1 The text of the draft articles, provisionally adopted on first reading by the Commission, may be found in the ILC's report on its work during its forty-eighty session. See Official Records of the General Assembly. Fifty-first Session, Supplement No. 10 (A/51/10 and Corr. l, pp. 125-151). The commentaries to the draft articles, frequently cited in these comments, were compiled by the Secretariat from the Commission's annual reports from 1973 to 1996. See Draft Articles on State Responsibility with Commentaries Thereto Adopted by the International Law Commission on First Reading (Text Consolidated by Secretariat, January 1997, Doc. 97-02583) [hereinafter Commentaries].

2 The difference between measures that are not wrongful and measures that are legitimate is not entirely clear from the text of article 30. “[L]egitimate” seems to be intended to mean ‘within the limitations on countermeasures provided in Part Two.’ See Commentaries at 219. If so, the Commission might consider incorporating this definition directly in article 30.

3 The Commentaries cite measures such as freezing assets to preclude capital flight and measures that “have to be taken immediately or they are likely to be impossible to take at all.” Commentaries at 312. Such examples are useful illustrations but provide limited guidance.

4 The Commentaries might note that an injured state should, where possible, seek to obtain a wrongdoing state's compliance with its international obligations by negotiations.

5 The Air Services Tribunal stated, “The Tribunal thinks that it will not suffice, in the present case, to compare the losses suffered by Pan, Am on account of the suspension of the projected services with the losses which the French companies would have suffered as a result of the counter-measures; it will also be necessary to take into account the importance of the positions of principle which were taken when the French authorities prohibited changes of gauge in third countries. If the importance of the issue is viewed within the framework of the general air transport policy adopted by, the United States Government and implemented by the conclusion of a large number of international agreements with countries other than France, the measures taken by the United States do not appear to be clearly disproportionate when compared to those taken by France.” Air Services Case at 443-444. Such an examination of the state responsibility violation differs from that suggested by the use of the term “gravity” in draft article 49.

6 The draft's concept of effects on an injured state is not entirely clear and thus requires elucidation. It does not, for example, appear to match the ICJ's recent enunciation of an effects measurement, which related the effects of the countermeasure to the injury. See Hungary/Slovakia Case at para. 85 (“an important consideration is that the effects of a countermeasure must be commensurate with the injury suffered, taking account of the rights in question“). Draft article 49, by contrast, relates the countermeasure to the effects of the wrongful act on the injured state. See Commentaries at 321. The Court did not elucidate this “effects” consideration, and its analysis does not clearly indicate which trend in the law it intended to follow.

7 Relating the countermeasure to the aims to be achieved, whether cessation or reparation, differs from the requirement of draft article 47(1) that the countermeasure be necessary. The requirement of necessity aims at the initial decision to resort to countermeasures; it asks, is the resort to countermeasures necessary? See Commentaries at 307. By contrast, the rule of proportionality asks whether the precise measure chosen by the injured state is necessary to induce the wrongdoing state to meet its obligations.

8 As one writer has put it, the cases and practice of states suggests that the appropriate measure is, roughly speaking, whether the countermeasure is “too severe.” See Alland, supra page 3, at 184.

9 For instance, the rules of diplomatic and consular relations set forth in the two Vienna Conventions, Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, Apr. 18, 1961, 500 U.N.T.S. 95, T.I.A.S. No. 7,502; Vienna Convention on Consular Relations and Optional Protocol on Disputes, Apr. 24, 1963, 596 U.N.T.S. 261, T.I.A.S. No. 6,820, establish a system of reciprocity, under which a state that violates its provisions legitimately may be subject to a proportionate denial of reciprocal rights. While we strongly support the principle of inviolability, draft article 50(c) should “not be misinterpreted to preclude actions taken on the basis of reciprocity. See Vienna Convention on Diplomatic Relations, art. 47(2); Vienna Convention on Consular Relations, art. 72(2).

10 Indeed, of the cases that are cited, the economic measures would seem to be lawful even in the absence of the precipitating wrongful act. See Commentaries at 330.

