1 See International Law Commission, Report on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, at 124, UN Doc. A/55/10 (2000) [hereinafter ILC Draft Articles on State Responsibility]. Separately, the ILC has sought to elaborate rules on liability for injuries arising from acts not prohibited by international law. See id. at 273. For information on the ILC and its work, see <http://www.un.org/law/ilc/index.htm>.

2 Draft Articles on State Responsibility: Comments of the Government of the United States of America (Mar. 1, 2001) [hereinafter U.S. Comments] (on file at GWU). The ILC edited and interspersed the United States’ comments with the comments of other states in State Responsibility: Comments and Observations Received from Governments, UN Doc. A/CN.4/515 (2001) [hereinafter Comments and Observations].

3 ILC Draft Articles on State Responsibility, supra note 1, at 134, Arts. 41-42.

4 See U.S. Comments, supra note 2, at 7-8; Comments and Observations, supra note 2, at 52-53.

5 ILC Draft Articles on State Responsibility, supra note 1, at 135, Art. 43.

6 See U.S. Comments, supra note 2, at 8-9; Comments and Observations, supra note 2, at 64.

7 ILC Draft Articles on State Responsibility, supra note 1, at 129, Art. 23, states: “The wrongfulness of an act of a State not in conformity with its international obligations to another State is precluded if and to the extent that the act constitutes a countermeasure directed towards the latter State under the conditions set out in articles 50 [47] to 55 [48].” The numbers in brackets correspond to the numbers of the articles as adopted on first reading.

8 See U.S. Comments, supra note 2, at 2; Comments and Observations, supra note 2, at 76.

9 See U.S. Comments, supra note 2, at 2-6; Comments and Observations, supra note 2, at 76-77.

10 II.C Draft Articles on State Responsibility, supra note 1, Art. 51(1), provides that countermeasures shall not involve any derogation from obligations (a) to refrain from the threat or use of force as embodied in the UN Charter; (b) for the protection of fundamental human rights; (c) of a humanitarian character prohibiting any form of reprisals against persons protected thereby; (d) arising under other peremptory norms of general international law; and (e) lo respect the inviolability of diplomatic or consular agents, premises, archives, and documents.

11 ILC Draft Articles on State Responsibility, supra note 1, Art. 52, provides: “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question.”

12 The United States argued that these provisions contravene customary international law, which permits an injured state to take countermeasures prior to seeking negotiations with the responsible state, and also permits countermeasures during negotiations. See Air Services Agreement of March 27, 1946 Between the United States of America and France, 18 R.I.A.A. 417, 443-44 (1978) (it is not “possible, in the present state of international relations, to lay down a rule prohibiting the use of countermeasures during negotiations”).

13 U.S. Comments, supra note 2, at 3-5 (citations omitted); see Comments and Observations, supra note 2, at 81-83.

14 See State Responsibility: Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.602 (2001).

15 Id., Arts. 41-42.

16 Id., Art. 43.

17 Id.Arts. 50-55 bis. Article 52 on proportionality was not altered as proposed by the United States.