International Law by Prof.

Pierre d’Argent
Week 6: Claiming responsibility

Contents

THE NO TION O F RES PONS IBILITY AN D THE CONCEPT O F

INTERN ATION ALLY WRONGFUL ACT ............................................... 3
TH E NOTION OF RESPONSI BILITY I N I NTERNATIONAL LAW ................. 3
TH E OBJECTIVE ELEMENT OF TH E I NTERNATION ALLY W RONGF UL ACT :
TH E BREACH OF AN I NTERNATIONAL OBLIGATIO N .............................. 6
CIRCUMSTANCES PRECLU DING W RONGFULNESS: BREACH WITH OUT
RESPONSIBI LITY .................................................................................. 9
RESPONSIBI LITY WITH OUT BREACH, ACCOUNT ABI LITY AND
COLLECTI VE RESPONSI BILITY............................................................ 14
ATTRIBUTION O F IN TERN ATION ALLY WRONGFUL ACTS ............ 15
TH E SUBJECTI VE ELEME NT OF THE I NT ERNATI ONALLY W RONGF UL
ACT : ATT RIBUTION ............................................................................ 15
ATTRI BUTI ON OF PRIVATE ACT S (1) .................................................. 18
ATTRI BUTI ON OF PRIVATE ACT S (2) .................................................. 20
EFFECTIVE CONTROL UPHELD ............................................................ 23
RESPONSIBI LITY OF A ST ATE IN CONNECTI ON WITH THE ACT OF
ANOTH ER ST ATE ................................................................................ 27
ATTRI BUTI ON T O I NT ER NATIONAL ORGANIZATIO NS ......................... 29
RES PONS IB ILITY AND NEW OBLIGATIONS .................................. 31
TH E NEW OBLIGATIONS ARI SING F ROM I NTERNATIONAL
RESPONSIBI LITY: CESSATI ON ........................................................... 31
TH E NEW OBLIGATIONS ARI SING F ROM I NTERNATION AL
RESPONSIBI LITY: REPA RATI ON ......................................................... 33
TH E RIGHT OF I NDIVID UALS T O REPARATION ................................... 39
SERIOUS BREACHE S OF OBLI GATI ONS UNDER JUS COGENS NORM S . 40
INVO KIN G RES PONS IBILITY ......................................................... 41
RESPONSIBI LITY INVOKED BY THE I NJURED STAT E .......................... 41
H OW T O I NVOKE RESPON SIBI LITY? ................................................... 44
RESPONSIBI LITY INVOKED BY A STAT E OTHER THAN TH E I NJURED
STAT E ................................................................................................ 47

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OBLIGATI ONS ERGA OM NES (PARTES)............................................... 49
TH E ROHI NGYA GENOCID E CASE ....................................................... 54
COUN TERMEAS URES ........................................................................ 56
TH E NOTION OF COUNTE RMEASURES ................................................ 56
LIMITS T O TH E EXERCI SE OF COUNT ERMEASURE S ............................ 58
COUNT ERMEASURES BY OTH ER ST ATES TH AN TH E INJURED ST ATE? 62

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THE NOTION OF RESPONSIBILITY AND THE
CONCEPT OF INTERNATIONALLY WRONGFUL ACT

THE NOTION OF RESPONSIBILITY IN INTERNATIONAL

LAW
The question I would like to address now is straightforward: what happens when international
obligations are breached, that is when international law is not duly applied?
In other words: what are, under international law, the legal consequences of internationally wrongful
acts?
Asking such a question is asking about the regime of international responsibility.
Of course, responsibility is first and foremost a moral concept, but it is also a legal concept and it exists,
in various forms (from criminal responsibility to civil or tortious responsibility), in every legal system.
What the rules on responsibility have all in common is the fact that they come into play when the
conduct of a legal subject does not conform with what is required from it under the law.
In order to preserve the integrity of the legal order and to protect the victim of the breach, the breach
is not left without legal consequences, those consequences being required under the rules on
responsibility.
In that sense, the rules on responsibility are said to constitute together "secondary rules" which are
triggered when obligations that are owed under "primary rules" commanding certain conducts are
breached.
The primary rules are the substantive obligations created through the various processes that we
identified as the sources of international law.
And the secondary rules on international responsibility are rules of customary international law that
automatically apply in case an obligation under a primary rule is breached.
Those customary rules have been codified and developed over the years by the International Law
Commission.
The ILC took about half a century to codify the customary rules relating to State responsibility, and the
United Nations General Assembly finally took note in 2001 of the draft Articles prepared by the ILC.
It is entitled Articles on State Responsibility for Internationally Wrongful Act, and I'll often use the
acronym ARSIWA to refer to them.
The work of the ILC is essential in that regard and it is just impossible today to speak about international
responsibility without referring to it.
The Articles were elaborated by the ILC on the basis of a careful digestion of State practice and they
were adopted by the General Assembly without any opposition and without a vote.

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It is usually therefore considered that they reflect customary international law to a very large extent.
And furthermore, since the adoption of the Articles, States and courts have referred to them and so
they confirmed their customary status.
Those Articles undoubtedly constitute today acceptable law on State responsibility.
And let me say a few words now about the intellectual and the conceptual foundation of the ILC work
on international responsibility.
To a large extent, the Articles on State Responsibility conceptually stem from the work of Roberto Ago,
an Italian scholar who had been one of the key special rapporteur of the ILC on the topic of State
responsibility and who later became judge at the International Court of Justice.
Other special rapporteurs were involved in the work of the ILC on State responsibility and they all built
from the conceptual foundations that was laid down by Ago.
To name a few of those rapporteurs: notably Willem Riphagen, a Dutch jurist, Gaetano Arangio-Ruiz,
another Italian scholar, and finally James Crawford from Australia who was professor at Cambridge for
many years.
And Crawford concluded the work of the ILC on the topic in 2001 and he was later elected judge at the
ICJ in 2014.
The conceptual breakthrough that was brought over by Roberto Ago -- and which resulted from earlier
work dating from the 1930's under the influence of his master Dionisio Anzilotti -- that breakthrough
was to consider that there was one unified regime of responsibility in international law, that
responsibility automatically stemmed from the commission of any internationally wrongful act and
that all the consequences- all the legal consequences- resulting from any wrongful act were forming
part of the secondary rules on State responsibility.
According to Roberto Ago, those legal consequences are of two different types, and those are
elaborated under the Articles on State Responsibility.
On the one hand, any wrongful act triggers the substantial obligation to make good the injury resulting
from it. In domestic law, this could be called the "civil" or tortious side of responsibility.
On the other hand, and because international law is a decentralized legal order, the commission of a
wrongful act also gives rise to the possibility for the injured State to take certain measures.
Measures that are called "counter-measures" in order to protect itself from the wrongful act and to
put pressure on the State that is responsible for it.
In domestic law, this would rather correspond to the criminal, the sanctioning, side of responsibility,
but of course this comparison is, as we shall see, not perfectly adequate.
All those substantial and instrumental consequences are governed by the rules on State Responsibility
for Internationally Wrongful Act.

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Article 1 of the Articles on State Responsibility for Internationally -ARSIWA- finally adopted by the
General Assembly in 2001, this Article 1 reflects the conceptual views of Ago and defines international
responsibility as follows: "Every internationally wrongful act of a State entails the international
responsibility of that State.".
In other words, what triggers international responsibility is the commission of an internationally
wrongful act -- and of a wrongful act only.
There is no need that the internationally wrongful act results in an injury for responsibility to exist.
And responsibility results from a behaviour which is objectively contrary to an international obligation,
irrespective of any fault being committed.
Article 2 continues by stating the elements of an internationally wrongful act.
It reads as follows: "There is an internationally wrongful act of a State when conduct consisting of an
action or omission: (a) Is attributable to the State under international law; and (b) Constitutes a breach
of an international obligation of the State.".
In other words, an internationally wrongful act is made of two elements.
An objective element, which is the fact that a conduct consisting of an action or omission does not
conform with the international obligation of the State.
And a subjective element, which is the fact that such a conduct is legally attributable to the State
"under international law".
Attribution as we shall see is a central issue in international responsibility because States are abstract
entities and they only act through human beings.
In the following sections, I'll respectively address the objective and subjective elements making
together the internationally wrongful act triggering international responsibility.
The Articles on State Responsibility deal first with attribution and then with wrongfulness, but, for the
sake of convenience, I'll reverse that order and I'll start with wrongfulness.
In that regard, Article 3 of the Articles on State Responsibility states that: " The characterization of an
act of a State as internationally wrongful is governed by international law.
Such characterization is not affected by the characterization of the same act as lawful by internal law."
And this is fundamental and it reflects an axiomatic principle that you know already, according to which
a State cannot rely on its internal law in order to escape its international obligations.
In a case between the United States of America and Italy, the International Court of Justice recalled
that "Compliance with municipal law and compliance with the provisions of a treaty are differen t
questions.
What is a breach of treaty may be lawful in the municipal law and what is unlawful in the municipal
law may be wholly innocent of violation of a treaty provision."

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Those three Articles form together the general principles governing the law of State responsibility for
internationally wrongful act.
In substance, the same principles apply to the responsibility of international organizations when they
commit internationally wrongful acts.
The ILC has also codified the rules on international responsibility of international organizations.
And its work on this topic was conducted by another Italian scholar, professor Giorgio Gaja who was
elected judge at the ICJ in 2011, just after the General Assembly also took note of the completed work
of the ILC on the subject.
Conceptually, the Articles on the Responsibility of International Organizations, or ARIO to use another
acronym, those Articles very much resemble the Articles on the Responsibility of States, but in this
course, and due to a lack of time, I shall concentrate on the 2001 Articles on the Responsibility of States
for Internationally Wrongful Act.
In the next reading, we'll turn to the objective element of any internationally wrongful act, that is the
breach of an international obligation.

THE OBJECTIVE ELEMENT OF THE INTERNATIONALLY

WRONGFUL ACT: THE BREACH OF AN INTERNATIONAL
OBLIGATION
As recalled in the section of Week 5 relating to the performance of international obligations, and as
the International Law Commission has put it:
"[…] it is by comparing the conduct in fact engaged in by the State with the conduct legally prescribed
by the international obligation that one can determine whether or not there is a breach of that
obligation." (Report of the Commission to the General Assembly on the work of 53rd session, YbILC,
2001, Vol. 2, Part II, Art. 12, p. 55).
Article 12 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)
conveys the same elementary idea by stating that:
There is a breach of an international obligation by a State when an act of that State is not in conformity
with what is required of it by that obligation, regardless of its origin or character.
"[R]egardless of its origin" means that it does not matter whether the obligation breached is to be
found in a treaty, or if it is a rule of customary international law, a general principle of law, a unilateral
undertaking by the State concerned or a unilateral act of an international organization binding on that
State.

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"[R]egardless of its […] character" means that it does not matter whether the obligation breached is
an obligation of result, or an obligation of conduct, or an obligation to prevent, etc.
Article 13 ARSIWA requires that the international obligation breached be in force and binding on the
State when it acted:
An act of a State does not constitute a breach of an international obligation unless the State is bound
by the obligation in question at the time the act occurs.
In the Island of Palmas case (see Week 2, Elements of Statehood), arbitrator Max Huber famously
considered that:
"[A] juridical fact must be appreciated in the light of the law contemporary with it, and not of the law
in force at the time when a dispute in regard to it arises or falls to be settled." (PCA, Island of Palmas

(Netherlands/United States of America) , 4 April 1928, UNRIAA, vol. II, at p. 845).

That essential principle of intertemporal law is called the "contemporaneity principle": there is no
wrongful act, and hence no international responsibility, if the obligation allegedly breached did not
exist as an obligation for the State at the moment of its impugned conduct. International responsibility
is never retroactive and the legality of a conduct must be assessed in light of the rules binding on the
State at the time of its conduct.
For instance, and despite having been morally abhorrent, slavery was not prohibited under
international law for many centuries and it was only (universally) outlawed around 1820. Claiming that
States incur international responsibility for having engaged in slave-trade prior to that date is not
legally sound. However, States may accept ex gratia to be morally responsible for past wrongs that
were not wrongful at the time they occurred.
If the act is wrongful at the time it occurred, responsibility for it remains, even if the obligation
breached has been replaced or terminated at the time of the claim: the principle of incurred rights is
another feature of intertemporal law.
Article 14 ARSIWA is about the extension in time of wrongful acts, which is another feature of their
temporality. The distinction between instantaneous breaches and continuing breaches, which is of

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great importance in order to determine if the obligation of cessation is owed (see below), is reflected
in paragraphs 1 and 2 of Articles 14:
1. The breach of an international obligation by an act of a State not having a continuing character
occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character extends
over the entire period during which the act continues and remains not in conformity with the
international obligation.
Instantaneous wrongful acts are for instance: the assassination of a foreign diplomat, the killing of
prisoners of war, the destruction of a single military target abroad, torturing of an inmate, etc. The
continued effects of such acts has no influence on their instantaneous character.
Wrongful acts that extend over time, and are therefore of a continuing character, are very frequent in
practice: the continued occupation of foreign territory, the wrongful detention of individuals, the
continued seizure of property without expropriation, the failure to conduct judicial enquiry over
wrongful killings, etc. Wrongful acts that extended over time may have come to an end by the time of
the claim: while their ongoing character will be lacking, their temporal extension will nevertheless need
to be taken into account.
Article 14, paragraph 3, relates to the temporal dimensions of the breach of a particular category of
obligations, i.e. the obligation to prevent certain outcomes:
3. The breach of an international obligation requiring a State to prevent a given event occurs when the
event occurs and extends over the entire period during which the event continues and remains not in
conformity with that obligation.
Article 15 ARSIWA deals with a further category of wrongful acts having a continuing character and
their extension in time: composite acts.
Article 15 Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or omissions defined
in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions
or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the actions or
omissions of the series and lasts for as long as these actions or omissions are repeated and remain not
in conformity with the international obligation.
Some of the most serious internationally wrongful acts are composite acts within the meaning of
Article 15: genocide, apartheid, crimes against humanity, systematic acts of racial discrimination, etc.
Less serious acts, like systematic discriminatory trade policies prohibited under trade agreements, can
also constitute composite acts. In all these cases, single acts may be separately wrongful as such under
another heading, but it is their accumulation which gives rise to the composite act, the obligation

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breached being "defined in terms of the cumulative character of the conduct, i.e. […] the cumulative
conduct constitutes the essence of the wrongful act." (Report of the Commission to the General
Assembly on the work of 53rd session, YbILC, 2001, Vol. 2,Part II, Art. 15, p. 63). For instance, individual
acts of racial discrimination may be wrongful as such, but it is their accumulation that may constitute
apartheid; likewise, genocide is different in kind from racially of ethnically motivated killings that
remain isolated.

