State Responsibility

Question 1

Article 1, ILC Articles on State Responsibility 2001 (“ARSIWA”)

Answer 1

Every internationally wrongful act of a State entails the international responsibility
of that State.

Question 2

How are the ILC Articles formulated?

Answer 2

The ILC Articles are formulated as “principles” or “secondary rules”. Wrongful conduct itself is defined by a relevant primary rule (ie the prohibition on the use of force, breach of a treaty provision, etc). Separation of primary and secondary rules is vital to the project:
“[I]t is one thing to define a rule and the content of the obligation it imposes, and another to determine whether that obligation has been violated and what should be the consequences of the violation”: Rapporteur Ago, (1970)

Question 3

ARISWA: General vs Special rules

Answer 3

The Articles provide the general rules dealing with the attribution and consequences of wrongful conduct at international law. They may be displaced by specific rules (lex specialis): Art 55 and 56. Consider for instance the “self-contained” provisions of the WTO or ECHR treaty regimes.

Question 4

ARISWA: CIL?

Answer 4

The ILC project was one of codification and progressive development: Not every article is necessarily CIL (although ICJ has yet to consider an ILC Article and not find it to be CIL).

Question 5

General treaties on SR?

Answer 5

There is no general treaty on State responsibility (as there is for instance on the law of treaties, cf Vienna Convention on the Law of Treaties).

Question 6

Status of ILC Articles: UNGAR 56/83 (2001)

Answer 6

takes notes of Articles and “commends them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action”.

Question 7

Organisation of ARISWA

Answer 7

Breach of an international obligation: Articles 1-3, 12-15, 28-39.
Attribution: Articles 4-11
Invocation by injured State (i.e. standing): Articles 42, 47.
Invocation by a State other than an injured State (standing/actio popularis): Articles 48, 54
Circumstances precluding responsibility (i.e. defences): Articles 20-27.
Content of State responsibility (the legal relations stemming from a breach): Articles 28-30 (duties of continued performance, cessation and non-repetition); and duty to make reparation Articles 31-39 (restitution, monetary compensation or satisfaction).
Countermeasures (self-help enforcement): Articles 49, 54.

Question 8

Art 2 ARISWA

Answer 8

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.
The elements of State responsibility are thus: conduct, breach and attribution .

Question 9

Conduct

Answer 9

May be an act or omission.
Characterisation of the act is governed by International Law; legal status of the act under internal law is not relevant (Art 3 ARSIWA)

Question 10

. Breach

Answer 10

The relevant breach is of an international law obligation “regardless of its origin or character” (Art 12): ie treaty, custom, jus cogens, unilateral undertaking.
Matters of internal law are not relevant and provide no excuse or defence (Art 3).
Obligation must be in force for the State at the relevant time (Art. 13)
Breach may be continuing (Art. 14) or consist of a composite act (Art. 15)

Question 11

Attribution

Answer 11

Articles 4-11 ARISWA

Question 12

Whose acts are State Acts? Under what conditions?

Answer 12

PCIJ in German Settlers in Poland Case PCIJ Ser. B, no. 6 [1923], “States can only act by and through their agents and representatives”.

Question 13

Relationship between State Responsibility and State Immunity?

Answer 13

Tempting to conclude that the focus on State acts must mean there is some relationship with State immunity. While this will generally be true, there are notable exceptions. E.g., a State may be responsible for the unauthorised or ultra vires acts of officials which might not be considered State acts covered by immunity ratione materiae. Equally, conduct may be attributable to a State (which would normally attract immunity ratione materiae), but States have expressly (Genocide Convention, art. IV) or implicitly (R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No. 3) [2000] 1 AC 147) waived immunity for such acts.

Question 14

Article 4: Ariswa

Answer 14

Conduct of organs of State
Baasically: Any State organ, and organ includes any person/entity which has that status in accordance w internal law of the State
But the final test is one of IL. so ational law is relevant, not decisive

Question 15

Art 7 AriSWa

Answer 15

Excess of authority or contravention of instructions

If the organ is acting in their capacity, doesnt matter if exceeds authority/contravenes instrucitons

Question 16

Mallen Case, Mexico v USA

Answer 16

(1) In the course of a private dispute an off-duty official assaults a foreigner;
(2) Days later, the official returns with gun and badge to arrest him (in abuse of his authority). Mexico is responsible for (2), but not (1).
Act (2) – even though characterized as an act of personal revenge by the tribunal – was carried out under the colour of the official’s ostensible authority and using means placed at his disposal by his official position. Act (1) did not involve the (mis)use of State authority or means.

