Appendix:

A. Draft Articles 11-14 Proposed by the Special Rapporteur in his Fourth Report and Referred to the Drafting Committee by the Commission at its Forty-Fourth Session in 1992

Article 11

Counter-measures by an injured State

An injured State whose demands under Articles 6 to 10 have not met with adequate response from the State which has committed the internationally wrongful act is entitled, subject to the conditions and restrictions set forth in the following Articles, not to comply with one or more of its obligations towards the said State.

Article 12

Conditions of resort to counter-measures

1. Subject to the provisions set forth in paragraphs 2 and 3, no measure of the kind indicated in the preceding Article shall be taken by an injured State prior to:

(a) the exhaustion of all the amicable settlement procedures available under general international law, the United Nations Charter or any other dispute settlement instrument to which it is party; and

(b) appropriate and timely communication of its intention.

2. The condition set forth in sub-paragraph (a) of the preceding paragraph does not apply:

(a) where the State which has committed the internationally wrongful act does not cooperate in good faith in the choice and the implementation of available settlement procedures;

(b) to interim measures of protection taken by the injured State, until the admissibility of such measures has been decided upon by an international body within the framework of a third party settlement procedure;

(c) to any measures taken by the injured State if the State which has committed the internationally wrongful act fails to comply with an interim measure of protection indicated by the said body.

3. The exceptions set forth in the preceding paragraph do not apply wherever the measure envisaged is not in conformity with the obligation to settle disputes in such a manner that international peace and security, and justice, are not endangered.

Article 13

Proportionality

Any measure taken by an injured State under Articles 11 and 12 shall not be out of proportion to the gravity of the internationally wrongful act and of the effects thereof.

Article 14

Prohibited counter-measures

1. An injured State shall not resort, by way of counter-measure, to:

(a) the threat or use of force [in contravention of Article 2, paragraph 4, of the United Nations Charter];

(b) any conduct which:

(i) is not in conformity with the rules of international law on the protection of fundamental human rights;

(ii) is of serious prejudice to the normal operation of bilateral or multilateral diplomacy;

(iii) is contrary to a peremptory norm of general international law;

(iv) consists of a breach of an obligation towards any State other than the State which has committed the internationally wrongful act.

2. The prohibition set forth in paragraph 1(a) includes not only armed force but also any extreme measures of political or economic coercion jeopardizing the territorial integrity or political independence of the State against which they are taken.

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