Photo credits: Max Huber, Red Cross, via Wikipedia Commons

CIRCUMSTANCES PRECLUDING WRONGFULNESS:

BREACH WITHOUT RESPONSIBILITY
Articles 20 to 25 ARSIWA define six "circumstances precluding wrongfulness", i.e. circumstances that
provide a shield against an otherwise well-founded claim that a wrongful act has occurred. When any
of those circumstances exist, the State conduct which is objectively not in conformity with any of its
international obligations will not give rise to responsibility. The international obligation which has not
been complied with is not terminated nor annulled by those circumstances; rather, each of those six
circumstances provide for an excuse for the non-performance of international obligations. Under those
circumstances, international responsibility does not arise: the wrongfulness of the conduct is only
apparent and is precluded.
However, such excuse or justification is not absolute:

• it exists only as long as the circumstance in question subsists, so that compliance with the
obligation is owed when the "circumstance precluding wrongfulness no longer exists" (Article
27 (a));
• none of those circumstances preclude the wrongfulness of "any act of a State which is not in
conformity with an obligation arising under a peremptory norm of general international law"
(Article 26). In other words, a violation of an obligation arising under a jus cogens norm (see
Article 53 of the Vienna Convention on the Law of Treaties -- see Week 4) cannot be excused
or justified by any of those circumstances. Jus cogens obligations are owed in all
circumstances.

Furthermore, the absence of any responsibility for the breach excused is without prejudice to "[t]he
question of compensation for any material loss caused by the act in question" (Article 27 (b)): the State
invoking the precluding circumstance may nevertheless agree to pay compensation for the material

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loss caused by its action, despite the fact that its unlawfulness has been excused. Such payment would
be made ex gratia since no responsibility is incurred as a result of the circumstance.
The six circumstances precluding wrongfulness are defined as follows -- please read carefully:

Article 20 Consent
Valid consent by a State to the commission of a given act by another State precludes the wrongfulness
of that act in relation to the former State to the extent that the act remains within the limits of that
consent.
Consent as a circumstance precluding wrongfulness does not require many explanations. In order to
preclude the wrongfulness of the act consented to, consent must be valid, i.e. it must not be defective
(see Week 4, Treaties). This requires that consent be expressed by a person duly authorized to speak
on behalf of the State and that such consent be freely given. Furthermore, and as required under
Article 20, the act must remain within the limits of the consent: if a State consents to the presence of
foreign troops on its territory to fulfil a certain purpose, any act of those troops going beyond such
purpose cannot be legally justified on the basis of the consent given.

Article 21 Self-defence
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 Nations.
Self-defence will be studied later in the course, when dealing with the prohibition to use force in
international relations (see Week 8).

Article 22 Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards
another State is precluded if and to the extent that the act constitutes a countermeasure taken against
the latter State in accordance with Chapter II of Part three.
Countermeasures will be studied at the end of this Week 6. In essence, a countermeasure is a breach
of an international obligation that is excused because it is committed in response to a first violation of
international law. A countermeasure is a reaction to a wrongful act: it is intrinsically illegal, but because
it reacts to another pre-existing breach, and provided that the conditions for its exercise are met (see
below), the wrongfulness of the reaction is precluded.

Article 23 Force majeure

“1. The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of
an unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.

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2. Paragraph 1 does not apply if:
(a) The situation of force majeure is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or
(b) The State has assumed the risk of that situation occurring.”.
Force majeure exists in many domestic legal systems and it reflects a common sense requirement:
nobody is expected to do the impossible. The violation of a legal obligation cannot reasonably be
blamed if compliance with that obligation was materially impossible as a result "of an irresistible force
or of an unforeseen event, beyond the control of the State."
As recalled by paragraph 2, force majeure cannot be validly invoked by a State that created, albeit in
part, such situation or if it assumed the risk of such situation occurring. For instance, a State may
invoke force majeure if one of its air force jet was derailed over a foreign territory as a result of
unforeseen and irresistible winds -- but the wrongfulness of such unauthorized flyover would not be
precluded if, despite unambiguous weather forecast, the State nevertheless decided to proceed with
the military exercise.
While the impossibility of performance may be a ground for suspending or terminating a treaty, or for
withdrawing from it (Art. 61 of the Vienna Convention on the Law of Treaties), force majeure is only a
ground for excluding the wrongfulness of an act; it does not alter the bindingness of the obligation at
stake.

Article 24 Distress
“1. The wrongfulness of an act of a State not in conformity with an international obligation of that
State is precluded if the author of the act in question has no other reasonable way, in a situation of
distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) The situation of distress is due, either alone or in combination with other factors, to the conduct of
the State invoking it; or
(b) The act in question is likely to create a comparable or greater peril.”.
In a situation of distress, compliance with the law is materially possible. However, it would be inhuman
to require such compliance because compliance would result in the death of the author of the act or
of the persons entrusted to his or her care. For instance, instead of making an unauthorized landing
on a foreign airstrip following an engine failure, the pilot of an aircraft could materially continue to
glide and crash at sea. It would be absurd if law were to require such an outcome, rather than to excuse
the minor breach resulting from the unauthorized landing. However, paragraph 2 of Article 24 requires
that the author of the act be ready to sacrifice his or her life, if not doing so "is likely to create a
comparable or greater peril" for others.

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Article 25 Necessity
“1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not
in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril;
and
(b) Does not seriously impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(a) The international obligation in question excludes the possibility of invoking necessity; or
(b) The State has contributed to the situation of necessity.”.
Pay attention to the way Article 25 is drafted: it starts by rejecting necessity as a legal justification for
the non-performance of international obligations, and then it opens a strict exception to that rejection
if two conditions are cumulatively met (paragraph 1, (a) and (b)). Even if those two conditions are met,
paragraph 2 limits the application of necessity in certain circumstances.
Necessity is probably the most controversial circumstance precluding wrongfulness, because of the
dangers it represents for the integrity of international law. The first two paragraphs of the ILC
commentary on Article 25 read as follows:
"(1) The term “necessity” (état de nécessité) is used to denote those exceptional cases where the only
way a State can safeguard an essential interest threatened by a grave and imminent peril is, for the
time being, not to perform some other international obligation of lesser weight or urgency. Under
conditions narrowly defined in article 25, such a plea is recognized as a circumstance precluding
wrongfulness.
(2) The plea of necessity is exceptional in a number of respects. Unlike consent (art. 20), self-defence
(art. 21) or countermeasures (art. 22), it is not dependent on the prior conduct of the injured State.
Unlike force majeure (art. 23), it does not involve conduct which is involuntary or coerced. Unlike
distress (art. 24), necessity consists not in danger to the lives of individuals in the charge of a State
official but in a grave danger either to the essential interests of the State or of the international
community as a whole. It arises where there is an irreconcilable conflict between an essential interest
on the one hand and an obligation of the State invoking necessity on the other. These special features
mean that necessity will only rarely be available to excuse non-performance of an obligation and that
it is subject to strict limitations to safeguard against possible abuse." (Report of the Commission to the

General Assembly on the work of 53rd session, YbILC, 2001, Vol. 2, Part II, Art. 25, p. 80).

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In the Gabčíkovo-Nagymaros case, the International Court of Justice considered that those strict
conditions reflected customary international law, but ruled that they were not met in the
circumstances of the case:
"51. The Court considers […] that the state of necessity is a ground recognized by customary
international law for precluding the wrongfulness of an act not in conformity with an international
obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted
on an exceptional basis. The International Law Commission was of the same opinion when it explained
that it had opted for a negative form of words […]. Thus, according to the Commission, the state of
necessity can only be invoked under certain strictly defined conditions which must be cumulatively
satisfied; and the State concerned is not the sole judge of whether those conditions have been met.
52. In the present case, the following basic conditions […] are relevant: it must have been occasioned
by an “essential interest” of the State which is the author of the act conflicting with one of its
international obligations; that interest must have been threatened by a “grave and imminent peril”;
the act being challenged must have been the “only means” of safeguarding that interest; that act must
not have “seriously impair[ed] an essential interest” of the State towards which the obligation existed;
and the State which is the author of that act must not have “contributed to the occurrence of the state
of necessity”. Those conditions reflect customary international law." (ICJ , Gabčíkovo-Nagymaros

Project (Hungary/Slovakia) , 25 Sept. 1997, ICJ Reports, paras. 51-52, pp. 40-41).

In 1967, a Liberian oil tanker, the Torrey Canyon, went aground on submerged rock off the coast of
Cornwall, outside the British territorial waters. The Cornish coastline was threatened by a large oil spill.
Having exhausted all other remedial means, the British government decided to bomb and sink the ship
in order to burn the remaining oil, so as to limit the coastal pollution. Even if the British governm ent
did not specifically refer to necessity as a circumstance precluding the wrongfulness of its decision to
set the ship and its cargo ablaze, that incident offers one of the few uncontroversial situations of
necessity.

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Photo credit: Map of Cornwall, UK, by Nifanion, via Wikipedia Commons

RESPONSIBILITY WITHO UT BREACH, ACCOUNTABILITY

AND COLLECTIVE RESPONSIBILITY
Under customary international law, there is no responsibility in the absence of any internationally
wrongful act.
It is however possible to create by treaty an obligation to make good the damage resulting from certain
activities, despite their conformity with international law. Those regimes are usually referred to as
"strict (or absolute) liability" regimes; they are always treaty-based and aim to strike a balance
between the need to encourage (new) activities that are dangerous, but nevertheless considered
desirable, and the need to afford protection to the victims of those activities. The duty to make good
the damage stems from the existence of the damage, no proof of any malconduct being needed.
Example of such regimes is, for instance, to be found in the Convention on International Liability for
Damage Caused by Space Objects , signed in London, Moscow and Washington on 29 March 1972. The
Convention establishes a strict liability regime for any injury caused on the surface of the Earth or to
an aircraft fly by falling satellites and other space objects. Liability is owed by the launching State or
jointly by the launching States, as defined under the Convention.
The concept of responsibility under customary international law must furthermore be distinguished
from the notion of accountability. Accountability is not a legal concept, but a moral and political notion.
It refers to the need to hold certain public authorities, most notably international organizations,
accountable for their decisions and actions. Mechanisms of accountability rely on increased
requirements of transparency, public debate and external scrutiny. If accountability is a political

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notion, those requirements can nevertheless be established under legal instruments and therefore
duly regulated under the law.
Finally, and before turning to the rules on attribution, it is important to realize that the State is
considered as an abstract single entity for the purpose of the rules on international responsibility. The
State, as a single unity, is said to bear responsibility. But by doing so, international law actually
simplifies things: indeed, while the obligation is for the State as an abstract entity, the actual
contribution to that obligation will most often be concretely borne by the citizens of the State through
various domestic mechanisms like taxation. International law stops at the attribution level and does
not go deeper, as it were, within the State. In other words, State responsibility hides the difficult moral
question of collective responsibility for wrongs committed on behalf of the nation. That question is
avoided by international law, and all the more so that the continued legal existence of States, coupled
with the absence of any time limit on claims or prescription period, allow for deferred settlements.
However, political and moral judgment will at some point be unavoidable because even the poorest
country on the planet has an unlimited capacity to pay if its reparation debt were to be fractioned over
an unlimited period of time.

ATTRIBUTION OF INTERNATIONALLY WRONGFUL

ACTS

THE SUBJECTIVE ELEMENT OF THE INTERNATIONALLY

WRONGFUL ACT: ATTRIBUTION
The non-conformity of an action or omission with an international obligation is the objective element
of any internationally wrongful act.
In addition to such non-conformity, the wrongful act must be attributable to a State or to an
international organization for the international responsibility of any of those legal subjects to exist.
Attribution is the subjective element of the internationally wrongful act. Attribution is a legal
operation.
Attribution is the operation by which the behaviour of human beings in the real world is legally deemed
to be the conduct of a subject of international law, that is a State or an international organization.
States and international organizations are indeed abstract legal entities.
Like corporations in domestic law, States and organizations do not physically act by themselves, but
they act through human beings whose behaviour is then legally attributed, imputed, to the abstract
legal entity.

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Of course, when the internationally wrongful act is an omission, the absence of any action instead of
a positive act, it will be sufficient to identify the international subject who was under the obligation to
take a specific action and failed to do so.
In such a case, attribution as a legal operation will not really take place and will be reduced to taking
note of a wrongful failure to act by the subject owing the obligation.
International responsibility will be established by identifying the character of the obligation as an
obligation to do something, to act and the failure to act by the subject owing the obligation, without
really addressing the attribution of such wrongful failure.
Attribution will be somehow implied and automatic.
Let us turn now to the rules on attribution, knowing that they are really at play when actual conducts,
rather than omissions, occurred.
The rules on attribution are customary rules of international law that are part of the secondary rules
on responsibility codified by the International Law Commission.
A careful study of the rules on attribution is not only needed in order to understand what attribution
is about, but it also helps us to understand more concretely what States or international organizations
are.
Let us concentrate on attribution to States, knowing that the rules on attribution to international
organizations are not very much different.
The basic rule on attribution is very easy to understand: a State is responsible for the conduct of any
of its organs.
Article 4 of the Articles on States Responsibility for Internationally Wrongful Act recalls that "an organ
includes any person or entity which has that status in accordance with the internal law of the State"
and that it does not matter "whether the organ exercises legislative, executive, judicial or any other
functions".
In other words, States are internationally responsible for the conduct of their governments, but also
for the conduct of their legislature or of their courts and tribunals, despite the constitutional
independence of the latter.
For instance, in 2012, in a case between Germany and Italy that will be addressed later in the course,
the International Court of Justice found the Italian Republic internationally responsible for judgments
of the Corte di Cassazione.
Moreover, under Article 4 of the Articles on State Responsibility, it does not matter whether the organ
of the State is a high-ranking official, a minister for instance, or a low-ranking civil servant, or whether
it is part of the central government of the State or of a decentralized entity or even a municipality.

16
The State can be held responsible for the conduct of any of its organs, instrumentalities or officials
which form part of its organization, whether or not they have a separate legal personality under its
internal law.
The basic rule on attribution of the conduct of State organs helps us to understand that, as a subject
of international law, the State is one single entity and it presents itself as a unity for the purpose of
international responsibility.
It is important to stress that when the State organ is a physical person, the State is responsible for his
or her conduct provided that he or she acted in his or her capacity as organ in the particular instance.
This condition is not expressed by Article 4 but it is subsumed in the notion of organ and it must be
kept in mind.
A civil servant is not organ of the State twenty-four hours a day, three hundred and sixty-five days a
year.
Sometimes, the civil servant is off-duty or on holidays. It does not act then as an organ of the State,
but as an individual and his or her action is therefore not attributable to the State.
States are also responsible for the conduct of persons or entities which are not their organs, but which
are empowered under domestic law to exercise elements of governmental authority, provided again
that such persons or entities act in such a capacity in the particular instance.
This rule of attribution is provided for under Article 5 of the Articles on State Responsibility and it is
intended to cover the situation of parastatal entities or of private companies entrusted with
governmental tasks, for instance, private security firms contracted to act as prison guards or as
immigration officials.
Also, when one State lends some of its organs to another State, the conduct of the foreign organs is
attributed to the State at whose disposal they have been placed, provided they effectively acted in the
exercise of the elements of the governmental authority of the latter State.
And this is Article 6 of ARSIWA.
Before addressing the international responsibility of States for private acts, let me conclude this video
by taking stock of the rules recalled in Article 7 of the Articles on State Responsibility.
"The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions."
In other words, the State may not escape its responsibility by claiming that its organ, or the person or
entity empowered to exercise some of its authority, has acted ultra vires, that is in excess of its
authority or in violation of specific instructions.
For instance, if a police officer tortures a foreign inmate despite clear instructions to the contrary, such
wrongful act remains legally attributed to the State.

