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CYIL 4 ȍ2013Ȏ
relevant is the fact that the category of circumstances precluding wrongfulness has
been used for explanation of the concept “countermeasures”. Many criticisms on this
matter have been stated. The view is even expressed that the provisions concerning
countermeasures are a striking anomaly in the draft articles. This is because
countermeasures are treated in two different places, i.e. (outside of Circumstances
precluding wrongfulness, Part One, Chapter V) and also in PartThree (Implementation
of State responsibility) and its Chapter II, whereas other cases are not – mainly self-
defence being as well a reaction to an international offence that has been committed
previously.There is no good reason why countermeasures should be treated in this way.
15
Some Governments even require that it is clearly necessary to refer to the right to take
countermeasures.
16
This same meaning was expressed by the then Czech member of the
ILC, Mr.
Václav Mikulka
(1992–1998): “(…) (A)n injured State had the right (
sic
)
to
resort to countermeasures, while making it quite clear that resort to countermeasures
was not a direct and automatic consequence of the commission of an internationally
wrongful act, but was allowed only after the demands addressed to the wrongdoing
State by the injured State to obtain cessation of, or reparation for, the internationally
wrongful act had failed to meet with an adequate response”.
17
But the ILC utilizes the term “right to take countermeasures” only in Article 54,
dedicated to conditions of the use of so called collective countermeasures. Article 54
stipulates: “
Measures taken by States other than an injured State
. This chapter does not
prejudice the right (
sic
) of any State, (…), to invoke the responsibility of another
State, to take lawful measures against that State to ensure cessation of the breach and
reparation in the interest of the injured State or of the beneficiaries of the obligation
breached.
”18
A further substantial difficulty concerns this provision in the draft
Article 54 which would permit any State, in the case of ‘serious breach’, to take
countermeasures ‘in the interests of the beneficiaries of the obligation breached’.
19
This above-mentioned general feature serves to distinguish the application of
these countermeasures from the mere exercise of the right to obtain reparation for
damage. The international law requires the State that is the victim of a breach of
a particular international obligation to not resort to such action of countermeasures
until it has first sought adequate reparation and failed to obtain this reparation. It
should be noted that past punitive actions of reprisals are already outlawed. And the
15
Cf. Comments of Governments, United Kingdom of Great Britain, A/CN.4/515, p. 76.
16
ibid
. p. 76 (United Kingdom of Great Britain): “It is clearly necessary to refer in general terms to the
right to take countermeasures, and in this connection reference may be made to the constraints that are
necessary to protect States against possible abuses of the right to take countermeasures. The manner in
which the draft articles approach this task is, however, unsatisfactory.”
17
Cf. YILC 1992, Vol. I, p 172, par. 2. This view of Mr. Mikulka is, however, in contradiction
to the official statement of the Czech Government. In. A/CN.4/488 (25 March 1998), p. 114:
“(…) (C)ountermeasures are not considered to constitute a ‘right’ per se of an injured State.”
18
Cf. Report of ILC, A/56/10, 2001, In par.1 of the commentary to Article 54: “Chapter II deals with
the right (
sic
) of an injured State to take countermeasures against a responsible State in order to induce
that State to comply with its obligations of cessation and reparation.”
19
Comments of Governments A/CN.4/515, United Kingdom of Great Britain, p. 89.