Reciprocity, Proportionality, and The Law of Treaties PDF

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Virginia Journal of International Law

Winter, 1994
*295 RECIPROCITY, PROPORTIONALITY, AND THE LAW OF TREATIES
D.W. Greig [FNa]
Copyright (c) 1994 Virginia Journal of International Law Association; D.W. Greig
INTRODUCTION
The balancing of interests is fundamental to the law's role in promoting the well being of society. In establishing and maintaining this balance, the concepts of reciprocity and proportionality figure prominently.
At common law, the very idea of contract traversed, even if it did not originate in, the notion of reciprocity. A promise was enforced in order to ensure performance of the reciprocal obligation for a benefit
already received. [FN1] Issues of proportionality, on the other hand, arise principally in the realm of remedies
for the breach of an obligation. The reaction of a victim or the award of damages by a court must be in proportion to the breach and its consequences. Thus, an innocent party to a broken contract may only terminate the
contract if the nature of the breach is sufficiently serious [FN2] or the broken contract term is sufficiently important. [FN3] Correspondingly, an award of damages for a breach of contract is based upon the difference
between the value of proper performance and the value of the performance received. [FN4]
In the European Community, proportionality has assumed great importance as a general principle of law
against which various government actions may be tested for validity. One example arose under European Economic Community (EEC) sugar market regulations. [FN5] *296 EEC regulations required sugar exporters to
make a sizable security deposit at the time of their first export application. This deposit was to be forfeited either
if a subsequent license application was not made within the prescribed time limit or if the exporter failed to export the goods as agreed. In a case involving an application that was late by less than four hours, the European
Court of Justice held that applying the same penalty for the breach of a secondary obligation (failing to comply
with a time limit) as for the breach of the primary obligation (not carrying out the agreed proposal) would violate the requirement of propor-tionality. [FN6]
The principle of proportionality has also been invoked by the European Court of Justice in a series of cases
involving the Treaty of Rome. [FN7] Article 48(4) of the Treaty, which allows a member state to discriminate in
favor of its own nationals in public service appointments, has given rise to a number of cases before the Court
because the provision is a major exception to the concept of free movement of workers within the Community.
The exception appears in a number of guises, but its difficulties can be seen most clearly in the context of the
promotion issue. Because upper levels of public service may be barred to non-nationals, Belgium attempted to
justify a complete ban on the recruitment of non-nationals for public service jobs. The European Court of Justice
held that a total ban would be disproportional to what would be necessary to ensure the objectives of article
48(4). [FN8]
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
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The principle of proportionality has spilled over into other fora. It has been applied by the European Court
of Human Rights, [FN9] and *297 it will eventually form part of the armory for courts of European Community
member states when dealing with Community law. In the United Kingdom, however, the House of Lords has
hitherto resisted the possible adoption in the future of the principle [FN10] as a basis for judicial review in
English law, [FN11] restricting the test of reasonableness in decision making to the avoidance of irrationality.
[FN12] There is undoubtedly support for a narrow version of the test in Australian authorities, [FN13] but there
have also been indications of a more extensive basis for review. [FN14] In more recent times, this has been developed into a broad recognition of the principle of proportionality. In the words of Wilson, Dawson, Toohey,
and Gaudron, JJ: In the course of argument, the parties accepted the reasonable proportionality test of validity .
. . , namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit
of the enabling purpose. [FN15]
*298 For the most part, in mature legal systems, general propositions regarding the need for reciprocity and
proportionality have been replaced by more specific rules which obscure the original inspiration. Thus, the reciprocal basis of contract is, in the common law, expressed in the form of consideration, while proportionality is
represented by a variety of rules in different situations. [FN16]
The purpose of this Article is to consider the role of both reciprocity and proportionality in international law,
with particular regard to the law of treaties. Reciprocity cannot always be separated from proportionality, either
analytically or in practice; nevertheless, each has some discrete applications. Often, where the separation is not
possible, the principles are being employed in a political rather than a legal setting. For example, international
law and its development are often dependent upon the political force of reciprocity in that rights benefitting one
group of states are recognized in return for the acceptance of different rights regarded as advantageous by other
states. Similarly, an international actor may seek to establish the political acceptability of an action by reference
to its proportionality to the situation with which the state is faced. In turn, this could lead to acceptance of the
legal validity of such actions in the future provided, of course, that the actions are proportional to the emergency
or threat.