17
Unauthorized acts and misconducts by State officials are and remain acts of the State, even if higher
organs have disowned the wrongful conduct.
Any other solution would contradict the basic principle recalled in Article 3 according to which a State
may not rely on its internal law in order to avoid being found responsible.
But again, even if acting in an unauthorized way, it remains of paramount importance that the organ,
person or entity acted in an "official" capacity, with apparent authority, rather than in a purely private
capacity.
There is however one exception to the requirement that the organ of the State acts in such capacity in
the particular instance of the wrongful act.
That exception is not to be found in the ILC Articles on State responsibility. It relates to the members
of the armed forces of a State when the State is engaged in an international armed conflict.
In such a situation, the State is of course responsible for any misconduct of its soldiers acting as soldiers
even when they have contravened to their instructions.
But the State is also responsible for any wrongful conduct of the members of its armed forces,
irrespective of the fact that those members acted in their capacity as organs of the State or not.
In time of war, in other words, the State is thus responsible for private acts of its soldiers when they
are off-duty, enjoying a military leave.
For instance, in time of war, the State is responsible for the conduct of off-duty soldiers dressed as
civilians who go to bars, have too many drinks and end up killing the local bar tender in a fight.
This specific rule is provided for under Article 3 of the Hague Rules of 1907 and it is repeated in Article
91 of the First Protocol of 1977, additional to the 1949 Geneva Conventions on the Laws of War. This
specific rule has been established in order for States to keep the discipline within their armed forces
and to protect foreign citizens.

ATTRIBUTION OF PRIVATE ACTS (1)

As mentioned earlier, States do not incur responsibility for the acts of their organs when they do not
act in their capacity as organs -- except, as we have seen, in the case of members of the armed forces
in time of war.
As a rule, individuals do not act on behalf of States and, therefore, their behaviour is not attributable
to any State.
Of course, the fact that individuals have acted in a certain way may reveal a wrongful omission by the
State: for instance, if a crowd attacks a foreign embassy and sets it ablaze, the host or receiving State
will not be responsible for the acts of the crowd as such. The acts of the crowd will not be attributed
to the host State, but such acts will reveal the failure of the State to fulfil its obligation to protect the

18
diplomatic premises, an obligation which is owed by the receiving State to the sending State under
Article 22 of the 1961 Vienna Convention on Diplomatic Relations, and it is also a customary obligation.
Because of its failure to protect the embassy from the crowd, the receiving State could be held
responsible for the damage caused by the crowd, even if the crowd's violence is not considered as such
as an act of that State.
This being said, there are situations where a State will directly bear international responsibility for the
conduct of certain individuals.
Article 9 of ARSIWA envisages a situation which has notably happened in the last days of wars, when
a territory has been freed from foreign occupation but that the State administration has not yet been
able to re-establish its authority over the territory.
In those circumstances, some individuals or groups of individuals may locally take the initiative and
may organize public services to the benefit of the community -- which is fine of course, but sometimes
those individuals will take measures that are much more questionable, like ordering summary
executions of foreigners in the name of justice.
Those individuals have not been asked and officially entrusted with such functions, but they de facto
act on behalf of the State, as if they were empowered to do so.
If that is the case, what those individuals do is attributable to the State.
This is what Article 9 provides for: "The conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in fact exercising elements
of the governmental authority in the absence or default of the official authorities and in circumstances
such as to call for the exercise of those elements of authority."
Article 10 of ARSIWA deals with the attribution to the State of the conduct of an insurrectional
movement.
If the insurrectional movement fails to take control of the government, the wrongful conduct of the
members of the movement will not be attributable to the State.
The State is fighting against the movement.
But the State will be responsible for the conduct, actions or omissions of its own organs.
However, if the insurrectional movement succeeds in its fight against the government and manages to
establish itself as the government of the State, the State will be responsible for the acts of the former
government, which is only normal.
The State will also be responsible for the acts of the new government once it becomes the government
of the State, which is only normal also.
But the State will also be responsible for the acts of the insurrectional movement at the time it was
not yet the government of the State. The wrongful conduct of the insurrectional movement will be

19
retrospectively attributed to the State, provided that the insurrectional movement succeeds and
becomes the government of the State.
And likewise, if the insurrectional movement is a separatist movement and if it succeeds in establishing
a new State on the part of the territory of the pre-existing State, the mother State, the new State will
be responsible for the acts of the movement at the time it was still fighting for independence.
And at the time the State still did not yet exist.
Finally, Article 11 of ARSIWA recalls that a State may always acknowledge and adopt the conduct of
individuals as its own, and therefore be responsible for it.
Such a situation notably happened in 1979, during the Islamic revolution in Iran, after Iranian students
stormed the US embassy in Tehran and held the diplomatic and consular staff hostage for over a year.
The case was decided by the ICJ at the request of the US.
The Court found that Iran was not responsible for the acts of the students as such at the time they
stormed the embassy, but, as mentioned earlier, that the student's action revealed a wrongful failure
by Iran to protect the diplomatic mission.
But the Court took also note of the fact that, as time was passing by, the new Iranian authorities were
praising the acts of the students, were commending them as heroes of the revolution and approving
their action.
The Supreme leader of the Iranian revolution, Ayatollah Khomeini, went so far as issuing a decree in
November 1979, stating that the embassy was a centre of espionage and conspiracy and that the US
diplomatic staff would not be freed until the US acceded to the demands of Iran.
Therefore, the Court considered that, from the moment Iran acknowledged and adopted the students'
conduct as its own the students were acting on behalf of the government and their conduct was
therefore attributable to Iran.
As the Court concluded: "The result of that policy was fundamentally to transform the legal nature of
the situation created by the occupation of the Embassy and the detention of its diplomatic and
consular staff as hostages.
The approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and
the decision to perpetuate them, translated continuing occupation of the Embassy and detention of
the hostages into acts of that State.
The militants, authors of the invasion and jailors of the hostages had now become agents of the Iranian
State for whose acts the State itself was internationally responsible.

ATTRIBUTION OF PRIVATE ACTS (2)

I must now address a more controversial issue.

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And it is dealt with under Article 8 of ARSIWA which is entitled "Conduct directed or controlled by a
State".
The question is to know to what extent and on what basis can a State be held responsible for the
conduct of persons that it sponsors and helps abroad.
You may think at different situations where a government exerts influence abroad by supporting local
groups that are sometimes engaged in violent political action, or even in terrorism.
Of course, the mere fact of helping or funding those groups in a foreign country is usually constitutive
of a prohibited interference in the domestic affairs of another State or also of other wrongful acts, the
sponsoring State being responsible for its own conduct.
But the questions goes further: is it possible to consider that the wrongful acts that are materially
committed by the local group be considered, from a legal point of view, as attributable to the
sponsoring State?
The answer to that question depends on the nature and the extent of the influence of the sponsoring
State over the group, or rather, to put it more precisely in the words of the ILC, it depends on "the
existence of a real link between the person or group performing the act and the State machinery".
A first situation needs to be distinguished: it is when the group acts upon the instructions of the
sponsoring State.
In such a case, there is no doubt that the State is responsible for the wrongful acts committed by the
individuals which have been specifically instructed by it to act in a certain way.
In such a case, the individuals are undoubtedly acting on behalf of the State because of such
instructions.
This is reflected in Article 8 ARSIWA: "The conduct of a person or group of persons shall be considered
an act of a State under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the conduct."
However, most of the time, it will be impossible to prove such instructions because of the secret
character of the involvement of the foreign State.
Therefore, the question will arise whether the direction or control by the foreign State over the
individuals could result in their conduct being attributed to that State.
Article 8 also deals with such direction or control.
However, the degree and nature of the control by the State over the conduct of the individuals or
group has been controversial.
In the early 1980's, the Sandinista government of Nicaragua was viewed by the US government as a
dangerous communist regime in Central America.

21
It was the time of the cold war and, as a usual response then, the administration of president Reagan
decided to fund and to train an armed movement opposed to the government in Managua, that
movement being called the "contras".
Nicaragua brought a case against the United States at the International Court of Justice.
In 1984, the Court ruled that it had jurisdiction to hear the case and two years later, in 1986, the Court
ruled on the merits and found the United States to be internationally responsible for several serious
breaches of international law.
The ruling was a serious blow to the foreign policy of the US.
However, the Court rejected Nicaragua's claim according to which the US should also be held
responsible for all the killings and the attacks by the contras in violation of international humanitarian
law.
The Court found that the wrongful acts of the contras were not attributable to the United States
because Nicaragua had not established that the US "had effective control of the military or paramilitary
operations in the course of which the alleged violations were committed" The Court ruled that it was
not sufficient that the US administration was funding and training the contras for their conduct to be
attributed to the US.
A general situation of dependence and support was not enough.
Further proof was needed: the proof that, in the various instances they acted, the contras were actually
acting on behalf of the US because the US had effective control over them when they acted, or that
the US directed their conduct.
Discharging such a proof is of course a very difficult, if not almost impossible task, due to the usual
secrecy surrounding the involvement of the foreign State.
And a few years later, in 1999, Mr Tadic, a Bosnian Serb, was facing trial at the International Criminal
Tribunal for the former Yugoslavia.
Some of the charges against him related to certain war crimes that only exist in the context of an
international armed conflict.
In order to justify that there had been such a conflict and that Mr Tadic had been rightly charged with
those crimes, the Tribunal considered that the acts of the Bosnian Serbs were attributable to Federal
Republic of Yugoslavia, later known as Serbia-and-Montenegro.
concluding therefore that a war had indeed existed between the Federal Republic of Yugoslavia and
Bosnia-Herzegovina.
This path of reasoning was not absolutely necessary, but it was the way chosen by the Tribunal, which
allowed it to criticize the Nicaragua judgment of the ICJ.

22
The Tribunal said that the Federal Republic of Yugoslavia could be held responsible for the crimes
committed by the Bosnian Serbs because the government in Belgrade exercised overall control over
the Bosnian Serbs.
The Tribunal held that the mere financing and equipping was not enough to establish overall control
and that some participation of Serbia in the planning and supervision of the military operations by the
Bosnian Serbs was needed.
But that there was no need to prove that Serbia directed the Bosnian Serbs to commit certain crimes,
nor that those crimes were carried out under the effective control of Serbia.
It was sufficient, said the Tribunal, to establish that Serbia exercised overall control over the Bosnian
Serbs for Serbia to be responsible for their conduct.
Those clearly diverging views of the ICJ and of the ICTY on the legal criteria for attribution of private
acts to States fuelled the legal debate and scholars spoke about the "fragmentation" of international
law.
In 2001, when the ILC finalized the Articles on State Responsibility, it opted for a careful drafting which
became Article 8 and in which the nature or degree of control is not qualified.
In 2007, in a case already mentioned in this course, the International Court of Justice ruled on the
responsibility of Serbia, the State, for the genocide committed at Srebrenica by the Bosnian Serbs.
Bosnia-Herzegovina claimed that the acts of the Bosnian Serbs were attributable to Serbia, as the ICTY
had ruled, but the Court disagreed and rejected the overall control test put forward by the ICTY,
upholding the effective control test of the Nicaragua case.
It is worth paying attention to the reasoning of the Court on that issue.
And please turn now to the next reading for that purpose.

EFFECTIVE CONTROL UPHELD

Please read the following paragraphs of the 2007 Judgment on the Genocide case:
“(4) The Question of Attribution of the Srebrenica Genocide to the Respondent on the Basis of Direction
or Control
396. As noted above (paragraph 384), the Court must now determine whether the massacres at
Srebrenica were committed by persons who, though not having the status of organs of the
Respondent, nevertheless acted on its instructions or under its direction or control, as the Applicant
argues in the alternative; the Respondent denies that such was the case.
397. The Court must emphasize, at this stage in its reasoning, that the question just stated is not the
same as those dealt with thus far. It is obvious that it is different from the question whether the
persons who committed the acts of genocide had the status of organs of the Respondent under its

23
internal law; nor however, and despite some appearance to the contrary, is it the same as the question
whether those persons should be equated with State organs de facto, even though not enjoying that
status under internal law. The answer to the latter question depends, as previously explained, on
whether those persons were in a relationship of such complete dependence on the State that they
cannot be considered otherwise than as organs of the State, so that all their actions performed in such
capacity would be attributable to the State for purposes of international responsibility. Having
answered that question in the negative, the Court now addresses a completely separate issue:
whether, in the specific circumstances surrounding the events at Srebrenica the perpetrators of
genocide were acting on the Respondent’s instructions, or under its direction or control. An affirmative
answer to this question would in no way imply that the perpetrators should be characterized as organs
of the FRY, or equated with such organs. It would merely mean that the FRY’s international
responsibility would be incurred owing to the conduct of those of its own organs which gave the
instructions or exercised the control resulting in the commission of acts in breach of its international
obligations. In other words, it is no longer a question of ascertaining whether the persons who directly
committed the genocide were acting as organs of the FRY, or could be equated with those organs —
this question having already been answered in the negative. What must be determined is whether FRY
organs — incontestably having that status under the FRY’s internal law — originated the genocide by
issuing instructions to the perpetrators or exercising direction or control, and whether, as a result, the
conduct of organs of the Respondent, having been the cause of the commission of acts in breach of its
international obligations, constituted a violation of those obligations.
398. On this subject the applicable rule, which is one of customary law of international responsibility,
is laid down in Article 8 of the ILC Articles on State Responsibility as follows:
'Article 8 Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of a State under international
law if the person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.'
399. This provision must be understood in the light of the Court’s jurisprudence on the subject,
particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in

and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph 391). In
that Judgment the Court, as noted above, after having rejected the argument that the contras were to
be equated with organs of the United States because they were 'completely dependent' on it, added
that the responsibility of the Respondent could still arise if it were proved that it had itself "directed
or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the
applicant State" (I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion:

24
'For this conduct to give rise to legal responsibility of the United States, it would in principle have to
be proved that that State had effective control of the military or paramilitary operations in the course
of which the alleged violations were committed.' (Ibid., p. 65.)
400. The test thus formulated differs in two respects from the test — described above — to determine
whether a person or entity may be equated with a State organ even if not having tha t status under
internal law. First, in this context it is not necessary to show that the persons who performed the acts
alleged to have violated international law were in general in a relationship of 'complete dependence'
on the respondent State; it has to be proved that they acted in accordance with that State’s
instructions or under its 'effective control'. It must however be shown that this 'effective control' was
exercised, or that the State’s instructions were given, in respect of each operation in which the alleged
violations occurred, not generally in respect of the overall actions taken by the persons or groups of
persons having committed the violations.
401. The Applicant has, it is true, contended that the crime of genocide has a particular nature, in that
it may be composed of a considerable number of specific acts separate, to a greater or lesser extent,
in time and space. According to the Applicant, this particular nature would justify, among other
consequences, assessing the 'effective control' of the State allegedly responsible, not in relation to
each of these specific acts, but in relation to the whole body of operations carried out by the direct
perpetrators of the genocide. The Court is however of the view that the particular characteristics of
genocide do not justify the Court in departing from the criterion elaborated in the Judgment in the
case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America) (see paragraph 399 above). The rules for attributing alleged internationally
wrongful conduct to a State do not vary with the nature of the wrongful act in question in the absence
of a clearly expressed lex specialis. Genocide will be considered as attributable to a State if and to the
extent that the physical acts constitutive of genocide that have been committed by organs or persons
other than the State’s own agents were carried out, wholly or in part, on the instructions or directions
of the State, or under its effective control. This is the state of customary international law, as reflected
in the ILC Articles on State Responsibility.
402. The Court notes however that the Applicant has further questioned the validity of applying, in the
present case, the criterion adopted in the Military and Paramilitary Activities Judgment. It has drawn
attention to the Judgment of the ICTY Appeals Chamber in the Tadić case (IT-94-1-A, Judgment, 15 July

