Czech Yearbook Vol. 4 2013

THE ILC ARTICLES ON STATE RESPONSIBILITY: A REFLECTION YEARS LATER

present aim of countermeasures is just to procure the cessation of the breach (if it is

continuing) of an international obligation by the wrongdoer and to achieve reparation

for the injury. These countermeasures must be suspended if the internationally

wrongful act has ceased and the possible dispute is submitted in good faith to a court

or tribunal with the authority to make decisions binding on the parties.

On the other hand, the current countermeasure which in its application goes

beyond the limits prescribed by international law (by rules of non-derogable status)

is no longer lawful or at least legitimate; and in that case conduct adopted by the

State that is not in conformity with an international obligation remains wrongful

(prohibited countermeasures).

4. The ILC conception of self-defence

The conception of self-defence is treated in only one place, namely, under those

circumstances precluding wrongfulness (Part One, Chapter V, Art. 34 [1996], Art. 21

[2001]).

Though countermeasures

and self-defence constitute different reactions

to different wrongful acts, they serve the same purpose, namely, to combat breaches of

international obligations and restore a situation in conformity with international law.

Even in the beginning of the relevant commentary to Article 21 of the draft, dealing

with the conception of self-defence in its final version, the Commission observed

that it is “an exception to the prohibition against the use of force in international

relations” and that this statement “is undisputed”.

The Commission found inspiration in the nearly twenty year old (1980) text of the

first reading commentary to the then Article 34 that reads as follows: “self-defence as

a definite exception, which cannot be renounced, to the general prohibition on recourse

to the use of armed force”.

Only in that previous text can we find the indispensable

rationale providing reasoning for the inclusion in circumstances precluding wrongfulness.

But even in this connection the reasoning used there is probably not correct.

Namely, there is the point of not permitting derogation of a peremptory rule. The

text reads as follows: “(…)[A]s in the case of the other circumstances dealt with in

Chapter V, the effect of a situation of self-defence underlying the conduct adopted by

the State is to suspend or negate altogether (…), the duty to observe the international

obligation (…) to refrain from the use or threat of force in international relations.”

Article 34

of the draft provisionally adopted on first reading: “The wrongfulness of an act of a State not

in conformity with an international obligation of that State is precluded if the act constitutes a lawful

measure of self-defence taken in conformity with the Charter of the United Nations.”

Article 21

of the

draft on final reading is only a little bit different: “The wrongfulness of an act of a State is precluded if

the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United