With respect to the influence of reciprocity on legal development, much of the law on diplomatic and sovereign immunity was *299 based upon the notional, if not the actual, reciprocal recognition of such rights. Thus,
Harvard's 1932 Research in International Law referred to diplomatic intercourse as a normal function of states
and went on to say that, [o]n the basis of reciprocity, diplomatic privileges and immunities are the accepted
means by which such normal functioning is assured. [FN17] Similarly, given the common philosophy ensuring
the inviolability of both the sovereign and his or her ambassador, [FN18] reciprocity was a relevant factor in securing the immunity of the foreign state in the courts of another country. In Le Gouvernement espagnol v. Casaux, the French Cour de Cassation stated that [t] he reciprocal independence of States is one of the most universally recognized principles of the law of nations;-it results from this principle, that a government may not be
subjected, in regard to its undertakings, to the jurisdiction of a foreign State. [FN19] The position at common
law was essentially the same. In the Cristina, [FN20] admittedly, Lord Wright treated reciprocity as an alternative explanation of sovereign immunity, although it would be equally possible to view the explanations he
provided as of cumulative importance:
The rule may be said to be based on the principle par in parem non habet imperium, no State can
claim jurisdiction over another sovereign State. Or it may be rested on the circumstance that in general the
judgment of a municipal Court could not be enforced against a foreign sovereign State, or that the attempt
to enforce might be regarded as an unfriendly act. Or it may be taken to flow from reciprocity, each sover-
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eign State within the community of nations accepting some subtraction from its full sovereignty in return
for similar concessions on the side of the others. [FN21]
*300 The role of reciprocity in the development of legal rules is also clearly evident in the context of the law
of armed conflict. Prior to the French Revolution there were treaties whereby states regulated their relations with
regard to warlike activities; reciprocity was either implicit or expressed in various edicts, acts, and treaties from
this period. The 1785 Treaty of Amity and Commerce between the United States and Prussia contained detailed
protection for prisoners of war -- an implicitly reciprocal agreement. [FN22] In 1778, Catherine II of Russia issued instructions providing among other things that Turkish prisoners of every captured vessel shall be treated
with great humanity, provided with provisions and against every other need and not be allowed to lack for anything. [FN23] In such prescriptions the reciprocity was latent in the sense that, faced with inconsistent conduct
by an adversary, the instruction would be withdrawn or suspended as a retaliatory measure. On the other hand,
expectations of a reciprocal response were made explicit in an invitation issued to potential antagonists in the
decree of the French National Assembly of May 25, 1793, relating to the exchange of prisoners of war. [FN24]
A year earlier, on May 4, 1792, the Assembly had decreed that les prisoniers de guerre sont sous la sauvegarde
et protection de la nation. [FN25] This philosophy formed the basis of a later instrument providing that sick and
wounded prisoners were, on condition of reciprocity, to be treated with the same care as French soldiers. [FN26]
The idea of reciprocal obligations also appeared in a nineteenth century principle whereby each combatant state
was liable to compensate an adversary for the cost of feeding and clothing its prisoners. [FN27]
Later development of the law of armed conflict, known today as international humanitarian law, took place
mainly through a series of multilateral conventions, including most notably the Hague Regulations of 1899 and
1907, the Geneva Conventions of 1929 and 1949, and the Optional Protocols of 1977. As the law and customs
*301 of warfare were transformed into conventions, the significance of reciprocity shifted to its remedial aspect.
Reciprocity can still have a law-making role in areas not covered by the new conventional rules, or a lawamending role in the areas that are so covered, but reciprocity's principal relevance today concerns the extent to
which derogation from a particular provision is permissible in retaliation for the breach of that provision.