1999). In that case the Chamber did not follow the jurisprudence of the Court in the Military and
Paramilitary Activities case: it held that the appropriate criterion, applicable in its view both to the
characterization of the armed conflict in Bosnia and Herzegovina as international, and to imputing the
acts committed by Bosnian Serbs to the FRY under the law of State responsibility, was that of the

25
“overall control” exercised over the Bosnian Serbs by the FRY; and further that that criterion was
satisfied in the case (on this point, ibid., para. 145). In other words, the Appeals Chamber took the view
that acts committed by Bosnian Serbs could give rise to international responsibility of the FRY on the
basis of the overall control exercised by the FRY over the Republika Srpska and the VRS, without there
being any need to prove that each operation during which acts were committed in breach of
international law was carried out on the FRY’s instructions, or under its effective control.
403. The Court has given careful consideration to the Appeals Chamber’s reasoning in support of the
foregoing conclusion, but finds itself unable to subscribe to the Chamber’s view. First, the Court
observes that the ICTY was not called upon in the Tadić case, nor is it in general called upon, to rule
on questions of State responsibility, since its jurisdiction is criminal and extends over persons only.
Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise
of its jurisdiction. As stated above, the Court attaches the utmost importance to the factual and legal
findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present
case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with the events
underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of
general international law which do not lie within the specific purview of its jurisdiction and, moreover,
the resolution of which is not always necessary for deciding the criminal cases before it.
404. This is the case of the doctrine laid down in the Tadić Judgment. Insofar as the 'overall
control' test is employed to determine whether or not an armed conflict is international, which was
the sole question which the Appeals Chamber was called upon to decide, it may well be that the test
is applicable and suitable; the Court does not however think it appropriate to take a position on the
point in the present case, as there is no need to resolve it for purposes of the present Judgment. On
the other hand, the ICTY presented the 'overall control' test as equally applicable under the law of
State responsibility for the purpose of determining — as the Court is required to do in the present case
— when a State is responsible for acts committed by paramilitary units, armed forces which are not
among its official organs. In this context, the argument in favour of that test is unpersuasive.
405. It should first be observed that logic does not require the same test to be adopted in resolving
the two issues, which are very different in nature: the degree and nature of a State’s involvement in
an armed conflict on another State’s territory which is required for the conflict to be characterized as
international, can very well, and without logical inconsistency, differ from the degree and nature of
involvement required to give rise to that State’s responsibility for a specific act committed in the course
of the conflict.
406. It must next be noted that the 'overall control' test has the major drawback of broadening the
scope of State responsibility well beyond the fundamental principle governing the law of international
responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons

26
acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also
by persons or entities which are not formally recognized as official organs under internal law but which
must nevertheless be equated with State organs because they are in a relationship of complete
dependence on the State. Apart from these cases, a State’s responsibility can be incurred for acts
committed by persons or groups of persons — neither State organs nor to be equated with such organs
— only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule
of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an
organ of the State gave the instructions or provided the direction pursuant to which the perpetrators
of the wrongful act acted or where it exercised effective control over the action during which the wrong
was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to
breaking point, the connection which must exist between the conduct of a State’s organs and its
international responsibility.
407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the
Respondent has incurred responsibility under the rule of customary international law set out in Article
8 of the ILC Articles on State Responsibility."
(ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro) , 26 Feb. 2007, ICJ Reports 2007, p. 43, §§ 396-407).

RESPONSIBILITY OF A STATE IN CONNECTION WITH THE

ACT OF ANOTHER STATE
In contrast with situations of attribution of conduct, Articles 16-19 ARSIWA deal with complex cases
where international responsibility is attributed to one State in connection with the act of another
State, i.e. the conduct attributed to that other State. There is no need to go too much into details about
this, but it is worth paying some attention to the rules reflected in those Articles.

Article 16 Aid or assistance in the commission of an internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by the
latter is internationally responsible for doing so if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that State.
Article 16 deals with cases that could be labelled as cases of complicity (aiding and abetting): one State
aids or assists another State in the commission of an internationally wrongful act. Article 16 states that
the aiding or assisting State "is internationally responsible for doing so", not that the aiding or assisting
State would be responsible for the conduct of the aided or assisted State. In other words, Article 16 is

27
not a secondary rule of attribution, but a primary rule of conduct: aiding or assisting is, as such and by
itself, an internationally wrongful act and it is to be attributed, as a conduct, to the aiding or assisting
State by application of the usual rules on attribution of conduct. The aiding or assisting State will be
responsible for its own conduct, which is the fact of aiding or assisting in the commission of an
internationally wrongful act by another State -- that latter State being responsible for its own conduct.
Two conditions must be met: the State aids or assists another State "with knowledge of the
circumstance of the internationally wrongful act" and the aiding or assisting State must itself be bound
by the obligation breached by the aided or assisted State.
Examples of such situations can be found when one State authorizes another State to use its territory
in order to launch an illegal military operation against a neighbouring State.

Article 17 Direction and control exercised over the commission of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally wrongful act
by the latter is internationally responsible for that act if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and
(b) The act would be internationally wrongful if committed by that State.

Article 18 Coercion of another State

A State which coerces another State to commit an act is internationally responsible for that act if:
(a) The act would, but for the coercion, be an internationally wrongful act of the coerced State; and
(b) The coercing State does so with knowledge of the circumstances of the act.
In contrast to Article 16, Articles 17 and 18 are secondary rules on attribution of responsibility. In those
cases of "direction and control" (Article 17) or "coercion" (Article 18), the responsibility for the
internationally wrongful act committed by the directed and controlled State, or by the coerced State,
will be attributed to the directing and controlling, or coercing, State: responsibility exists "for that act",
not "for doing so" as in Article 16.
While coercion is probably really exceptional, situations of direction and control might exist in cases
where a State transfers prisoners to another State, the latter being requested to question those
prisoners by using prohibited interrogations techniques.
In those cases, the directed and controlled State, or the coerced State, will also bear responsibility for
its own conduct. So, two States could be responsible for the same internationally wrongful act: the
directed and controlled State, or the coerced State, will be responsible on the basis of the attribution
of conduct, while the directing and controlling State, or coercing State, will be responsible on the basis
of attribution of responsibility under Articles 17 or 18. Article 19 ARSIWA makes that clear:

Article 19 Effect of this chapter

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This chapter is without prejudice to the international responsibility, under other provisions of these
articles, of the State which commits the act in question, or of any other State.

ATTRIBUTION TO INTERNATIONAL ORGANIZATIONS

As I said earlier, this course concentrates on the international responsibility of States.
But when they are endowed with an international legal personality, and are therefore legally distinct
from their member States, international organizations may also incur responsibility for their own
internationally wrongful acts.
The rules on the responsibility of international organizations are based on very similar principles to
those applicable to the responsibility of States and they have been also codified by the International
Law Commission.
Most notably, organizations are responsible for the conduct of their organs or agents acting in that
capacity.
As I recalled in the first video of this week, the ILC draft was endorsed by the General Assembly in a
resolution adopted in 2011 which took note of the Articles on the Responsibility of International
Organizations -- or ARIO.
I am not going to survey all those Articles, but I would just like to address one issue, which touches
both on the responsibility of States and on the responsibility of international organizations.
On many occasions, international organizations cannot perform their functions by themselves because
they do not have enough staff of their own.
Member States will then put some of their organs at the disposal of the organization.
This is notably the case of the many peace-keeping operations conducted by the United Nations and
that we shall study during the last week of the course.
The UN has no standing army of its own.
It must therefore rely on the contributions of member States that are putting some of their own troops
at its disposal.
In such a situation, who is legally responsible for the wrongful conduct of the peace-keepers?
The United Nations or the member State?
Or both?
The issue is far from being theoretical.
Take for instance the dramatic events in Srebrenica, that I mentioned already, in July 1995.
A Dutch battalion of the UN peace-keeping operation was present in the surroundings when up to
8000 Muslim Bosnian men were slaughtered by the Bosnian Serbs.
If there had been a wrongful failure to prevent the genocide at Srebrenica, who is to be blamed?

29
Serbia, as we saw, but what about the United Nations or the Netherlands who were also present?
And the attribution issue under the rules of international responsibility has an immediate bearing on
the possibility to bring a claim because if the UN is said to be responsible, then the 1946 Convention
on UN privileges and immunities prevents to bring any claim against the UN in domestic courts.
While if the Netherlands is the rightful respondent in a civil claim, the Dutch courts may hear the case.
This is very practical.
Another example: who is to bear responsibility, between the UN, France, Germany or Norway for not
having properly cleared unexploded ordnance on a hill in Kosovo where local children went to play and
died because of an explosion?
Is it the UN because KFOR is ultimately under the command of the Security Council, or is it any of the
contributing States to KFOR at the place of the incident?
Or again: if the Nepalese troops present with the UN in Haiti in 2010 are indeed at the origin of a
cholera outbreak, who should be responsible for it?
The UN or Nepal who contributed troops to the UN mission?
It is important to clearly understand that the situation of State organs put at the disposal of an
international organization is different from the situation of State organs that are fully integrated in the
organization.
When State organs are "fully seconded", they are not to be considered as State organs anymore, but
as organs of the organization, and of the organization only.
But this is rarely the case of peace-keeping troops: the soldiers from national contingents are still
members of their national armed forces, and the State continues to have disciplinary powers and
criminal jurisdiction over the members of the national contingents put at the disposal of the UN, but
at the same time those soldiers serve with the UN for a specific mission.
The UN has a commanding responsibility, but the soldiers are not fully seconded to the UN.
Article 7 of the Articles on the Responsibility of International Organizations deals with the issue of State
organs put at the disposal of an international organization.
Under that Article which is said to reflect the current status of international law, two conditions must
cumulatively be met for the wrongful conduct of the State organ to be attributed to the organization.
The State organ must be put at the disposal of the organization, which means that it must help the
organization to fulfil its own functions; and the organization must exercise effective control over that
specific conduct.
In the absence of effective control by the organisation over the conduct of the State organ put at its
disposal, such conduct remains attributed to the State and the conduct is not of the respon sibility of
the organization.

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Contrary to what the European Court of Human Rights decided in May 2007 in the Behrami and
Saramati case versus France, Germany and Norway, the effective control test refers to an actual
operational control and it must be preferred to the "ultimate control" test used by the European Court
in those cases.
If the organization does not exercise effective control over the conduct of the State organ put at its
disposal, there is no need to ask whether the State itself exercised effective control over the conduct
of its organ. And this is because the organ is not fully seconded and is still an organ of the State, its
conduct is presumed to be the conduct of the State under the rules on attribution codified by ARSIWA.
It is only if it is established that the organization exercised in fact effective control over that conduct
that it will be attributed to the organization, rather than to the State.
But the questions is: must this choice be so absolute?
Must it be attribution either to the State by default or to the organization in case of effective control
over the wrongful conduct?
Is it not possible that the effective control is exercised in particular circumstances by the organization
does not totally displace a national chain of command?
And if that is the case, would it not be possible to have a double attribution and two responsibilities?
This is what the Dutch courts have decided in the Srebrenica case, but the matter remains controversial
and still in development.
Furthermore, the factual specificities of each case, the content of the agreements that may exist
between the lending States and the UN, together with the nature of the obligation allegedly breached
that caused the injury, all those elements will have a decisive bearing on the attribution reasoning and
the conclusion of any court.

RESPONSIBILITY AND NEW OBLIGATIONS

THE NEW OBLIGATIONS A RISING FROM INTERNATIONAL

RESPONSIBILITY: CESSATION
Part two of the Articles on the Responsibility of States for Internationally Wrongfu l Acts is entitled
"Content of the international responsibility of a State".

31
It deals with the new obligations that are owed by the State responsible for an internationally wrongful
act and also, as we shall see, with certain obligations imposed on the other States following serious
violations of international law.
As stated in Article 29 of ARSIWA, those new obligations are without prejudice to the duty of the
responsible State to continue to perform the primary obligation breached, if that obligation of course
is still binding on the State.
Article 30 (a) of ARSIWA deals with the secondary obligation of cessation, which is owed by the
responsible State if its wrongful act is continuing.
Cessation is probably the most immediate and important obligation stemming from any ongoing
internationally wrongful act, the obligation that diplomats will want to see achieved as soon as possible
and on which they will concentrate all their efforts.
Cessation of the ongoing wrongful act seems to be pretty close to simply resuming the obligation of
the primary obligation breached.
Cessation of the breach and performance of the breached obligation seem to be two sides of the same
coin.
However, cessation has been identified in practice as a new secondary obligation, distinct from the
duty to perform the primary obligation, and which allows addressing the wrongful act as such.
And for instance, in the advisory opinion about the Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, the International Court of Justice said that Israel was under a
duty to cease the construction of the Wall and also, on the basis of cessation, to dismantle the parts
of the Wall that had already been built.
Dismantling the Wall is owed by Israel as a matter of cessation because the sheer presence of the Wall,
not only its ongoing construction, the sheer presence of the Wall is a continuing violation of the right
of the Palestinian people to self-determination.
Respecting that right would however require much more than dismantling the Wall and if Israel were
to dismantle the Wall it built, this would of course be favourable to the right of the Palestinian people
to self-determination, but it would be far from equating with full respect for that right.
Hence, while Israel must, in general, respect the right of the Palestinian people to self-determination,
it must, more specifically, cease its wrongful act consisting in building and managing the Wall.
Cessation, as a new obligation, stems from the internationally wrongful act and its is owed by the
responsible State when that act is continuing, when it is ongoing.
There is no exception to the duty to cease ongoing violations.
Article 30 (b) of ARSIWA adds that the responsible State is under the obligation "To offer appropria te
assurances and guarantees of non-repetition, if circumstances so require.".

32
That obligation may exist even when the violation has ceased to exist, but it is far from being
automatically owed.
Knowing when the circumstances require that such assurances and guarantees of non-repetition must
be offered is a matter of concrete assessment, the practice being rather scarce in that regard.
Assurances and guarantees of non-repetition are often claimed but rarely awarded because
international courts and tribunals presume that States will act in good faith in the future and will
comply with their obligations.
Let us turn now to the obligation to make reparation.

