Circumstances Precluding Wrongfulness, and Reparation

Article 27 states the consequences of invoking one: it is without prejudice to compliance with the obligation once the circumstance no longer exists, and without prejudice to the question of compensation for material loss caused by the act.

The case that decided necessity

Facts. Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, page 7, judgment of 25 September 1997. Hungary and Czechoslovakia concluded a treaty on 16 September 1977 for a system of locks on the Danube. In 1989 Hungary suspended and then abandoned the works for which the treaty made it responsible, citing ecological dangers. Czechoslovakia prepared an alternative, Variant C, from November 1991 and put it into operation in October 1992 by unilaterally damming and diverting the Danube on its own territory. Hungary notified termination of the Treaty on 19 May 1992. Czechoslovakia was later dissolved and Slovakia claimed to succeed.

Held. Hungary was not entitled to suspend and abandon the works in 1989; Czechoslovakia was entitled to prepare Variant C in November 1991 but not to put it into operation in October 1992; Hungary's notification did not terminate the Treaty, which remained in force; and Slovakia became a party as successor. On necessity, the Court held that a state of necessity is a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, that it can be accepted only on an exceptional basis, and that the conditions in the Commission's draft reflect customary law: an essential interest of the State threatened by a grave and imminent peril, the act being the only means of safeguarding it, and the act not seriously impairing an essential interest of the State towards which the obligation exists. On the facts Hungary could not rely on it. The Court added that even where a state of necessity is found, it is not a ground for the termination of a treaty; it may only exonerate a State from responsibility for failing to implement one.

On countermeasures, the Court held that the diversion of the Danube was not a lawful countermeasure because it was not proportionate, and that a duty to mitigate damage might found a calculation of damages but could not justify an otherwise wrongful act. It also rejected impossibility of performance under article 61 of the Vienna Convention and fundamental change of circumstances, and held that newly developed norms of environmental law were relevant to the Treaty's implementation.

Why it matters. It is the leading modern authority on necessity, on the proportionality of countermeasures, and on the crucial distinction between an excuse for non-performance and a ground for termination. That last distinction is the one students miss: necessity got Hungary nowhere on the treaty, and could at most have excused its conduct.

The content of responsibility: articles 28 to 39

Article 28 introduces the legal consequences. Article 29: the consequences do not affect the continued duty of performance of the obligation breached. Article 30: the responsible State is under an obligation to cease the act if it is continuing, and to offer appropriate assurances and guarantees of non-repetition if circumstances so require.

Article 31: reparation. The responsible State is under an obligation to make full reparation for the injury caused, injury including any damage, whether material or moral. Article 32: irrelevance of internal law, the counterpart of article 3. Article 33 defines the scope of the obligations in that Part.

Article 34: forms of reparation. Full reparation shall take the form of restitution, compensation and satisfaction, either singly or in combination.

Article 35: restitution. To re-establish the situation which existed before the wrongful act was committed, provided it is not materially impossible and does not involve a burden out of all proportion to the benefit.

Article 36: compensation. For the damage caused so far as it is not made good by restitution, covering any financially assessable damage including loss of profits so far as established.

Article 37: satisfaction. For injury not made good by restitution or compensation. It may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality, and it must not be out of proportion to the injury or take a form humiliating to the responsible State. The Corfu Channel case, worked in [State Responsibility], is the classic instance: the Court's declaration that the British sweep violated Albanian sovereignty was itself held to constitute appropriate satisfaction.

Article 38: interest. Payable when necessary to ensure full reparation. Article 39: contribution to the injury. In determining reparation, account shall be taken of 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.

The standard behind all of it is Chorzow, worked in [General Principles of Law Recognised by Civilised Nations]: 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. Articles 31 and 34 to 37 are that sentence turned into a scheme.

Serious breaches: articles 40 and 41

The Articles create a special regime for the gravest wrongs, and it is the answer to the criticism that the scheme is otherwise purely bilateral.

Article 40 applies the chapter to a serious breach by a State of an obligation arising under a peremptory norm of general international law, a breach being serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.

Article 41 gives the consequences: States shall cooperate to bring the breach to an end through lawful means; no State shall recognise as lawful a situation created by such a breach, nor render aid or assistance in maintaining it. That duty of non-recognition is the one already met in [Recognition of States].

Who may invoke: articles 42 to 54

Article 42: the injured State. A State is entitled as an injured State to invoke responsibility if the obligation breached is owed to it individually, or to a group or the international community and the breach specially affects it or is of such a character as radically to change the position of all the other States to which the obligation is owed.

Articles 43 to 47 deal with notice of claim, admissibility, loss of the right to invoke by valid waiver or acquiescence, and pluralities of injured and of responsible States. Article 44 is where nationality of claims and exhaustion of local remedies sit, and they are worked in [Treatment of Aliens and Diplomatic Protection].

Article 48: invocation by a State other than an injured State. This is the article that answers Barcelona Traction's erga omnes passage. A State other than an injured State may invoke responsibility if the obligation breached is owed to a group of States including it and is established for the protection of a collective interest of the group, or if it is owed to the international community as a whole. Such a State may claim cessation, assurances of non-repetition, and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries.