Question 17

The Rainbow Warrior (1986)

re Art 7

Answer 17

Greenpeace ship moored in Auckland Harbour, preparing to protest against French nuclear testing in the South Pacific.
Explosive devices attached to the hull of the Rainbow Warrior detonated, ship sank within minutes, killing a photographer on board.
Two French citizens arrested. France initially denied link to the French government, and offered France’s full cooperation in New Zealand’s investigations.
France subsequently admitted they were (‘DGSE’) agents, and that DGSE agents had been sent to New Zealand to gather intelligence on Greenpeace, but continued to deny responsibility for the explosions on the basis that neither the French government nor the DGSE had ordered the attack.
Were the DGSE agents acting ultra vires or in their private capacity? What difference does it make in terms of France’s responsibility for the bombing?
Under mounting media pressure in France, the French Government finally admitted responsibility for the bombing.
NZ and France could not agree on the reparations (what compensation should be paid, imprisonment of the agents etc)
The UN Secretary General was called upon to resolve the dispute.

Question 18

Military and Paramilitary Activities in and against Nicaragua
re Responsibility for conduct of persons/entities that are not State organs

Answer 18

US financed the contras
Provided uniforms, ammunition, and communications and military equipment; Supplied the contras with intelligence on the movement of Nicaraguan troops (¶106);
and trained the contras (¶s101-2).
A number of the contras’ paramilitary operations were decided and planned in close collaboration with US advisers, and the US selected targets for the contras’ armed activities.
The Court distinguishes between two separate bases of attribution in the assigned paragraphs, one bearing on de facto organ status, and one setting out a de facto agent test. What are these two standards of attribution and what are their consequences vis a vis how much of the contras’ activities the US might have been responsible for had the Court found attributability?

Question 19

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
re Responsibility for conduct of NSAs

Answer 19

Effective control (Nicaragua) vs Overall control (Tadic)
Test of control should be variable, dependent on context
Effective control is fine for Nicaragua, where US and contras shared same objective, but those could be achieved without war crimes/CAHs
But where the shared objective i the commission of INT crimes, to require control over the NSA, and the specific operations in the context of whcih INT crimes were committed is too high a threshold

Question 20

Tehran Hostages Case (1980)

re Responsibility for conduct of NSAs

Answer 20

States can adopt the actions of NSAs post facto
Ayatollah Khomeini encouraged activity against he US
Iran owed obligation under Vienna convention and GIL to protect embassy and diplomats
Failed to take “appropriate steps” to protect, or to respond in face of urgent and repeated requests for help (in contrast w similar situation w Iraq), despite previous assurances
refused to order the young people to evacuate the embassy, and forbade council and officials for meeting w Carter’s representatives sent to obtain release of hostages and evacuation of the embassy
Seal of official gvt approval set on situation by decree by Ayatollah. Ordered policy maintiang the occuaption and the detention of hostages. Transformed the legal nature of the situation

Question 21

Article 20 ARISWA

Answer 21

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.
Eg, the sending of State A’s troops into State B’s territory would normally be an act of aggression: Declaration on Friendly Relations. However, there is no wrong done when that presence has been requested (the position adopted by the French in regard to Libya and Mali).
Consent may also be provided after the fact (although there is an obvious risk it will not be).

Question 22

Lowe in (1999) 10(2) European Journal of Intl Law

Answer 22

Points out that consent is really ‘exculpation’ rather than an excuse/defence. That is, if consent is provided from the outset (consent ab initio) this will render the act intrinsically lawful. If consent is given after the fact (consent post facto) then there has been a waiver of rights.

Question 23

Article 23 ARSIWA

Answer 23

Force majeure
Requires, cumulatively:
An irresistible force or an unforeseen event (ie “neither foreseen nor of an easily foreseeable kind”),
Beyond the control of the State (ie “a constraint which the State was unable to avoid or oppose by its own means”),
Making performance of the obligation materially impossible (note there must be a causal link between the two and that the standard is “impossible” not “difficult”).

Question 24

Standard of proof required for force majeure

Answer 24

High
Rainbow Warrior
UNSG ruled that the French agents should be transferred to French military base (on the French Polynesian island of Hao) and prohibited from leaving for three years, except with mutual consent of both NZ and France.
Before the end of the term, Mafart was in need of medical care, and the French Government removed him to a hospital in Paris without the consent of NZ (although efforts were indeed made to obtain this consent). France plead that it was medically necessary to remove agent to mainland France in violation of its agreement with NZ (relying on force majeur).
The Arbitral Tribunal stressed that the test is “absolute and material impossibility” not that performance of obligation became more burdensome.

Question 25

Requirements of force majeur may be satisfied by natural or human causes
E.g.?