THE NEW OBLIGATIONS ARISING FROM INTERNATIONAL

RESPONSIBILITY: REPARATION
The other substantial obligation triggered by the internationally wrongful act and owed by the
responsible State is, as Article 31, paragraph 1 of ARSIWA recalls, the "obligation to make full
reparation for the injury caused by the internationally wrongful act".
The duty to make reparation for the injury caused by the violation is probably the most obvious
obligation under any regime of responsibility.
It is also well-established under international law, but it nevertheless deserves a few words of
explanation.
It is indeed important to understand what is an injury, what making reparation means and what are
the forms by which reparation can be achieved.
Let me start with the notion of injury.
Article 31, paragraph 2 of ARSIWA says that the "injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a State."
This is all good and well, but it is important to realize that a damage, an injury, is a legal construct,
despite its apparent materiality.
It is a legal construct for two reasons.
First, intrinsically, the injury must concern an interest of the State which is protected under
international law.
The injury must be about a legally protected interest, a legitimate interest under the law. Under
international law States have basically three legally protected interests: States have a legally protected
interest to see their sovereignty respected; to see their property respected; and, thirdly, to see that
international law is respected in the person of their own nationals.
States suffer an injury themselves when the rights of their own nationals are breached and States may
claim reparation in such a case.

33
Doing so is called "diplomatic protection" and we'll revert to it later in the course.
The injury can be actual or future, in the sense that loss of profits can be claimed, provided of course
that it is duly established, as required under Article 36, paragraph 2 of ARSIWA.
Second, extrinsically, the damage is also a legal construct because it must be linked by a causal link to
the internationally wrongful act.
The damage must be caused by the violation, it must result from it.
Causality under the law is not the same as material causality in natural sciences.
Legal causality results from a human assessment.
Domestic laws operate under different theories of causality and because there are much fewer cases
in international law, the theories developed in international law are less refined than in domestic law,
but they all refer to the idea of a normal, foreseeable course of events, of proximate cause, and
sometimes a difference is made between direct and indirect damage.
But whatever the words used, they all express a judgment of reasonableness in the particular
circumstances of a case.
Assessing causality is no different from judging how far can humans be held accountable for their acts.
Just one example to show you that causality under international law has very little do to with material
causality in nature.
After the Gulf War of 1991, the United Nations Security Council established a Compensation
Commission called the United Nations Compensation Commission in order to allocate war reparations.
Iraq was responsible to make reparation for all the damages resulting from its illegal invasion and
occupation of Kuwait and an important share of its oil revenue was allocated to a special fund for that
purpose.
The UN Compensation Commission decided that the destructions that had been materially caused by
the victorious armies that fought against Iraq to liberate Kuwait were to be compensated by Iraq.
Those destructions were materially caused by the American, the French, the British or other allied
armies, not by the Iraqi army.
Nevertheless, those damages were legally considered to be the result of the illegal invasion for which
Iraq was responsible.
The causal assessment was as follows: had there been no illegal invasion, there would have been no
allied military reaction, and it was foreseeable for Iraq that such reaction would take place.
And of course, because those destructions were legitimate acts of war, if Iraq did not have to pay for
them, no one would bear responsibility and the victims would never be compensated.
After the Second World War, exactly the same causal assessment was made by various conciliation
commissions.
Let us turn now to what making reparation means.

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In a case between Germany and Poland about a Factory at Chorzów, the Permanent Court of
International Justice famously stated that "reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would, in all probability, have
existed if that act had not been committed".
From this dictum, it is important to realize that reparation in not about re-establishing the situation
which had existed just before the violation occurred, reparation is not about the status quo ante.
Rather, reparation is about re-establishing the situation which would, in all probability, have existed
now without the violation.
Because reparation is about wiping out all the consequences of the wrongful act, it must aim at
establishing at the very moment when reparation is made, establishing the situation which would, in
all probability, have existed had the wrongful act not been committed.
How can this be achieved?
What are the forms of reparation?
Under customary international law, and as recalled by Article 34 of ARSIWA, "Full reparation for the
injury caused by the internationally wrongful act shall take the form of restitution, compensation and
satisfaction, either singly or in combination" The three forms of reparation are thus restitution,
compensation and satisfaction.
Depending on the nature and extent of the injury, they may be owed singly or in combination in order
to achieve reparation, that is to establish the situation which in all likelihood would have existed if the
violation had not occurred.
Let us turn to each of those forms now, forms of reparation in the next reading.

THE FORMS OF REPARATION

The obligation to make reparation can take different forms: restitution, compensation or satisfaction.

Article 35 Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution, that
is, to re-establish the situation which existed before the wrongful act was committed, provided and to
the extent that restitution:
(a) Is not materially impossible;
(b) Does not involve a burden out of all proportion to the benefit deriving from restitution instead of
compensation.

35
Restitution aims at re-establishing the situation which existed before the wrongful act: restitution is
about coming back to the status quo ante. But, depending on the nature and extent of the injury, this
might not be enough in order to discharge the obligation to make full reparation since reparation is
not about re-establishing the situation that existed just before the violation, but about establishing the
situation that would, in all probability and at the moment reparation is performed, have existed
without the violation.
For instance, and to take a domestic law example, handing back a stolen painting might be adequate
as a form of restitution, but may not be enough if the painting has been damaged. Furthermore, if the
painting attracted many tourists, reparation may include the loss of profits resulting from the drop in
museum visits, if that painting was a highlight of its collection.
Restitution is the most natural form of reparation and should be preferred, but Article 35 puts limits
to it: restitution is not owed if it is materially impossible (the painting has been destroyed) or if it would
cost the debtor disproportionately more than compensation -- the duty to make full reparation must
not be prejudicial to the responsible State if it takes the form of restitution.

Article 36 Compensation
1. The State responsible for an internationally wrongful act is under an obligation to compensate for
the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits insofar as
it is established.
Despite being owed only "insofar as [the] damage is not made good by restitution", compensation is
the form of reparation which is most frequently used in international practice. It is precisely because
loss of profits is a compensable head of damage that reparation is not simply about re-establishing
the status quo ante.
Compensation is the payment of a sum of money by the responsible State. Assessing the amount of
compensation, i.e. the damage, is often a difficult task and a matter of controversy between the
creditor and the debtor, all the more so that the "contribution to the injury by wilful or negligent action
or omission of the injured State or any person or entity in relation to whom reparation is sought"
(Article 39 ARSIWA) is to be taken into account when assessing what reparation requires.
Loss experts are usually called to assess damages on the basis of available evidence and different
economic theories. And, as the ICJ has admitted when it had to assess the amount of compensation
owed by the DRC for having illegally detained and expelled Mr Diallo, a Guinean businessman who had
lived in Kinshasa for many years, some damages, notably non-material damages, can only be assessed
on the basis of equitable considerations (ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic

Republic of the Congo), 19 June 2012, ICJ Reports, paras. 24, 33, 36).

36
In the DRC v. Uganda case, the ICJ was faced with a huge compensation claim (more than 11bn USD)
but supported by very poor evidence. While recognizing that "there is some uncertainty about the
exact extent of the damage caused", the Court considered that "this does not preclude it from
determining the amount of compensation" and ruled that "on an exceptional basis" it could "award
compensation in the form of a global sum, within the range of possibilities indicated by the evidence
and taking account of equitable considerations." According to the Court, "[s]uch an approach may be
called for where the evidence leaves no doubt that an internationally wrongful act has caused a
substantiated injury, but does not allow precise evaluation of the extent or scale of such injury". As a
result, the Court ordered Uganda to pay a total sum of 325 million USD, in five instalments. Armed
Activities on the Territory of the Congo (DRC v. Uganda), Judgment of 9 February 2022, para. 106.

This being said, it is important to note that:

• the domestic law concept of punitive damages is alien to international law.

• there is no rule of international law about the currency that needs to be used to make the
compensatory payment: if the US dollar is most often used today, it is because it is easily
accessible on the world market and convertible, and also because assessing damages in US
dollars is convenient as most goods are traded in that currency. But any other currency can be
agreed between the parties. In choosing a currency, it is important to keep two elements in
mind: in order not to increase the reparation burden, it must be easily accessible for the
debtor; at the same time, it must be a currency sufficiently stable and convertible in order for
the payment to effectively compensate the damage and not be a nominal amount.
• interest on any principal sum due may be added in order to ensure full compensation (see
Article 38 ARSIWA).

Article 37 Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give satisfaction
for the injury caused by that act insofar as it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal
apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the
responsible State.
Satisfaction is a form of reparation which is specific to international law and which reflects its inter-
State nature: the injury or offence caused to State sovereignty, often called a "non-material injury",
cannot be made good by restitution or compensation, so that a symbolic form of reparation, called

37
"satisfaction", is owed by the responsible State. As its name indicates, satisfaction is performed in
order to "satisfy" the injured State, and this is reflected in the concrete modalities of
satisfaction: acknowledgement of the breach, expression of regret, formal apology or any another
appropriate modality, provided that it is not out of proportion to the injury nor humiliating to the
responsible State.
In many disputes, the injured State is not so much interested in receiving compensation. Rather, the
injured State wants that the violation of its rights be officially established. Acknowledgement of the
breach is often made by the international court or tribunal seized of the dispute, the finding of such
breach being said to "constitute a form of satisfaction which will make good the moral injury
complained of" (see ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) ,
14 Feb. 2002, ICJ Reports, p. 31, para. 75). The official expression of regret by the responsible State, or
even a formal apology by that State, eventually made public through different channels, are other
usual forms of satisfaction. The adequacy of each modality depends on the circumstances of the case.
In the XIXth and early XXth century, satisfaction took sometimes the form of a platoon of the army of
the responsible State saluting the flag of the victim State. This modality is not used anymore and it
could well be considered today as unnecessarily humiliating.
For the responsible State, the obligation to make full reparation may also entail the obligation to repeal
or cancel domestic acts, by means of its own choosing. In the Arrest Warrant case, the International
Court of Justice declared that Belgium violated the rights of the Democratic Republic of Congo by
delivering an arrest warrant against the acting foreign affairs minister of the DRC. As recalled above,
the Court considered this finding to be an adequate form of satisfaction. But the DRC also requested
that Belgium be ordered to cancel the arrest warrant. Belgium rejected this claim, arguing that Mr
Yerodia was not foreign affairs minister anymore, that he had no other official function at the time of
the ICJ proceedings on the merits and that, as a result, any internationally wrongful act had ceased to
exist. Upholding the DRC's argument, the Court disagreed and ordered Belgium to cancel the arrest
warrant by the means of its own choosing. The decision of the Court is entirely based on what making
reparation means, i.e. establishing the situation which would, in all probability, have existed if [the
illegal act] had not been committed (ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the

Congo v. Belgium), 14 Feb. 2002, ICJ Reports, pp. 31-32, para. 76).
That outcome can be compared with the advisory opinion delivered by the ICJ about the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In that opinion, the
Court considered that Israel had, notably, the obligation to stop the construction of the Wall, to
dismantle the parts of the Wall already built and "to repeal or render ineffective forthwith all legislative
and regulatory acts" relating to the construction of the Wall and the establishment of its associated

38
régime (ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ,
advisory opinion, 9 July 2004, ICJ Reports, para. 163, 3 (b), p. 201). All those obligations, including the
obligation affecting domestic Israeli acts, are derived from the obligation to terminate the ongoing
violations for which Israel incurred responsibility. In contrast, in the Arrest Warrant case, and because
Belgium's wrongful act had come to an end, reparation, rather than cessation, was the basis for the
duty to repeal a domestic act.

THE RIGHT OF INDIVIDUALS TO REPARATION

Are individuals entitled, under international law (rather than under domestic law), to claim reparation
for the injuries they suffered as a result of a violation of international obligations that exist to their
benefit (obligations under human rights or humanitarian law treaties)?
Do individuals have a right to reparation under international law?
Traditionally, the answer to that question has been negative: international responsibility was said to
give rise to inter-State relations only and the reparation of injuries suffered by individuals was
considered to be an injury of their national State that could be claimed through diplomatic protection
(see below, Invoking responsibility).
However, international law has most probably evolved in that regard.
The Articles on the Responsibility of States for Internationally Wrongful Act do not decide on the
matter but are explicitly "without prejudice to any right, arising from the international responsibility
of a State, which may accrue directly to any person or entity other than a State (Article 33, paragraph
2, ARISWA).
In its advisory opinion about the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, the ICJ held:
152. Moreover, given that the construction of the wall in the Occupied Palestinian Territory has, inter
alia, entailed the requisition and destruction of homes, businesses and agricultural holdings, the Court
finds further that Israel has the obligation to make reparation for the damage caused to all the natural
or legal persons concerned. The Court would recall that the essential forms of reparation in customary
law were laid down by the Permanent Court of International Justice in the following terms:
"The essential principle contained in the actual notion of an illegal act - a principle which seems to be
established by international practice and in particular by the decisions of arbitral tribunals - is that
reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish 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

39
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." (Factory at Chorzow, Merits,
Judgment, N°13, 1928, PCIJ, Series A, N°17, p. 47)
153. Israel is accordingly under an obligation to return the land, orchards, olive groves and other
immovable property seized from any natural or legal person for purposes of construction of the wall
in the Occupied Palestinian Territory. In the event that such restitution should prove to be materially
impossible, Israel has an obligation to compensate the persons in question for the damage suffered.
The Court considers that Israel also has an obligation to compensate, in accordance with the applicable
rules of international law, all natural or legal persons having suffered any form of material damage as
a result of the wall's construction." (ICJ, Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, advisory opinion, 9 July 2004, ICJ Reports, p. 198, paras. 152-153)
The Court referred to the Chorzów finding and then applied it to the direct benefit of "all natural and
legal persons having suffered any form of material damage".
Furthermore, the UN General Assembly has adopted in 2005 a set of Basic Principles and Guidelines on
the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law (A/RES/60/147) which give flesh to the
concept of the right to redress, both under domestic law and under international law. However, the
resolution is not declaratory of customary international law in all its aspects and essentially incites
States to offer certain redress mechanisms to individuals.

SERIOUS BREACHES OF OBLIGATIONS UNDER JUS

COGENS NORMS
The obligations of cessation and reparation are not differently owed by the responsible State when
the internationally wrongful act is a serious breach of an obligation under a peremptory norm of
general international law.
This may sound strange, but there is actually no reason to require more in terms of cessation or
reparation when the illegality is egregious.
Cessation requires that the ongoing wrongful act be terminated.
And reparation requires full reparation, nothing less but nothing more.
However, would it not make sense that some specific additional obligations arise as a result of serious
violations of international law, in particular serious breaches of obligations that are owed under jus
cogens norms?

40
In 1979, at the suggestion of Roberto Ago, the International Law Commission made the distinction
between "crimes" of international law and "delicts".
The distinction was said to reflect the normative hierarchy between jus cogens norms and the rest of
international law.
The word "crime" was not much appreciated by States and was replaced in the final draft of the ILC by
the concept of "Serious breaches of obligations under peremptory norms of general international law".
According to Article 40, paragraph 2 of ARSIWA, the breach of obligations under jus cogens norms is
said to be serious "if it involves a gross or systematic failure by the responsible State to fulfil the
obligation."
Article 41 of ARSIWA identifies certain "particular consequences" of such serious breaches.
However, those consequences do not constitute any new secondary obligations owed by the
responsible State.
Rather, those consequences are primary obligations owed by all the other States when such serious
breach occurs.
Under Article 41, paragraph 1 "States shall cooperate to bring to an end through lawful means any
serious breach" of a jus cogens obligation.
This is clearly an obligation of conduct, a "best efforts" obligation, not an obligation of result.
While under Article 41, paragraph 2 "No State shall recognize as lawful a situation created by a serious
breach [...], nor render aid or assistance in maintaining that situation."
You are already familiar with those obligations not to recognize and not to render aid or assistance,
and we've already come across those obligations.
Those are prohibitions that are best understood as obligations of result.
It is not surprising that serious breaches of the most fundamental norms of international law that
reflect common core values of the international community of States require certain reactions from
all the other States.
It is through those reactions that the obligations under jus cogens norms survive, despite being
breached.