Countermeasures, articles 49 to 54. These are the self-help this system has instead of a police force, and they are tightly bounded.

Article 49: object and limits. An injured State may take countermeasures only to induce compliance, and they must be limited to the non-performance for the time being of obligations towards the responsible State, and must as far as possible be taken in a way that permits the resumption of those obligations.

Article 50: obligations not affected. Countermeasures shall not affect the obligation to refrain from the threat or use of force, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals, or other obligations under peremptory norms, and the State must continue to perform dispute settlement obligations and respect the inviolability of diplomatic and consular agents, premises, archives and documents.

Article 51: proportionality. Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the wrongful act and the rights in question. This is the article Gabcikovo applied when it held the diversion of the Danube disproportionate.

Article 52: conditions. Before taking countermeasures the injured State must call on the responsible State to perform and notify it of the decision, offering to negotiate, though urgent countermeasures may be taken to preserve rights.

Article 53: termination. Countermeasures shall be terminated as soon as the responsible State has complied.

Article 54 preserves the position of States other than an injured State taking lawful measures.

Articles 55 to 59 are the saving clauses: 55 lex specialis, so the Articles yield to a special regime; 56 questions not regulated remain governed by customary law; 57 responsibility of international organisations is untouched; 58 individual responsibility is untouched; 59 the Charter prevails.

A worked example

State P dams a river, cutting the flow into State Q and destroying its fisheries. State Q, without notice, seizes State P's merchant ships in its ports and expels State P's ambassador's family.

Is State P responsible? Yes, if damming in breach of a treaty or of the customary rule on shared watercourses is attributable and a breach, which is [State Responsibility].

Can State P plead necessity? Only on the Gabcikovo conditions in article 25: an essential interest, a grave and imminent peril, the act being the only means, and no serious impairment of State Q's essential interest. Water shortage may be an essential interest; the requirement that damming be the only means is where such pleas usually fail; and destroying State Q's fisheries is a serious impairment. And necessity, if made out, would excuse the conduct and would not release State P from the treaty.

Are State Q's seizures lawful countermeasures? Test them against articles 49 to 53. Object: they must aim to induce compliance, not to punish, and seizing ships permanently would not permit resumption, contrary to article 49. Notice: article 52 requires State Q to call on State P to perform and to notify its decision, and State Q gave none. Proportionality: article 51 requires them to be commensurate with the injury, and Gabcikovo held a disproportionate response unlawful.

Expelling the ambassador's family? Article 50 forbids countermeasures affecting the inviolability of diplomatic agents, premises, archives and documents. That measure is unlawful whatever the provocation, and it is the clearest single error in the problem.

What must State P do if it is responsible and has no excuse? Article 30: cease, and give assurances of non-repetition if circumstances require. Article 31: full reparation. Article 35: restitution first, so removing the dam if not materially impossible and not out of all proportion. Article 36: compensation for financially assessable damage including lost profits so far as established. Article 37: satisfaction for what money cannot cover. Article 38: interest where needed. Article 39: reduced to the extent State Q contributed by its own wilful or negligent conduct.

Suppose the damming amounted to a gross and systematic breach of a peremptory norm. Then articles 40 and 41 add a further layer: all States must cooperate to end it by lawful means, none may recognise the resulting situation as lawful, and none may aid or assist in maintaining it. And under article 48 a State other than State Q could invoke responsibility and claim cessation.

Distinctions table

What it does NOT mean

A circumstance precluding wrongfulness is not a termination. Article 27 says compliance resumes once the circumstance ends, and Gabcikovo says necessity is not a ground for terminating a treaty.

Countermeasures are not reprisals in the old sense. Article 50 bars force, human rights obligations, humanitarian obligations prohibiting reprisals, peremptory norms and diplomatic inviolability.

Satisfaction is not punishment. Article 37 requires it not to be out of proportion or humiliating to the responsible State.

Article 48 is not a general right of action. It permits a non-injured State to claim cessation, assurances and reparation in the interest of the injured State or the beneficiaries, not compensation for itself.

Limits and criticism

Necessity is stated so narrowly that it almost never succeeds, which is deliberate, since a wide necessity would let any State escape any obligation by asserting an emergency. The cost is that a State facing a genuine emergency has very little room.

Countermeasures favour the strong. The State able to hurt the other is the State able to induce compliance, and the conditions in articles 49 to 53 regulate the form of self-help without changing who can use it.

The consequences of a serious breach are thin. Article 41 requires cooperation to end the breach through lawful means and imposes duties of non-recognition and non-assistance, and it creates no enforcement machinery. Against a determined State it produces a legal position and not a remedy.

Quick revision

Six circumstances precluding wrongfulness: 20 consent, 21 self-defence, 22 countermeasures, 23 force majeure, 24 distress, 25 necessity. 26: none of them excuses a breach of a peremptory norm. 27: performance resumes when the circumstance ends, and compensation for material loss is unaffected.