11 Article 19(3) enumerates four categories of crimes, under the general headings of peace and security, self-determination, “safeguarding the human being”, and “preservation of the human environment”. Draft article 40(3) defines “injured state” to include all states in the context of a state crime. Draft articles 51, 52 and 53 treat the consequences of crimes, including modifications of the law of reparation and obligations on states in response to an international crime. 12

12 Moreover, the Security Council has acted in areas defined as “crimes” by the draft articles. For instance, the act of aggression (draft article 19(3)(a)) by Iraq against Kuwait was countered by the Security Council's series of resolutions in 1990 and 1991 under Chapter VII. See, e.g., Security Council Resolutions 660 of 2 August 1990, 678 of 29 November 1990, 686 of 2 March 1991, 687 of 3 April 1991. The Security Council took a number of steps relative to genocide (draft article 19(3) (c)) with respect to the Former Yugoslavia and Rwanda. See, e.g., Security Council Resolutions 770 of 13 August 1992, 808 of 22 February 827 of 25 May 1993 (Former Yugoslavia); Security Council Resolutions 918 of 17 May 955 of 8 November 1994 (Rwanda). Further, as notions of international security increasingly assimilate the idea, of environmental protection against severe degradation, the Security Council may act against aggressive state actions effecting “massive pollution” -- much as it did against Iraq's wanton-destruction of Kuwaiti oil fields in 1991. See Security Council Resolution 687, para. 16 (reaffirming Iraq's responsibility for “damage - including environmental damage and the depletion of natural resources“).

13 As Judge Jessup rioted, this may be true” under certain “accepted and established situations“ even where the state does not show “individual prejudice or individual substantive interest as distinguished from the general interest.” South West Africa Case at 388. 1

14 Moreover, the draft articles already implicitly distinguish among the seriousness of violations. Under customary law, the consequences of violations depend on the nature of the violation. Draft article 44(1) provides that an injured state is entitled to compensation “for the damage caused by the act,” which is measured by the pecuniary value of returning the injured party to the status quo ante. As a result, it becomes unclear-just what the concept of state crimes adds to the question of reparation for a violation of an international obligation.

15 For instance, an injured state might in some circumstances be under a duty to mitigate its damages, analogous to the rules of contract law. See, e.g., 1 M. Whiteman, Damages in International Law 199-216 (1937); G. Aldrich, The Jurisprudence of, the Iran-United States Claims Tribunal 300-03 (1996).

16 See also Chile-United States Commission Convened Under the 1914 Treaty for the Settlement of Disputes: Decision with Regard to the Dispute Concerning Responsibility for the Deaths of Letelier and Moffitt. 31 I.L.M. 1 (Jan. 11, 1992). The Security Council affirmed the principle that Iraq is responsible for damages arising out of the Gulf War. See S.C. Res. S87. The United States has applied the Lusitania standard in a number of wrongful death cases which it has espoused and settled with other states. See, e.g., “Damages for Wrongful Death: United States-Iraq: USS Stark,” in M. Nash, 1981-1988 Cumulative Digest of United States Practice in International Law 2337-40 (discussing U.S. claim against Iraq arising out of attack on U.S. missile frigate USS Stark).

17 While some scholars have found that penal sanctions are available in international law, see, e.g., R. Jennings and A. Watts, 1 Oppenheim's International Law 533 (9th ed. 1992), punitive measures and damages-- that is, .measures and damages unrelated to obtaining cessation of or reparation for a violation of a state's responsibility -- generally are not available to injured states. See, e.g., 8 Whiteman, Damages in International Law, at 1215.

18 Draft article 40(2) does not adequately explain the extent to which its provisions overlap the customary international law of .'treaties and the Vienna Convention on the Law of Treaties. In particular. Article 60 of the Vienna Convention provides specific rules for the situation involving a “material breach of a, multilateral treaty by one of the parties.” Where the draft discusses rights infringed under treaties, it does not develop whether such infringements are akin to material breaches of a treaty or amount to something less. To the extent that the two concepts of infringed right and material breach overlap, the Commission should clarify that the Vienna Convention would govern interpretations of specific treaty regimes and injuries sustained therein.