INVOKING RESPONSIBILITY
RESPONSIBILITY INVOKED BY THE INJURED ST ATE
Part Three of the Articles on the Responsibility of States for Internationally Wrongful Acts addresses
the implementation of such responsibility. And it is divided in two chapters, the first dealing with the

41
invocation of the responsibility of a State, and the second dealing with countermeasures as a way to
implement such responsibility. Part Three is probably the most conceptual part of the codification of
State responsibility.
It is also in that part that some of the most controversial issues are hidden, when it comes to
countermeasures. Well, let us take the Articles as they stand and address in turn, as they do, the
invocation of the responsibility and, later, countermeasures.
As you will see, the two are intimately intertwined and linked.
As far as the invocation of responsibility is concerned, the summa divisio introduced by the Articles is
between what is called, in Article 42, the invocation of responsibility by an "injured State" and what is
called in Article 48 the invocation of responsibility by "any State other than an injured State".
Well this distinction intends to address a rather basic issue: which State has the legitimate interest to
trigger the rules on international responsibility? Under Article 42, the "injured State" is defined as
follows -and let us read that provision carefully and please have it at hand. It is in your Reading
Material. I quote: "A State is entitled as an injured State to invoke the responsibility of another State
if the obligation breached is owed to: (a) That State individually; or (b) A group of States including that
State, or the international community as a whole, and the breach of the obligation: (i) Specially affects
that State; or (ii) Is of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the obligation."
This is a fairly conceptual definition which requires some explanation of course, even if the underlying
issue is fairly straightforward.
And it is to identify which State can lawfully claim to be the victim of an internationally wrongful act,
so as to officially require by all available legal means, to require that the State responsible for the
breach performs in its favour the new secondary obligations of cessation, reparation and eventually
assurances and guarantees of non-repetition. In order to identify the injured or victim State, the central
issue is to determine to whom the obligation breached is owed. Article 42 distinguishes between three
possible cases. The first case is the easiest to understand: it is when the ob ligation is owed to the
injured State individually, which means that the injured State has an individual right to the
performance of the obligation breached. This is notably the case of obligations under under a bilateral
treaty, but this can also be the case under a multilateral treaty or a customary international law rule:
for instance, the obligation under Article 22 of the Vienna Convention on Diplomatic Relations, to
protect the diplomatic mission, is an obligation that each receiving State owes individually to each
foreign State having a mission on its territory. And the same is true for instance for customary
obligations relating to the immunity of States that we will be studied later in the course.
Likewise, international obligations stemming from unilateral undertakings may be owed individually
to States. The second and third cases identified by Article 42 is when the obligation breached is owed

42
to -I quote- "A group of States including that State, or the international community as a whole" The
obligations that are here at stake can be owed to a group of States under a multilateral treaty or to the
international community as a whole under a customary rule of international law.
The obligations here at stake are called "collective obligations" in the sense that the performance of
those obligations is not owed to one State in particular, but to a collectivity, a group of States or the
international community as a whole. When the obligation is owed to the international community as
a whole under a rule of customary international law, the obligation is said to be erga omnes. The
concept of obligation erga omnes was introduced by the International Court of Justice in the Barcelona
Traction case, the Court having famously drew what she called "an essential distinction" between
obligations owed to particular States and those owed towards the international community as a whole.
And this is the case of 1970.
We shall come back to the notion of erga omnes obligations when speaking about States other than
the injured States because, as the Court said in the Barcelona Traction case "all States can be held to
have a legal interest in their protection" because of the importance of the rights involved, the collective
interest.
Examples of those obligations are human rights obligations, or obligations to prevent the pollution of
a specific environment, like the seas. However, the violation of those collective obligations only injures
a particular State if some additional requirements are met. Article 42, (b) (i) refers to the case where
the breach of the collective obligation, which is thus an obligation not individually owed to any specific
State, when that breach "specially affects" a particular State. In such a case, that specially affected
State will be considered as the injured State. The concept of being "specially affected" is taken from
Article 60 of the Vienna Convention on the Law of Treaties which relates to the exceptio non adimpleti
contractus.
It means that the breach of the collective obligation must affect a State in a way which distinguishes it
from the generality of the other States to which the obligation is owed.
For instance, if a State party to the 1984 Convention against Torture engages in torturing the national
of another State party, well that other State party will be considered as specially affected and therefore
injured. Or if an obligation to prevent the pollution of the sea is breached and the pollution reaches
the shores of a specific State, that State will be considered as specially affected and therefore injured.
Under Article 42, (b) (ii), the other possibility for being considered as an injured State when a collective
obligation has been breached, that other possibility is when the breach "(ii) Is of such a character as
radically to change the position of all the other States to which the obligation is owed with respect to
the further performance of the obligation." By this, Article 42 refers to a specific category of collective
obligations called "interdependent" obligations.

43
They are to be found in disarmament treaties, nuclear-free zones treaties, or treaties establishing
specific regimes like the 1959 Antarctic Treaty. In those cases, the performance of each party is
effectively conditioned upon the performance of each of the other parties and actually it requires such
performance by others.
You may remember that those obligations are also mentioned under Article 60 of the Vienna
Convention on the Law of Treaties and their breach may trigger the right to terminate, to suspend or
to withdraw from the treaty. But States may be more interested in keeping the treaty and in having
the legal relationship restored by claiming cessation and reparation. That is why Article 42 considers
that when such interdependent obligation is breached, every other State to which the obligation is
owed will per se be considered as affected, and therefore injured.

HOW TO INVOKE RESPONSIBILITY?

Articles 43-47 ARSIWA refer to some procedural and substantive rules relating to the presentation of
claims by the injured State.

Article 43 Notice of claim by an injured State

1. An injured State which invokes the responsibility of another State shall give notice of its claim to
that State.
2. The injured State may specify in particular:
(a) The conduct that the responsible State should take in order to cease the wrongful act, if it is
continuing;
(b) What form reparation should take in accordance with the provisions of part two.
The customary character of this procedural requirement of notification is doubtful, even if it reflects a
common sense approach: invoking the responsibility should translate concretely into a claim, and the
more explicit the claim is, the better. The injured State will usually use diplomatic channels to give its
notice to the allegedly responsible State. On the basis of such notified claim, exchanges between the
two States will take place. The parties may find an agreed settlement and eventually conclude a treaty
for that purpose. Or they will fail to find such agreed settlement: the notified State may ca tegorically
deny any wrongdoing or, even if it admits being responsible, it will disagree on the amount of
compensation claimed. In those latter cases, a dispute will arise between the two States and its
settlement will have to be pursued through the means that will be studied during Week 7. As recalled
below, the injured State will also be entitled to put pressure on the responsible State by resorting to
countermeasures.

Article 44 Admissibility of claims

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The responsibility of a State may not be invoked if:
(a) The claim is not brought in accordance with any applicable rule relating to the nationality of claims;
(b) The claim is one to which the rule of exhaustion of local remedies applies and any available and
effective local remedy has not been exhausted.
Article 44 refers to two customary requirements relating to the admissibility of claims when the injured
State exercises diplomatic protection. Diplomatic protection has been defined by the Permanent Court
of International Justice as follows:
"It is an elementary principle of international law that a State is entitled to protect its subjects, when
injured by acts contrary to international law committed by another State, from whom they have been
unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects
and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in
reality asserting its own rights -- its right to ensure in the person of its subjects, respects for the rules
of international law" (PCIJ, Mavrommatis Palestine concession (Greece c. United Kingdom), 30 August
1924, series A, n°2, p. 12)
Diplomatic protection is a customary mechanism of international law. It is based on the fiction,
expressed by the PCIJ, according to which the injury to a national is an injury to the State itself.
However, as stated by the International Law Commission in its Commentary to the Draft Articles on
Diplomatic Protection that were later adopted by the UN General Assembly (A/RES/62/67, 6 Dec.
2007), such fiction is "a means to an end, the end being the protection of the rights of an injured
national" (ILC Commentary to Article 1 of the Draft Articles on Diplomatic Protection, YbILC, 2006, vol.
II, Part Two, Article 1, para. 4).
Being the right of the State, diplomatic protection may be exercised at the discretion of the State, the
injured national having no entitlement under international law to see its claim being endorsed by its
government. Furthermore, any renunciation by the national to the diplomatic protection of its State
has no effect on the right of the State to claim. However, the exercise of such right by the State is
conditioned by two requirements recalled under Article 44: diplomatic protection can only be
exercised in favour of the nationals of the State, provided that they have unsuccessfully exhausted
available and effective local remedies in the responsible State. Abundant case-law exists about those
requirements, and they are also dealt with under the ILC Articles on Diplomatic Protection. For the
purpose of international responsibility, those requirements relate to the admissibility of the claim
presented by the injured State: the claim may legitimately be turned down by the notified State if
those conditions are not met, because the injured State was not (or not yet) entitled to invoke the
responsibility of the allegedly responsible State.

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The development of international human rights protection, together with the development of bilateral
investment treaties, have limited the need for individuals or corporations to turn to their national
authorities when they are victims of wrongful acts abroad.

Article 45 Loss of the right to invoke responsibility

The responsibility of a State may not be invoked if:
(a) The injured State has validly waived the claim;
(b) The injured State is to be considered as having, by reason of its conduct, validly acquiesced in the
lapse of the claim.
Article 45 refers to two situations in which the conduct of the injured State has the effect of terminating
the right to invoke the responsibility of a State.
The first situation occurs when the injured State has "validly waived the claim": consent by the injured
State to the wrongful act itself or to its consequences in terms of responsibility has the effect of limiting
(because the waiver can be partial) or terminating the right to invoke responsibility. The waiver must
be validly expressed by the injured State, which requires that it be freely given by a competent
authority to do so. Furthermore, the waiver must be clear and unequivocal: waiving rights cannot be
presumed.
In the absence of a waiver, the injured State may nevertheless "be considered as having, by reason of
its conduct, validly acquiesced in the lapse of the claim". Acquiescence cannot be automatically
deduced from the delay in presenting the claim. But the lapse of time may be an element to take into
account to establish acquiescence, together with all the circumstances, including the serious
disadvantage for the respondent State of any late claim.

Article 46 Plurality of injured States

Where several States are injured by the same internationally wrongful act, each injured State may
separately invoke the responsibility of the State which has committed the internationally wrongful act.
It is not unusual that the same internationally wrongful act injures several States, within the meaning
of article 42. For instance, one State may invade the territory of two of its neighbours. In such a case,
each injured State is entitled to invoke the responsibility of the wrongful invader. International law
does not require that they present a joint claim to the responsible State: the injured States may act
separately, each assessing for itself when and what to claim. The injured States are however not
prohibited from presenting a joint claim.

Article 47 Plurality of responsible States

1. Where several States are responsible for the same internationally wrongful act, the responsibility of
each State may be invoked in relation to that act.

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2. Paragraph 1:
(a) Does not permit any injured State to recover, by way of compensation, more than the damage it
has suffered;
(b) Is without prejudice to any right of recourse against the other responsible States.
Situations in which a plurality of States are responsible for the same internationally wrongful act are
not frequent, but they may occur, notably in the situations envisaged under Article 17 (direction and
control) and Article 18 (coercion). Also, several States may be responsible for the same internationally
wrongful act when a common organ (for instance a joint river commission which does not enjoy
separate legal personality) acts on their behalf. When several States bear responsibility for the same
internationally wrongful act, the injured State(s) may invoke the responsibility of each of the
responsible State, claiming full reparation to anyone of them. Of course, as stated in paragraph 2,
double recovery is prohibited, while the responsible State making full reparation should be able to act
against the other responsible States to claim their respective share of compensation, on the basis of
causal apportionment.
There is some controversy about situations in which several States breach the same international
obligation at the same time. Those are situations of co-perpetration -- e.g. two States wage a war of
aggression together. Are those situations to be considered as situations in which States are responsible
for "the same" internationally wrongful act or as situations in which States are each responsible for
similar, but nevertheless distinct, internationally wrongful acts? I submit the latter view should b e
preferred, so that each State will bear responsibility for its own act and will owe reparation for the
injury resulting from its own act. The basic principle of international law remains indeed that each
State is responsible for its own conduct and that situations of joint responsibility remain exceptional.
For more developments on reparation in situations of shared responsibility, see here.

RESPONSIBILITY INVOKED BY A STATE OTHER THAN THE

INJURED STATE
As we have seen, the injured State is entitled to invoke the responsibility of a State if the conditions
set out in Article 42 are met.
The injured State can then claim from the responsible State cessation of the ongoing internationally
wrongful act, reparation for the injury resulting from the breach, and, if circumstances so require,
assurances and guarantees of non-repetition.

47
Furthermore, as we shall see later in this lesson, the injured State will be entitled to take
countermeasures against the responsible State in order to put pressure on that State and obtain from
it that it meets its new secondary obligations arising from international responsibility.
However, the responsibility of a State may also be invoked by any State other than the injured State
when a collective interest is at stake. This is envisaged under Article 48 of the Articles on State
Responsibility.
Again, the key element is to determine to whom the obligation breached is owed.
Article 48 envisages two different possibilities. Each time, the invocation of responsibility by non-
injured States is possible because a collective interest is at stake.
Non-injured State will be entitled to come to the rescue of that collective interest by invoking the
responsibility of the State concerned.
The two possibilities envisaged under Article 48, paragraph 1 are as follows:
(a) The obligation breached is owed to a group of States including that State, and is established for the
protection of a collective interest of that group; or
(b) The obligation breached is owed to the international community as a whole.
The obligations envisaged under Article 48, paragraph 1, (a), must be owed to a group of States and
must, moreover, be established for the protection of a collective interest of that group as I said.
Those obligations are usually established under multilateral treaties, but they may also exist under
customary international law.
Those obligations are called obligations erga omnes partes.
Example of such obligation can be found in the case between Belgium and Senegal about the obligation
to prosecute or extradite Hissène Habré, the former head of State of Chad present in Senegal.
In that case, the ICJ found that such obligation under the 1984 Convention against Torture was an erga
omnes partes obligation.
The obligations envisaged under Article 48, paragraph 1, (b) must be owed to the international
community as a whole and are of a customary nature. They are called obligations erga omnes.
And as recalled in the video relating to the invocation of responsibility by the injured State, the concept
of obligation erga omnes was introduced by the ICJ in the Barcelona Traction case.
In that case, the Court said that "all States can be held to have a legal interest in their protection"
because again of the importance of the rights involved.
The Court gave examples of such obligations and it referred to "the outlawing of acts of aggression,
and of genocide, as also […] the principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination.
As we have see in Week 2, the Court has since then added the right of self-determination of peoples
to this list of erga omnes obligations.