Gabcikovo-Nagymaros, ICJ Reports 1997, page 7: necessity is customary, exceptional, and requires an essential interest, a grave and imminent peril, the act being the only means, and no serious impairment of the other State's essential interest; and it is not a ground for terminating a treaty. Variant C was not a lawful countermeasure because it was not proportionate.

Content: 29 continued duty of performance; 30 cessation and assurances of non-repetition; 31 full reparation for material and moral injury; 32 irrelevance of internal law; 33 scope; 34 restitution, compensation and satisfaction; 35 restitution unless materially impossible or out of all proportion; 36 compensation including lost profits; 37 satisfaction, not disproportionate or humiliating; 38 interest; 39 contribution to the injury.

Chorzow standard: reparation must wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed had it not been committed.

Serious breaches: 40 gross or systematic failure under a peremptory norm; 41 cooperate to end it, do not recognise it as lawful, do not aid in maintaining it.

Invocation: 42 the injured State; 44 admissibility, nationality of claims and local remedies; 45 loss of the right; 48 a non-injured State may invoke for a collective interest or an obligation owed to the international community as a whole.

Countermeasures: 49 only to induce compliance and reversible; 50 never force, fundamental human rights, humanitarian obligations prohibiting reprisals, peremptory norms or diplomatic inviolability; 51 commensurate with the injury; 52 demand and notice first, urgent measures excepted; 53 terminate on compliance; 54 measures by others.

Savings: 55 lex specialis, 56 customary law otherwise, 57 organisations, 58 individuals, 59 the Charter.

Test yourself

1. List the six circumstances precluding wrongfulness and the limit on all of them.

Consent under article 20; self-defence under article 21; countermeasures under article 22; force majeure under article 23; distress under article 24; and necessity under article 25. The limit is article 26: nothing precludes the wrongfulness of an act which is not in conformity with an obligation arising under a peremptory norm of general international law. Article 27 adds that invoking one of them is without prejudice to compliance once the circumstance ceases and to the question of compensation for material loss.

2. State the conditions for necessity and explain why Hungary failed.

Article 25 permits necessity only where the act is the only way for the State to safeguard an essential interest against a grave and imminent peril and does not seriously impair an essential interest of the State towards which the obligation exists or of the international community; and it is excluded where the obligation rules it out or the State has contributed to the situation. The Court in Gabcikovo held these conditions reflect customary law and that necessity can be accepted only on an exceptional basis. Hungary failed because it could not show that suspending and abandoning the works was the only means available to it. The Court added that even a proved state of necessity would not have terminated the 1977 Treaty; it could only have exonerated Hungary from responsibility for failing to implement it.

3. Distinguish force majeure, distress and necessity.

Force majeure under article 23 is an irresistible force or unforeseen event beyond the State's control making performance materially impossible: there is no choice at all. Distress under article 24 is a situation in which the author of the act has no other reasonable way of saving his own life or the lives of persons in his care: there is a choice, but no reasonable alternative, and the interest at stake is human life. Necessity under article 25 is a deliberate weighing by the State of an essential interest against a grave and imminent peril, where the act is the only means: the State chooses to breach. All three are barred where the State has contributed to the situation.

4. What are the forms of reparation, and what standard governs them?

Article 34 provides that full reparation shall take the form of restitution, compensation and satisfaction, singly or in combination. Restitution under article 35 re-establishes the situation existing before the act, unless materially impossible or involving a burden out of all proportion. Compensation under article 36 covers financially assessable damage, including loss of profits so far as established, so far as not made good by restitution. Satisfaction under article 37 covers what the other two cannot, by acknowledgment, regret or apology, and must not be disproportionate or humiliating. The standard behind all of them comes from Factory at Chorzow: 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 had it not been committed.

5. When are countermeasures lawful?

They must be taken by an injured State only to induce the responsible State to comply, must be limited to the non-performance for the time being of obligations towards it and be so far as possible reversible, under article 49. They must not affect the obligation to refrain from the threat or use of force, obligations protecting fundamental human rights, humanitarian obligations prohibiting reprisals, or peremptory norms, and must respect dispute settlement obligations and the inviolability of diplomatic and consular agents, premises, archives and documents, under article 50. They must be commensurate with the injury suffered, taking into account the gravity of the act and the rights in question, under article 51. The injured State must first call on the responsible State to perform and notify its decision, under article 52, and must terminate them once the responsible State complies, under article 53. Gabcikovo shows the proportionality requirement being applied: the diversion of the Danube was not a lawful countermeasure because it was not proportionate.

6. Can a State that has suffered no injury bring a claim?

Yes, within limits. Article 48 permits a State other than an injured State to invoke responsibility where the obligation breached is owed to a group of States including it and is established for the protection of a collective interest of the group, or where it is owed to the international community as a whole. That is the ILC's response to the passage in Barcelona Traction distinguishing obligations towards the international community as a whole, which are the concern of all States, from those arising in the field of diplomatic protection. What such a State may claim is cessation, assurances and guarantees of non-repetition, and performance of the obligation of reparation in the interest of the injured State or of the beneficiaries, and not compensation for itself.