Answer 25

Unauthorised over-flights by State aircraft caused by force of weather or emergency (ILC Commentary 2001)
Where an obligation cannot be carried out due to “loss of control over a portion of the State’s territory as a result of an insurrection or devastation of an area by military operations carried out by a third State”. For example, destruction by a third government of an object required to carry out obligation: Lighthouses Arbitration (France/Greece post WWI).

Question 26

Article 24 ARSIWA

Answer 26

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.

Question 27

Article 25 ARSIWA

Answer 27

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.

Question 28

The Danube Dam case

re Necessity

Answer 28

Necessity is recognized by CIL for precluding the wrongfulness of an act not in conformity with an international obligation.
It is an exceptional basis for precluding wrongfulness. The State concerned is not the sole judge of whether the conditions for necessity have been met.
Court accepts that environmental interests are “essential interests” of a State. BUT - need also to establish that the peril was grave and imminent and the absence of other means to respond to it.
An inevitable peril or one that is long term is not imminent. And it must be more than simply possible – uncertainty of outcomes do not lend themselves to finding a state of necessity. Need a certain amount of certainty – even if the peril is very grave – and environmental assessments concluded that full environmental impact could not be evaluated.
In addition, environmental impacts had not escaped the attention of the parties in 1977 – and H would not have been permitted to rely upon the state of necessity in order to justify its failure to comply with its treaty obligations, as it had helped, by act or omission, to bring it about.

Question 29

ICJ Advisory Opinion Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (2004)
re necessity

Answer 29

o “the Court is not convinced that the construction of the wall along the route chosen was the only means to safeguard the interests of Israel against the peril which it has invoked as justification for that construction.” The Court does not pronounce itself on whether the security concerns invoked by Israel satisfy the “safeguard an essential interest against a grave and imminent peril.”

Question 30

Counter Measures

Answer 30

Articles 49-52

Question 31

Conditions set out in ARISWA for adoption of legitimate CMs

Answer 31

1. Adopted by an injured State in response to the prior breach of an international obligation by the wrongdoing (and target) State (at own risk)
2. Proportionate to the injury suffered by the injured State as a result of the target State’s internationally wrongful act;
3. Intended to re-establish the primary legal relationship between the injured (and measure-adopting) State and the wrongdoing (and target) State.
4. Countermeasures must therefore be terminated once the primary legal relationship has been re-established and secondary obligations have been met.
5. Finally, countermeasures “shall not affect: (a) the obligation to refrain from the threat or use of force in international relations embodied in the UN Charter; (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.”

Question 32

CMs “At your own risk”

Answer 32

An injured State “which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for an unlawful act in the event of an incorrect assessment.”

Question 33

Necessity and proportionality

Answer 33

The Danube Dam Case
Hungary suspends works on Nagymaros Dam, so Slovakia threatened to start building the second dam unilaterally upstream at Cunovo and divert the Danube. Unilateral diversion of the Danube would be internationally wrongful, but S pleads wrongfulness is precluded bc H breached and Variant C was a CM
The Court held that:
(i) CMs must be taken in response to a previously wrongful act. Unilateral action was in response to H’s suspension and abandonment of the works;
(ii) The injured State must have called for the discontinuation of the wrongful act and Slovakia did indeed call for renewed performance;
(iii) the effects of the counter measure must be commensurate with the injury suffered. By assuming control of an international watercourse depriving Hungary of its right to an equitable and reasonable share of the natural resources of the Danube, with the effects of this diversion on the environment, Slovakia failed to respect the proportionality requirement and was therefore an unlawful countermeasure.

Question 34

Article 28 ARSIWA

Answer 34

Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part.

Question 35

(i) Continued duty of performance, irrespective of internal law

Answer 35

Art29: Continued duty of performance
Art32: Irrelevance of internal law
ILC Commentary: “As a result of the internationally wrongful act, a new set of legal relations is established between the responsible State and the State or States to whom the international obligation is owed. But this does not mean that the pre-existing legal relation established by the primary obligation disappears.”
The international obligation is not rendered void by the breach, even if – in some cases - it may be voidable at the injured State’s election (Art 60, VCLT).
Indeed, even under the law of treaties, continuing material breaches by both parties may not affect the underlying obligation of continued performance (pacta sunt servanda): Gabčíkovo-Nagymaros Project (ICJ Reports), para 114.

