20 / 350
ČESTMÍR ČEPELKA
CYIL 4 ȍ2013Ȏ
Just this conclusion often produces the rhetorical question: “Would it not be
better if they (these Articles) remained an annex of a resolution adopted by the
General Assembly?”
5
The advocates of this rhetorical question often reach the
view that ‘most of the rules contained in these articles are already considered to be
a codification of customary international law by the doctrine of international law.’
6
Only a few States, in their comments and observations, criticize the content of the
draft of the Articles on Responsibility of States. So the Netherlands observe: “(…) the
elements in the draft that could be regarded as
de lege ferenda
or progressive development
will come under pressure (for example, countermeasures and serious breaches).”
7
The ILC conception of countermeasures could hardly be allowed to guide the
continuing development of the customary law of State responsibility. This is because
the notion itself as described by the ILC is inconsistent with the requirements of
formal logic in legal thinking.
3. The ILC conception of countermeasures
The countermeasures or (non-forcible) reprisals are perhaps the most difficult
and controversial aspect of the whole regime of State responsibility, as well as the
most sensitive issue in international disputes related to this domain. They are, in the
first place, treated by the ILC under circumstances precluding wrongfulness (Part
One, Chapter V)
8
and later in Part Three, Chapter II, with this Part dedicated to
the implementation of the international responsibility of a State (Articles 49 to 54).
Under circumstances precluding wrongfulness the purpose of countermeasures was
described as a measure that is legitimate under international law against another State
as a reaction to an international offence in consequence of an internationally wrongful
act of that responsible State.
9
In other words and according to its commentaries,
10
it
is a measure permissible in international law which this other State has performed
committed previously. The lawfulness of the conduct of the State, although that
conduct is not in conformity with the requirements of an international obligation, lies
in the fact that the circumstance exhibited by the situation in question exceptionally
renders
the obligation inoperative.
Once again, there is no wrongfulness because, in
5
See Petr Válek, op. cit. supra, p. 296.
6
ibid
. Petr Válek, p. 297. In this connection reference is made to a manual of international law written
by Č. Čepelka, P. Šturma,
Mezinárodní právo veřejné,
2008, p. 572. Nevertheless, at this point it
is only mentioned that the relevant resolution with the ILC Articles on State responsibility in the
annex (i.e. A/RES/56/83, 2001) is the first authoritative statement in a written form of customary
general international rules on State responsibility (
první autoritativní vyjádření v písemné formě
). The
codification of customary international rules in a form stating the law could only be done through
convention as an international codifying convention; this is mentioned
ibidem
on page 109.
7
See A/CN.4/515 (19 March 2001), section “Final form of the draft articles”, p. 19.
8
In Article 30 of the so called first reading on 1996 and in Article 22 of the final (second) version
on 2001.
9
This is the wording of the first reading; the final text is different and rather descriptive. See below..
10
Cf. ILC Report, 1979, A/34/10, p. 115 et seq. (Art, 30), ILC Report, 1996, A/51/10, p. 66 et seq.
(Art. 47), and ILC Report, 2001, A/56/10, p. 75 (Art. 22), and p. 128 et seq. (Art. 49 et seq.).