons. Because no
information was given to them, they could not exercise their
will as to whether or not to inform the consular post of
Mexico. Because of this, the right of Mexico to be informed of
their arrest was also violated.
 From the violation to inform the arrested persons, Mexico
was also deprived of its rights under Article 36(1)(a) and
(1)(c). The Court said, however, that although Article(1)(c)
talks of legal assistance to the sending state’s citizens, the
State may still provide the same even if the receiving state
fails in its duty to inform the consular post of the sending
state of a citizen of the sending state.
4. No. Breach of an engagement involves an obligation to
make reparation in adequate form.
 What is ”in adequate form” is subject to the facts of each
case. This case is similar to the LaGrand case (Germany v.
US) wherein the Court held that where a person has been
detained for a long time due to violation of obligations under
the Convention, an apology is not enough; the receiving state
must provide for a process of review and reconsideration
taking into account the effects of the violation of obligations
under the Convention.
 In accordance with Article 36(2), the said reparation shall be
done in accordance with municipal law, but in a manner as
to give effect to the intentions of the Convention. Mexico
argued that the remedy must be restitutio in integrum since
municipal law doctrines in the US, specifically the default
rule, makes it impossible to argue violations of the
Convention in review and appeal proceedings. The US argues
that although the default rule exists, clemency proceedings
are not subject to the default rule, and hence, they provide
effective review and reconsideration that takes into account
effects of violating the Convention.
 The default rule states that where a person fails to present
an argument in trial, he shall not be allowed to present the
same on appeal. The Court held that this rule does not
necessarily preclude reparation in adequate form. The facts
of a case must be taken into consideration. Reparation in
adequate form cannot be had only when the rule prevents a
person from raising the issue of violation of the convention
in a later proceeding, when in the first place, it was not raise
because the accused and/or his counsel were unaware of the
rights of the accused under the Convention through the fault
of the receiving state’s agent by not giving information as to
such rights. However, except for 3 persons who have
exhausted the procedures under US criminal procedure, the
Court said it was too early to make a determination since the
cases of the other persons subject of this case were pendente
lite. The Court also said that the review and reconsideration
must generally be judicial in character, not executive
clemency proceedings.
Some notes on procedural issues: Since we are talking of
subjects of international law, the following seems to be of
interest. The US argued that it was premature for the ICJ to take
jurisdiction of the case because Mexico has not exhausted
municipal remedies. The ICJ said that in cases where a state bases
15
its claims upon the violation of its citizens’ rights, it must first
assert that right under municipal jurisdiction. Only when the
same has been done may it take the matter to the international
court. However, in the case, the ICJ took note of the fact that
Mexico did not only anchor its claims upon violation of individual
rights of its citizens, but also in its own rights. This means that
Mexico is claiming direct and indirect violation against it. In this
case, according to the court, there is no need to assert its claims
under municipal jurisdiction first.
Article 55. Lex specialis: These articles do not apply where
and to the extent that the conditions for the existence of an
internationally wrongful act or the content or
implementation of the international responsibility of a State
are governed by special rules of international law.
 Context: When defining the primary obligations that apply
between them, States often make special provision for the
legal consequences of breaches of those obligations, and
even for determining whether there has been such a breach.
 Reflects the maxim lex specialis derogate legi generali
 Assumption: special rules in question have at least the same
legal rank as those expressed in the articles; the present
articles operate in a residual way.
 It will depend on the special rule to establish the extent to
which the more general rules on State responsibility in the
articles are displaced by that rule. In some cases, only the
consequences specified are to flow (determined by the
special rule), and so Article 55 applies. In others, one aspect
of the general law may be modified, leaving other aspects
still applicable.
 There must be some actual inconsistency between the two
provisions, or else a discernible intention that one provision
is to exclude the other. It is a question of interpretation.
 This Article is designed to cover both “strong” forms of lex
specialis (such as self-contained regimes) as well as “weaker”
forms (such as specific treaty provisions on a single point).
 This applies to the articles as a whole.
Article 56. Questions of State responsibility not regulated by
these articles. The applicable rules of international law
continue to govern questions concerning the responsibility
of a State for an internationally wrongful act to the extent
that they are not regulated by these articles.
 Functions:
o Preserves the application of the rules of customary int’l
law concerning State responsibility on matters not
covered by the articles
o Preserves other rules that stem from the law of treaties
or other areas of int’l law
 Complements Article 55, applies to the whole regime of the
articles
 The articles do not purport to state all the consequences of
an internationally wrongful act. There is also no intention of
precluding the further development of the law on State
responsibility.
o E.g., the principle expressed in ex injuria jus non oritur
may generate new legal consequences in the field of
responsibility.
 Considers both customary int’l law and treaties (“applicable
rules”)
 The present articles are concerned with legal effects of a
breach of an int’l obligation that stems from the law of
treaties or other areas of law, not from the rules of State
responsibility.
Article 57. Responsibility of an international organization.
These articles are without prejudice to any question of the
responsibility under international law of an international
organization, or of any State for the conduct of an
international organization.
 A saving clause which reserves a) any question involving the
responsibility of int’l orgs; and b) any question concerning
the responsibility of any State for the conduct of an int’l org.
 “International organization” – intergovernmental
organization (VCLT), possessing separate legal personality,
as contrasted to situations where States act together through
organs different from int’l orgs.
 If a State seconds officials to an international organization so
that they act as organs or officials of the organization, their
conduct will be attributable to the organization, not the
sending State, and will fall outside the scope of the articles.
 This article excludes from the scope of the articles issues of
the responsibility of a State for the acts of an int’l org, i.e.,
those cases where the international organization is the actor
and the State is said to be responsible by virtue of its
involvement in the conduct of the organization or by virtue
of its membership of the organization.
 Covers only what is referred to as the derivative or
secondary liability of member States for the acts or debts of
an int’l org.
Article 58. Individual responsibility. These articles are
without prejudice to any question of the individual
responsibility under international law of any person acting
on behalf of a State.
 The articles as a whole do not address any question of the
individual responsibility under int’l law of any person acting
on behalf of a State.
 Individual responsibility – the responsibility of individual
persons, including State officials, under certain rules of
international law for conduct such as genocide, war crimes
and crimes against humanity.
 This article does not exclude the possibility of developments
in the field of individual civil responsibility, hence the use of
the general term “individual responsibility.”
 The question of individual responsibility is in principle
distinct from the question of State responsibility.
Article 59. Charter of the United Nations. These articles are
without prejudice to the Charter of the United Nations.
 Article 103 of the Charter of the United Nations: “[i]n the
event of a conflict between the obligations of the Members of
the United Nations under the present Charter and their
obligations under any other international agreement, their
obligations under the present Charter shall prevail.”
16