Question 36

Cessation of wrongful act

Answer 36

Article 30 ARSIWA
Cessation and non-repetition
The State responsible for the internationally wrongful act is under an obligation:
a. to cease that act, if it is continuing;
b. to offer appropriate assurances and guarantees of non-repetition, if circumstances so require.
(NB: act includes omissions)

Question 37

Assurances of non-repetition

Answer 37

Assurances oof non-repetition are exceptional, considered an affront to state sovereignty making them grovel like a child
Usually just for state-sponsored terrorism
E.g. KAL 858, North Korean Secret Service agents pretending to be Japanese Husband and Wife sabotage a south korean plane
North Korea said that South Korea did it themselves to get sympathy before winter Olympics???
South Korea demanded NK apologise for bombing, punish those responsible, make assurances of non-repetition, this is the kind of situation where that’s appropriate

Question 38

Requirements for requirement of cessation to arise

Answer 38

“the wrongful act [must have] a continuing character and … the violated rule [must] still [be] in force at the time”: Rainbow Warrior Arbitration (1990)
If primary obligation has ceased to exist, often due to a lapse in time, there is no more primary obligation
So State cannot avoid breaching that obligation, because it’s not there

Question 39

ILC on cessation

Answer 39

“The result of cessation may be indistinguishable from restitution, for example in cases involving the freeing of hostages or the return of objects or premises seized.”

Question 40

Obligation to make reparation by restitution, compensation and/or satisfaction

Answer 40

Article 31
Reparation
1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

Clearly a duty at custom.

Question 41

Chorzow Factory Case (Jurisdiction)

Answer 41

“It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation is therefore the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”

Question 42

Chorzow Factory Case (Merits)

Answer 42

“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, so far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”

Question 43

Reparation can take three forms, singly or in combination (Art 34 ARSIWA):

Answer 43

Restitution (to the status quo ante),
Compensation (where restitution is not possible) and
Satisfaction (in addition or where restitution/compensation is not possible or appropriate).

Question 44

Restitution

Answer 44

Restitution is the restoration of the status quo ante, but is limited by what is materially possible and by a criterion of proportionality (Art. 35). Restitution is appropriate where, under Art 35 it:

(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation

Question 45

Problem of restitution in the Rainbow Warrior Arbitration (1990):

Answer 45

Not always clear how to distinguish it from cessation of a wrongful act. ILC Commentary at p.89: “According to New Zealand, France was obliged to return them to and to detain … [the agents] on the island for the balance of the three years; that obligation had not expired since time spent off the island was not to be counted for that purpose. The tribunal disagreed. In its view, the obligation was for a fixed term which had expired, and there was no question of cessation.”
Restoration was not possible when the original obligation no longer existed: no point in returning agents if France not obliged to keep them there.

Question 46

Compensation

Answer 46

Compensation refers to financially assessable damage, not made good by restitution (Art. 36). Money goes to the State, even where the damage is to individuals.
Gabčíkovo-Nagymaros Project : “It is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.”

Question 47

Satisfaction

Answer 47

Satisfaction relates more to redressing moral than physical or financial damage: Art. 37(2). May take the form of an acknowledgement (or finding) of breach, an expression of regret, formal apology. May include assurances or guarantees of non-repetition, or the prosecution of wrongdoers.

Question 48

General rules of invocation of State Responsibility

Answer 48

Article 42: Invocation of responsibility by an injured State
Article 46: Plurality of injured States
Article 45: Loss of the right to invoke responsibility
Just look in your statute book, dickhead.

Question 49

Conditions for invocation of SR

Answer 49

The actual availability of remedies, even at the instance of the injured State itself, may depend on two further pre-conditions:
the admissibility of a claim to redress may depend on a nationality link (nationality of claims rule) [‘Diplomatic protection’] and/or
the exhaustion of local remedies.

Question 50

Nationality of claims rule

Answer 50

Laid down as “an elementary principle of international law” by the PCIJ in the Mavrommatis Palestine Concessions Case
Gives effect to a theory of indirect injury. The State may make an international responsibility claim for injuries done not only directly to it, but to its nationals.
Rule applies where S takes up the claim, not where claiming a direct injury to itself
No obligaiton to take up claims of naitons (Barcelona traction)

Question 51

How do you test who is a national?

Answer 51

First, by reference to national law: see Art 4, ILC Draft articles on Diplomatic Protection 2006

Question 52

Dual Nationality cases

Answer 52

If a person holds two valid nationalities – there are limitations on the extent to which one State of nationality can bring a claim against another State of nationality.
A test of “dominant and effective nationality” will resolve cases where both the claimant and respondent State argue the person in question is their national (Art. 7, ILC Articles on Diplomatic Protection (2006)).