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You may remember the East Timor case or the Wall opinion of the Court.
Erga omnes obligation are thus obligations that are owed by all States to every other State, to the
international community as a whole.
When such erga omnes partes or erga omnes obligations are breached, any of the States to which the
obligation is owed is entitled to invoke the responsibility of the State for the breach of such obligation,
because again of the collective interest it protects.
However, and as stated under Article 48, paragraph 2, the States other than the injured State are
entitled to invoke the responsibility for specific purposes.
Indeed, those other States may claim from the responsible State:
(a) Cessation of the internationally wrongful act, and [eventually] assurances and guarantees of non -
repetition […]; and
(b) Performance of the obligation of reparation […], in the interest of the injured State or of the
beneficiaries of the obligation breached.
So, the invocation of responsibility by the other States than the injured State serves a double purpose
which is never selfish nor purely in the interest of the non-injured State invoking such responsibility:
the return to legality through cessation of the ongoing wrongful act, and eventually assurances and
guarantees of non-repetition.
This is in the interest of the group of States or of the international community as a whole and the
reparation of the injury resulting from the wrongful act, but this is in the interest of the injured State,
or of the beneficiaries of the obligation breached, which could be individuals. It is not in the interest
of the other State than the injured State.
Lastly, Article 48, paragraph 3, limits the possibility to invoke the responsibility of a State by non -
injured States by declaring that the requirements that we have seen before under Article 43 (notice of
the claim), Article 44 (admissibility) and Article 45 (loss of the right to invoke responsibility), that those
requirements also apply to the invocation of responsibility by non-injured States.

OBLIGATIONS ERGA OMNES (PARTES)

While the notions of jus cogens (see Week 4, Validity of Treaties) and erga omnes are close, they
should not be confused with each other. In both cases, essential collective interests of the international
community as a whole are at stake. However, jus cogens relates to the character of norms, which are
said to be peremptory, while erga omnes relates to the effect of obligations in light of the collectivity
to which they are owed.
While every jus cogens norm contains erga omnes obligations, the opposite is not true: some erga
omnes obligations may be owned under norms that are not peremptory and that can therefore be
derogated from by mutual agreement. Furthermore, some erga omnes obligations are not owed under

49
peremptory customary norms, but under multilateral treaties, and are therefore obligations erga
omnes partes.
The concept of obligations erga omnes has been clarified by the Institute of International Law (Institut
de droit international -- see Week 3, Where to find custom?) in a Resolution adopted in 2005, in
Krakow.
Please read the resolution carefully (it is also to be found in the Reading Material):

Obligations erga omnes in international law - Krakow session (2005)

Fifth commission. Rapporteur : M. Giorgio Gaja
The Institute of International Law,
Considering that under international law, certain obligations bind all subjects of international law for
the purposes of maintaining the fundamental values of the international community;
Considering that a wide consensus exists to the effect that the prohibition of acts of aggression, the
prohibition of genocide, obligations concerning the protection of basic human rights, obligations
relating to self-determination and obligations relating to the environment of common spaces are
examples of obligations reflecting those fundamental values;
Desiring to take a first step in clarifying certain aspects of inter-State relations created by these
obligations, especially the consequences of their breach and the related remedies, while
acknowledging that some of these obligations also exist towards subjects of international law other
than States;
Adopts the following Resolution:
Article 1
For the purposes of the present articles, an obligation erga omnes is:
(a) an obligation under general international law that a State owes in any given case to the
international community, in view of its common values and its concern for compliance, so that a breach
of that obligation enables all States to take action; or
(b) an obligation under a multilateral treaty that a State party to the treaty owes in any given case to
all the other States parties to the same treaty, in view of their common values and concern for
compliance, so that a breach of that obligation enables all these States to take action.
Article 2
When a State commits a breach of an obligation erga omnes, all the States to which the obligation is
owed are entitled, even if they are not specially affected by the breach, to claim from the responsible
State in particular:
(a) cessation of the internationally wrongful act ;

50
(b) performance of the obligation of reparation in the interest of the State, entity or individual which
is specially affected by the breach. Restitution should be effected unless materially impossible.
Article 3
In the event of there being a jurisdictional link between a State alleged to have committed a breach of
an obligation erga omnes and a State to which the obligation is owed, the latter State has standing to
bring a claim to the International Court of Justice or other international judicial institution in relation
to a dispute concerning compliance with that obligation.
Article 4
The International Court of Justice or other international judicial institution should give a State to which
an obligation erga omnes is owed the possibility to participate in proceedings pending before the Court
or that institution and relating to that obligation. Specific rules should govern this participation.
Article 5
Should a widely acknowledged grave breach of an erga omnes obligation occur, all the States to which
the obligation is owed:
(a) shall endeavour to bring the breach to an end through lawful means in accordance with the Charter
of the United Nations;
(b) shall not recognize as lawful a situation created by the breach;
(c) are entitled to take non-forcible counter-measures under conditions analogous to those applying
to a State specially affected by the breach.
Article 6
The preceding articles are without prejudice:
(a) to the rights and remedies pertaining to a State which is specially affected by the breach of an
obligation erga omnes;
(b) to the application of special rules to the breach of certain obligations erga omnes;
(c) to the rights that a State party to a multilateral treaty has, under the law of treaties, as a
consequence of a breach concerning the same treaty.

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Article 3 of the Krakow Resolution can be illustrated by the dispute between Belgium and Senegal
about the obligation to prosecute or extradite Hissène Habré, the former head of State of Chad. In that
case, the ICJ held:
“68. As stated in its Preamble, the object and purpose of the [1984] Convention [against torture] is 'to
make more effective the struggle against torture . . . throughout the world'. The States parties to the
Convention have a common interest to ensure, in view of their shared values, that acts of torture are
prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State party
to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for
prosecution are triggered by the presence of the alleged offender in its territory, regardless of the
nationality of the offender or the victims, or of the place where the alleged offences occurred. All the
other States parties have a common interest in compliance with these obligations by the State in whose
territory the alleged offender is present. That common interest implies that the obligations in question
are owed by any State party to all the other States parties to the Convention. All the States parties
'have a legal interest' in the protection of the rights involved (Barcelona Traction, Light and Power
Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33).
These obligations may be defined as 'obligations erga omnes partes' in the sense that each State party
has an interest in compliance with them in any given case. In this respect, the relevant provisions of
the Convention against Torture are similar to those of the Convention on the Prevention and
Punishment of the Crime of Genocide, with regard to which the Court observed that

52
'In such a convention the contracting States do not have any interests of their own ; they merely have,
one and all, a common interest, namely, the accomplishment of those high purposes which are the
raison d’être of the Convention.' (Reservations to the Convention on the Prevention and Punishment of
the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)
69. The common interest in compliance with the relevant obligations under the Convention against
Torture implies the entitlement of each State party to the Convention to make a claim concerning the
cessation of an alleged breach by another State party. If a special interest were required for that
purpose, in many cases no State would be in the position to make such a claim. It follows that any State
party to the Convention may invoke the responsibility of another State party with a view to
ascertaining the alleged failure to comply with its obligations erga omnes partes, such as those under
Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, and to bring that failure to an
end.
70. For these reasons, the Court concludes that Belgium, as a State party to the Convention against
Torture, has standing to invoke the responsibility of Senegal for the alleged breaches of its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention in the present proceedings.
Therefore, the claims of Belgium based on these provisions are admissible. As a consequence, there is
no need for the Court to pronounce on whether Belgium also has a special interest with respect to
Senegal’s compliance with the relevant provisions of the Convention in the case of Mr. Habré”.
(ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012,
ICJ Reports, pp. 449-450, paras. 68-70)
It should be noted that the right to invoke the responsibility of a State is simply the right to present a
valid claim to the responsible State, but it does not amount to, nor equate with, the right to bring
proceedings at the International Court of Justice or before any other international court or tribunal. As
will be seen in Week 7, the jurisdiction of international courts and tribunals is always based on the
consent of the disputing States. Lacking such consent, there is no jurisdiction to entertain a claim, even
if it is about an alleged breach of an obligation erga omnes. However, if such consent exists (as in
the Belgium v. Senegal case, on the basis of the compromissory clause to be found in the 1984
Convention against Torture), every State to whom the obligation erga omnes (partes) is owed is
entitled to invoke the responsibility and to bring proceedings against the allegedly responsible State.
The difference between consent to jurisdiction and the right to invoke the responsibility for breach of
an obligation erga omnes was made clear by the International Court of Justice in the East Timor case:
29.[…] In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it
evolved from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has been recognized by the United
Nations Charter and in the jurisprudence of the Court (see Legal Consequences for States of the

53
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I. C. J. Reports 1971, pp. 31- 32, paras. 52-53; Western Sahara,
Advisory Opinion, I. C. J. Reports 1975, pp. 31-33, paras. 54-59); it is one of the essential principles of
contemporary international law. However, the Court considers that the erga omnes character of a
norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a
party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga
omnes.
(ICJ, East Timor (Portugal v. Australia), 30 June 1995, ICJ Report, p. 102, para. 29)

THE ROHINGYA GENOCIDE CASE

In 2019, The Gambia instituted proceedings against the Republic of the Union of Myanmar on the basis
of Article IX of the 1948 Genocide Convention, claiming that the "clearance operations" conducted in
2016 and 2017 by the Burmese army constituted genocide against the Rohingya, a Muslim minority
group.
The right of The Gambia to invoke the responsibility of Myanmar for its alleged violations of the
Genocide Convention entirely rests on the erga omnes partes character of the obligations contained
in the Convention.
The case is currently pending before the Court. However, recognizing that there existed an imminent
risk of further harm to the Rohingya group, the Court ordered on 23 January 2020 certain provisional
measures that Myanmar must comply with pending the resolution of the case.
At paragraph 41 of the Order, the Court "recall[ed] that in its Advisory Opinion on Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, it observed that
“[i]n such a convention the contracting States do not have any interests of their own; they merely have,
one and all, a common interest, namely, the accomplishment of those high purposes which are the
raison d’être of the convention. Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the maintenance of a perfect contractual
balance between rights and duties. The high ideals which inspired the Convention provide, by virtue
of the common will of the parties, the foundation and measure of all its provisions.” (I.C.J. Reports
1951, p. 23.)
In view of their shared values, all the States parties to the Genocide Convention have a common
interest to ensure that acts of genocide are prevented and that, if they occur, their authors do not
enjoy impunity. That common interest implies that the obligations in question are owed by any State

54
party to all the other States parties to the Convention. In its Judgment in the case concerning Questions
relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), the Court observed that the
relevant provisions in the Convention against Torture were “similar” to those in the Genocide
Convention. The Court held that these provisions generated “obligations [which] may be defined as
‘obligations erga omnes partes’ in the sense that each State party has an interest in compliance with
them in any given case” (Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68). It follows that any State
party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility
of another State party with a view to ascertaining the alleged failure to comply with its obligations erga
omnes partes, and to bring that failure to an end."
(ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The
Gambia v. Myanmar), Order of 23 January 2020).
The principle was later confirmed by the Court in its judgment on preliminary objections: Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Judgment of 22 July 2022, pars. 106-108 (on preliminary objections, see Week 7):
“107. All the States parties to the Genocide Convention thus have a common interest to ensure
the prevention, suppression and punishment of genocide, by committing themselves to
fulfilling the obligations contained in the Convention. As the Court has affirmed, such a
common interest implies that the obligations in question are owed by any State party to all the
other States parties to the relevant convention; they are obligations erga omnes partes, in the
sense that each State party has an interest in compliance with them in any given case.
…
108. The common interest in compliance with the relevant obligations under the Genocide
Convention entails that any State party, without distinction, is entitled to invoke the
responsibility of another State party for an alleged breach of its obligations erga omnes partes.
Responsibility for an alleged breach of obligations erga omnes partes under the Genocide
Convention may be invoked through the institution of proceedings before the Court,
regardless of whether a special interest can be demonstrated. If a special interest were
required for that purpose, in many situations no State would be in a position to make a claim.
For these reasons, Myanmar’s purported distinction between the entitlement to invoke
responsibility under the Genocide Convention and standing to pursue a claim for this purpose
before the Court has no basis in law.”

In the same Judgment, the Court confirmed that the rule concerning the nationality of claims (see
above Art. 44 ARSIWA) was not applicable in the context of the Genocide Convention or in any other
cases where its application would be contrary to the object and purpose of the treaty (para. 104).

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COUNTERMEASURES
THE NOTION OF COUNTERMEASURES
International law is a decentralized legal order.
Every State is entitled to judge by itself if an internationally wrongful act has been committed, and
eventually to invoke, either as an injured State or as a non-injured State, the responsibility of another
State for that breach.
But, as we have seen in the previous reading, there is a difference between invoking the responsibility
of a State and being able to enforce that responsibility before an international court or an international
tribunal.
Absent State consent, there is no compulsory adjudication, so that the injured State may be facing a
situation where the responsible State will just flatly reject its claim.
If that is the case, the rules on State responsibility, and international law in general, will risk being
completely ineffective.
Of course, the injured State may always press its claim and its demands, present them again to the
responsible State in the hope of finding an agreed settlement.
The injured State may also put pressure on the responsible State by taking all sorts of unfriendly
measures that are intrinsically legal, measures that are called "retorsions", like postponing a State visit,
limiting, suspending or even terminating the diplomatic ties between the two countries, or preventing
foreign officials to enter its territory, or suspending a treaty in conformity with the law of treaties, etc.
But, additionally, the injured State will also be entitled to press its claims against the responsible State
by resorting to measures that are, as such, in breach of its international obligations but for which the
injured State will however not incur international responsibility because those measures, although
illegal, are taken in response to a first violation.
For instance, the injured State suspends the application of a trade treaty, or the benefits of any other
international obligation it owes to the responsible State, like the benefits resulting from an air
transport agreement, while such suspension cannot be justified under the treaty itself or the law of
treaties in general.
Deliberately breaching the law in response to a first violation is not much different from taking justice
in one's own hands.
Measures of self-redress are usually forbidden in municipal law.
By contrast, such enforcement measures are not prohibited in international law.
In fact, reciprocity, quid pro quo, is at the heart of international law and reprisals have been
traditionally tolerated in international law.

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As we shall see in the last part of this course, armed reprisals are now, as a matter of principle,
prohibited, but non-forcible reprisals are still very much part of international law today.
Today, those non-forcible reprisals are called "countermeasures".
The second Chapter of Part Three of the Articles on the Responsibility of States for Internationally
Wrongful Act is about "Countermeasures".
We have already come across the notion of countermeasures as a circumstance precluding
wrongfulness under Article 22 of ARSIWA.
But it is time now to make it more explicit and to try to understand what are countermeasures, when
and why it is possible to resort to countermeasures, who may resort to countermeasures and how
countermeasures must be exercised.
All those questions are dealt with under Article 49 to 54 of the Articles on State Responsibility.
Those articles reflect to a large extent customary international law, even if some of the procedural
requirements set out in those Articles probably still need to be confirmed by State practice.
And because the ILC has codified countermeasures, and that such codification represents acceptable
international law, it is very likely that State practice will actually conform with them in the future.
Let us first recall what is a countermeasure.
It is an internationally wrongful act taken in response to a previous internationally wrongful act.
As stated earlier, countermeasures are intrinsically illegal, and are therefore distinct from retorsion
measures which are unfriendly, but intrinsically legal -- and therefore unregulated by international law.
Because the countermeasure is the second breach in response of a previous breach, its wrongfulness
will be precluded.
The author of the countermeasure must be the injured State within the meaning of Article 42.
And the target of such countermeasure must be the responsible State, and the responsible State only.
This is of course common sense and it has been recalled by the ICJ in the Gabčíkovo-Nagymaros case:
"In the first place [a countermeasure] must be taken in response to a previous international wrongful
act of another State and must be directed against that State."
Furthermore, as recalled by Article 49, paragraph 1, countermeasures must only be taken "in order to
induce [the responsible] State to comply with its obligations under part two" of the Articles, that is its
new substantive obligations of cessation, reparation and, if the circumstances so require, assurances
and guarantees of non-repetition.
In other words, countermeasures are enforcement measures, measures whose only purpose is to
obtain from the responsible State that it complies with the new obligations that were triggered a s a
result of its wrongful act.
Countermeasures are not punitive measures; they are law-enforcement measures typical of a
decentralised legal order.

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This explains that countermeasures are, by nature, temporary.
They must be terminated as soon as the responsible State has complied with its secondary obligations.
This is made clear by Article 53.
Because of their temporary nature, countermeasures are, according to paragraphs 2 and 3 of Article
49: "limited to the non-performance for the time being of international obligations of the State taking
the measures towards the responsible State" and they "shall, as far as possible, be taken in such a way
as to permit the resumption of performance of the obligations in question".
This being said, some obligations may not be temporarily suspended by the injured State by means of
countermeasures.
Those obligations may not be affected by countermeasures and the injured State is required to
continue to respect these obligations in its relations with the responsible State.
Those obligations are listed under Article 50 and we'll turn to them just after this video.
Let me end this video by recalling the two customary principles limiting the exercise of
countermeasures.
Countermeasures can only be resorted to if they are necessary to protect the rights of the injured
State.
And they must be resorted to in a proportionate way.
Let us turn also to those requirements in the next reading.

LIMITS TO THE EXERCISE OF COUNTERMEASURES

As stated earlier, the performance of certain obligations may not be impaired by countermeasures.
Those obligations are specified under Article 50 ARSIWA:

Article 50 Obligations not affected by countermeasures

1. Countermeasures shall not affect:
(a) The obligation to refrain from the threat or use of force as embodied in the Charter of the United
Nations;
(b) Obligations for the protection of fundamental human rights;
(c) Obligations of a humanitarian character prohibiting reprisals;
(d) Other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations:
(a) Under any dispute settlement procedure applicable between it and the responsible State;
(b) To respect the inviolability of diplomatic or consular agents, premises, archives and documents.

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The obligations mentioned under paragraph 1 of Article 50 are considered to be out of reach of
countermeasures for substantive reasons and because of the collective values they protect. Because
they are out of reach of the reciprocity which is inherent in countermeasures, those obligations are
sometimes referred to as "integral" obligations.
The prohibition of forcible countermeasures, i.e. armed reprisals, under paragraph 1 (a), reflects a
requirement spelled out in the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United Nations
(Resolution 2625 (XXV) of 1970: “States have a duty to refrain from acts of reprisal involving the use of
force”, see Reading Material) and it is consistent with the prevailing cases. In the Nicaragua v. United
States case, the ICJ notably held that:
"[…] While an armed attack would give rise to an entitlement to collective self-defence, a use of force
of a lesser degree of gravity cannot […] produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified proportionate counter-measures on
the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa
Rica. They could not justify counter-measures taken by a third State, the United States, and particularly
could not justify intervention involving the use of force." (ICJ, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), 27 June 1986, ICJ Reports, para. 127, p.
127).
The obligations under paragraph 2 are protected because of the function they fulfil, notably in helping
to resolve the dispute resulting from the internationally wrongful act and the countermeasure.
The dispute settlement obligations that must be respected are those that are available between the
responsible State and the State taking countermeasures for the settlement of their dispute arising from
the internationally wrongful act and the countermeasure.
The diplomatic and consular rules that remain unaffected are those that protect the inviolability of
agents, premises, archives and documents (including the diplomatic bag). Other obligations owed
under diplomatic or consular rules, notably those relating to privileges, may be breached by way of
countermeasures, provided however that the inviolability of agents, premises, archives and
documents remains unaffected. If the inviolability of diplomats or of the mission is breached by the
receiving State, the sending State may not reciprocate by breaching such inviolability in return; or
again: if the mission violates diplomatic law because it is engaged in spying activities against the
receiving State, the latter may not breach its inviolability by way of countermeasures. As the ICJ has
stated: "diplomatic law itself provides the necessary means of defence against, and sanction for, illicit
activities by members of diplomatic or consular missions" (ICJ, United States Diplomatic and Consular
Staff in Tehran (United States of America v. Iran), 24 May 1980, ICJ Reports, p. 38, para. 83), such means

59
of defence being to declare a diplomat persona non grata, to terminate or suspend diplomatic
relations, to recall ambassadors, etc. According to the Court:
"86. The rules of diplomatic law […] constitute a self-contained regime which, on the one hand, lays
down the receiving State’s obligations regarding the facilities, privileges and immunities to be accorded
to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and
specifies the means at the disposal of the receiving State to counter any such abuse. These means are,
by their nature, entirely efficacious, for unless the sending State recalls the member of the mission
objected to forthwith, the prospect of the almost immediate loss of his privileges and immunities,
because of the withdrawal by the receiving State of his recognition as a member of the mission, will in
practice compel that person, in his own interest, to depart at once. But the principle of the inviolability
of the persons of diplomatic agents and the premises of diplomatic missions is one of the very
foundations of this long-established regime, to the evolution of which the traditions of Islam made a
substantial contribution. The fundamental character of the principle of inviolability is, moreover,
strongly underlined by the provisions of Articles 44 and 45 of the Convention of 1961 [on diplomatic
relations] (cf. also Articles 26 and 27 of the Convention of 1963 [on consular relations]). Even in the
case of armed conflict or in the case of a breach in diplomatic relations those provisions require that
both the inviolability of the members of a diplomatic mission and of the premises, property and
archives of the mission must be respected by the receiving State. Naturally, the observance of this
principle does not mean - and this the Applicant Government [i.e. the United States] expressly
acknowledges - that a diplomatic agent caught in the act of committing an assault or other offence
may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the
commission of the particular crime. But such eventualities bear no relation at all to what occurred in
the present case." (Ibid., p. 40, para. 86).
In addition to the obligations listed under Article 50, some specific regimes may prohibit
countermeasures (or resorting to them) within the framework of such regime. This is notably the case
within the European Union. As early as 1964, the European Court of Justice rejected the views
presented by Belgium and Luxembourg according to which "international law allows a party, injured
by the failure of another party to perform its obligations, to withhold performance of its own." In
response to such argument based on international law and which could have referred either
to exceptio inadiplenti contractus or to countermeasures (failing a material breach of the treaty), the
ECJ held:
"[…] this relationship between the obligations of parties cannot be recognized under Community law.
In fact the Treaty is not limited to creating reciprocal obligations between the different natural and
legal persons to whom it is applicable, but establishes a new legal order which governs the powers,
rights and obligations of the said persons, as well as the necessary procedures for taking cognizance of

60
and penalizing any breach of it. Therefore, except where otherwise expressly provided, the basic
concept of the Treaty requires that the Member States shall not take the law into their own hands.
Therefore the fact that the Council failed to carry out its obligations cannot relieve the defendants
from carrying out theirs." (ECJ, Commission v. Luxembourg and Belgium, Joined cases 90 and 91/63, 13
Nov. 1964, ECJ Reports 1964, p. 631)
In exercising countermeasures, two customary requirements must be met:

• first, resorting to countermeasures must be necessary in order to protect the injured State's
rights;
• second, countermeasures must be exercised in a proportionate way.

Compliance with those conditions must be assessed on a case by case basis, but the ILC has tried to
provide some guidance in that regard.
The necessity requirement has essentially been translated in the ARSIWA in procedural obligations
under Article 52:

Article 52 Conditions relating to resort to countermeasures

1. Before taking countermeasures, an injured State shall:
(a) Call upon the responsible State, in accordance with article 43, to fulfil its obligations under part
two;
(b) Notify the responsible State of any decision to take countermeasures and offer to negotiate with
that State.
2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are
necessary to preserve its rights.
3. Countermeasures may not be taken, and if already taken must be suspended without undue delay
if:
(a) The internationally wrongful act has ceased; and
(b) The dispute is pending before a court or tribunal which has the authority to make decisions binding
on the parties.
4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
procedures in good faith.
The notification requirement under paragraph 1 of Article 52 has notably been put forward by the ICJ
in the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (ICJ Reports, para. 84, p. 56)
The proportionality requirement is stated under Article 51:

Article 51 Proportionality

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Countermeasures must be commensurate with the injury suffered, taking into account the gravity of
the internationally wrongful act and the rights in question.
In the Gabčíkovo-Nagymaros case, the ICJ expressed the proportionality requirement as follows:
"the effects of a countermeasure must be commensurate with the injury suffered, taking account of
the rights in question." (Ibid., para. 85, p. 56)
Drawing from that case, the International Law Commission wrote in its ARSIWA Commentary:
"Considering the need to ensure that the adoption of countermeasures does not lead to inequitable
results, 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. Article 51 relates proportionality
primarily to the injury suffered but “taking into account” two further criteria: the gravity of the
internationally wrongful act, and the rights in question. The reference to “the rights in question” 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. Furthermore, the position of other States which may be affected may
also be taken into consideration." (Report of the Commission to the General Assembly on the work of
its 53rd session, YbILC, 2001, Vol. II, Part 2, p. 135).

COUNTERMEASURES BY O THER STATES THAN THE

INJURED STATE?
So far, we have discussed countermeasures that are taken by the injured State against the responsible
State.
But, as you know, other States than the injured State may also have a right to invoke responsibility,
under the conditions set out in Article 48.
Those other States have a rightful interest that the responsible State respects its international
obligations when those obligations protect collective interests.
This is most notably the case when the internationally wrongful act is continuing and that it consists in
the serious breach an erga omnes obligation that exists under a peremptory norm of general
international law.
When a serious breach of an obligation under a jus cogens norm is ongoing, the injured State is of
course entitled to protect its rights by resorting to countermeasures.
But in such a situation, because all the other States are already entitled to invoke the responsibility of
the author of the violation and claim cessation, should they not also be entitled to resort to
countermeasures, so as to add pressure on the responsible State and to bring that serious breach
sooner to an end?

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Of course, as a matter of principle and as we shall see during the last week of this course, such
situations could justify that sanctions be taken by the UN Security Council.
But what if the Security Council is vetoed?
If a genocide or ethnic cleansing is ongoing, that the Security Council is blocked, must the rest of the
world pay lip service to the prohibition of genocide, or human rights, complain about it and then do
nothing, stand by and watch?
On the face of it, it does make sense to allow non-injured States to put pressure with non-forcible
countermeasures on the State responsible for the most serious breaches.
As a matter of fact, when codifying countermeasures, the ILC did not fail to take note of some practice
in that direction.
For instance, in 1978, the United States claimed that the Idi Amin Dada was committing a genocide
against its own people and imposed an embargo against Uganda.
In 1981, when martial law was imposed in Poland, some Western States took countermeasures against
Poland for the alleged violations of human rights.
In 1982, when Argentina took military control of the Falkland Islands, or Malvinas, some non-injured
States showed solidarity with the United Kingdom and also took trade sanctions against Argentina.
In 1990, some countries took measures against South-Africa that went beyond the sanctions imposed
by the Security Council.
The same year, when Iraq invaded Kuwait, the US and the European Union members froze Iraqi assets
and adopted trade embargoes before the Security Council took extensive sanctions.
A few years later, in 1998, European States also took countermeasures, in the form of the suspension
of aviation and trade agreements, against the Federal Republic of Yugoslavia.
Those measures were additional to UN sanctions and have been justified as a reaction to gross human
rights violations, or on the basis of a fundamental change of circumstances.
And closer to us, the US and the European Union took a series of measures against Russia for its alleged
involvement in the crisis in Ukraine.
All those cases allow to put in perspective the seemingly good idea of what can be called "universal
countermeasures."
I say seemingly good idea because things are of course a little bit more complicated than just coming
to the rescue of fundamental norms through other breaches.
Indeed, how can one be certain that a serious breach of a jus cogens obligation has indeed occurred
and is continuing?
And how can one be sure that the countermeasure in response to such a breach, when taken by a non-
injured State, is genuinely pursuing the cessation of such breach and does not have any other political
objective?

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Furthermore, and as all those examples show: why is it that "universal countermeasures" are nearly
only used by non-injured Western States?
If international law were to tolerate countermeasures by non-injured States, would it not amount to
giving even more power to those States that are already powerful?
And if common values are indeed at stake and must be rescued, is it acceptable that s ome States --
and besides, always the same Western States -- is it acceptable to offer to those States the legal
entitlement that they take the common interest in their own hands and pretend to protect it by
resorting to measures that are, as such, in breach of international law?
In 1996, on the basis of the practice I mentioned earlier and because of the desirability of seeing basic
norms protected, the International Law Commission adopted a draft article according to which all
States would have been entitled to take countermeasures in case of an ongoing "crime" of a State, that
is in case of a serious breach of an obligation under a jus cogens norm.
The UN member States were called to comment on this proposal.
But the reactions were extremely divisive, and the Western powers fairly isolated in their stance in
favour of universal countermeasures.
As a result, the ILC had to tune down its draft and find a compromise.
It did so by inserting a "without prejudice clause".
Today, Article 54 of the Articles on State Responsibility is entitled "Measures -- not countermeasures -
- Measures taken by States other than an injured State".
Non-injured States that are entitled to invoke the responsibility of another State under Article 48 are
said to have also "the right [...] to take lawful measures against that State".
What does that mean?
If the measures are retorsion measures, that is measures that are intrinsically lawful, well Article 54 is
just a tautology.
Non-injured State have of course the right to take measures that are not in breach of any of their
international obligations.
Commenting on Article 54, the International Law Commission writes that because "the current state
of international law on countermeasures taken in the general or collective interest is uncertain", Article
54 is to be viewed as "a saving clause which reserves the position and leaves the resolution of the
matter to the further development of international law."
The ILC adds: "The article speaks of 'lawful measures' rather than 'countermeasures' so as not to
prejudice any position concerning measures taken by States other than the injured State in response
to breaches of obligations for the protection of the collective interest or those owed to th e
international community as a whole."

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Update Note

The video refers to the taking by the US and the European Union of "a series of measures against Russia
for its alleged involvement in the crisis in Ukraine". Since the video was recorded, the Russian
Federation annexed Crimea, a move largely held as unlawful by most States of the international
community and condemned by the United Nations General Assembly (A/RES/68/262).

On 24 Feburary 2022, the Russian Federation launched a full-scale invasion on the territory of Ukraine.
By an overwhelming majority, the UN General Assembly condemned the "aggression by the Russian
Federation against Ukraine in violation of Article 2 (4) of the Charter" (A/ES-11). The US, the EU, the
UK and many other countries have imposed sanctions on Russia. Some of those sanctions cons titute
countermeasures and therefore add to the State practice of "universal countermeasures".

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