Question 53

The Salem Case; Eritrea Ethiopia Claims Commission, Partial Award on Claim 24 (2005)

Answer 53

It is not open to a third State to challenge the standing of the State espousing a diplomatic claim on the basis that some other State (not party to the dispute) has a stronger claim to be the individual’s State of nationality, or even on the basis that there is “no genuine link” between the individual and the State claiming them as a national

Question 54

Exhaustion of local remedies

Answer 54

Found in Art. 14, ILC Articles on Diplomatic Protection (2006).
Designed rro preserve possibity that there may be no actionable INT wrong where the damage is reasonably capable of being redressed by processes w/in national system (gives wrong-doing S a chance to put things right)

Question 55

Scope of exhaustion of local remedies rule

Answer 55

The exact scope remains controversial, as does whether it rule of substance or merely procedure (admissibility). See the ILC Commentary to Art. 44 ARSIWA, paragraphs (4) and (5); note also that some treaty regimes have their own “local remedies” rule (e.g. ECHR Article 35(1)).
Exhaustion is not where local remedies would be ineffective (Art. 15, ILC Articles on Diplomatic Protection (2006)).

Question 56

South West Africa

Answer 56

South West African mandate agreement, LoN entrusted adminstration over former German colony to South Africa, SA agreed to adopt certain conduct, in particular ‘to promote to the utmost the material and moral well-being and social progress of the inhabitants’
The Court refused to find that this created an actio popularis for each and all LoN members to enforce against South Africa.
But this was not because such a right could have no material or tangible object, but because the rights and interests were not sufficiently clearly vested in the parties who wish to claim.
So left it open as possible.

Question 57

Barcelona Traction

re erga omnes

Answer 57

Essential distinction between obligations of S towards INT community as a whole and those arising vis-a-vis another State.
By their very nature, the former are the concern of all States.
In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes
Such obligations derive, eg, from outlawing acts of aggression, and genocide, and form the principles and rules re basic human rights such as protection from slavery and racial discrimination
Some of the rights come from CIL, others conferred by international instruments of a universal or quasi-universal character

Question 58

East Timor (Portugal v Australia) (1995)
re erga omnes

Answer 58

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 South West Africa)
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.

Question 59

Art 48

Answer 59

Invocation of responsibility by a State other than an injured State
Applies where part of a group of States that duties are owed to, or where the obligaiton owed is to IC as a whole
Can grant cessaction of wrongful act, or perfromace of obligation/reparation
Requirements under Arts43-5 apply here too

Question 60

Distinciton between EO and JC

Answer 60

Art 40: Application of this chapter

1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Art 41: Particular consequences of a serious breach of an obligation

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this part and to such further consequences that a breach to which this chapter applies may entail under international law.

Question 61

Legal Consequences of the Construciton of a Wall in the Occupied Palestine Territory
re dist

Answer 61

Israel’s breach of Palestine’s right to Self-Determination was found to be an erga omnes breach (not surprising as East Timor already happened)
Was a stupid istake though, because this was an advisory opinion case, and the court wasn’t asked about standing.
Conflating jus cogens and erga omnes.
All JCs are EO, but not all EOs are JCs (e.g. environmental protection) so they’re not interchangeable

Question 62

Collective Counter-Measures?

Answer 62

Can CMs taken in the collective interest also have wrongfulness excluded?
Art22 suggests no (CMs are okay in accoradnce w Chapter 2 which is restricted to injured States)
This was very deliberate choice made in context of long debate about CCMs. Most scholars were in favour, States have to be able to come together to act against States violating JC/EO obligations. Surely peaceful CCMs are better than war?
Debate shifted significantly in late 90’s, get Art 49, and then Art 54

Question 63

Art. 54 ILC Articles on State Responsibility + Commentary

Answer 63

This chapter does not prejudice right of any state to invoke responsibility of other state
Or to take lawful measures against that state to ensure cessation of the breach
Some take Art 54 to be silent on the CCM issue
But word lawful excludes CMs, which are inherently unlawful
Only says they are free to take retorsive conduct
So ILC says only that states are free to do what they are allowed to do
Therefore useless and tells us nothing

Question 64

Why is ILC reluctant to consider CCMs?

Answer 64

State practice in area of CCMs is limited to particular group of states (US and Europe)
Different to Crawford’s approach. When writing his report for drafting ILC articles, said CCMs should be allowed for same reasons as scholars had been
Flipside of that idea given by Weil. They sound like a good thing. But Weil says that “any state, in the name of hifgher values determined by itself, could appoint itself the avenger of the international community, Thus, under the banner of law chaos and violence would blah blah
Koskenniemi: Once door to create collective reaction is opened, can no longer be closed to prevent the hegemony from walking through it, not as a policmen but as a bully
Very balanced concerns