Non-compliance with a treaty provision in response to a similar breach of obligations by another party is,
generally speaking, a matter of treaty law -- one to which the discussion will soon turn. However, the permissibility of acts of retaliation may also have to be considered in light of other factors. For example, if it is possible
to establish that the broken treaty provision is part of the jus cogens, the range of states entitled to take remedial
action would be extended beyond the parties to the treaty in question. Short of that, it is also possible for the
parties to limit the permissible remedies for a material breach of a treaty. Thus, common article 1 of the four
Geneva Conventions of 1949 provides that the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances. [FN28] The significance of this provision is amplified by
article 3, which prescribes certain minimum standards in the case of a domestic armed conflict to which the
Convention does not otherwise apply, and which stipulates that certain acts set out therein shall remain prohibited at any time and in any place whatsoever. [FN29] Commenting on provisions such as article 3, Fitzmaurice
contended that
the character of the treaty is such that, neither juridically, nor from the practical point of view, is the
obligation of any party dependent on a corresponding performance by the others. The obligation has an
absolute rather than a reciprocal character -- it is, so to speak, an obligation towards all the world rather
than towards particular parties.*302 Such obligations may be called self-existent, as opposed to concessionary, reciprocal or interdependent obligations . . . . [FN30]
This description gives rise to a number of theoretical problems related to the concept of obligations erga
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omnes and, inevitably, to the jus cogens. With regard to the former, the International Court of Justice has
provided alternative descriptions relevant to the present discussion. In the Reservations case, the Court commented on the rights of the parties to the Genocide Convention as a group:
In such a convention the contracting States do not have any interests of their own; they merely have,
one and all, a common interest, namely, the accomplishment of those high purposes which are the raison
d'etre of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights
and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the
parties, the foundation and measure of all its provisions. [FN31]
It follows that reciprocity is not the primary factor in such an arrangement; rights and obligations do not exist between individual parties. Instead, the obligations are owed to the contracting parties as a group, and presumably the correlative rights are vested in the group as well.
In Barcelona Traction, [FN32] on the other hand, the Court contrasted rights belonging to individual states
(such as those arising in cases of diplomatic protection) and rights vested in the international community as a
whole. A well known passage states:
[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-' a-vis another State in the field of diplomatic protection. 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 *303 have a legal interest in their protection; they are obligations erga
omnes.
. . . Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law ( Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951,
p. 23); others are conferred by international instruments of a universal or quasi-universal character.
[FN33]
The Court's reference to the Reservations case was presumably to the statement that the principles underlying the Genocide Convention were principles which are recognised by civilised nations as binding on States,
even without any conventional obligation. [FN34] In this light, the common interest of the contracting parties is
better expressed in the Barcelona Traction formula of obligations owed erga omnes, i.e., to the international
community as a whole. On the other hand, an obligation of the kind described in the Reservations case, involving the proscription of a crime under international law, [FN35] takes on the quality of jus cogens. It is, of
course, not certain that obligations erga omnes invariably coincide with the rules of the jus cogens.
Although the difference between jus cogens and obligations erga omnes can be uncertain, the two cases outline several different levels of obligation: those owed to individual states; those owed to the parties to the treaty
as a group; and those owed to the international community as a whole. In the 1949 Geneva Conventions, it is
possible to discern a distinction along these lines between the effects of common article 1 and common article 3.
[FN36] Article 1 provides, in effect, that the whole convention is to operate independently of the reactions and
wishes of individual parties because they have undertaken to respect and to ensure respect for the *304 present
Convention in all circumstances. [FN37] This provision may be taken to signify acceptance of both individual
duties to respect, and a joint duty to ensure respect for, the convention in all circumstances. Under article 3, cer-
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tain acts are to remain prohibited at any time and in any place whatsoever. [FN38] The acts proscribed include
murder of all kinds, mutilation, cruel treatment and torture, the taking of hostages, humiliating and degrading treatment, and so on. [FN39] These fundamental obligations are binding in an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties -- to which the provisions
of the Convention would not otherwise apply. [FN40] However, given their fundamental nature as human rights
recognised by civilised nations as binding on States, [FN41] it can be argued that this set of obligations has
ce caract'ere de normes imperatives, ce caract'ere du jus cogens, [FN42] with irrevocable rights of enforcement
vested in the international community.
From a procedural perspective, there are obvious difficulties with the concept of community enforcement of
legal obligations. It is conceivable in theory, though hardly likely in practice, for a treaty to bestow jurisdiction
on an international tribunal with respect to community rights. With regard to obligations erga omnes, there is no
mechanism for the international community to present a claim in an international judicial forum.
It would make little sense to have a concept of international obligations encompassing obligations beyond
the scope of judicial determination. In fact, the concept of obligations erga omnes has been employed to argue
that a particular state may represent the international community in order to enforce such obligations. This argument failed in the South West Africa cases, [FN43] but similar reasoning was approved in the Barcelona Traction judgment where the Court specifically asserted that because of the importance of the rights involved, all
States can be held to have a legal interest in *305 their protection. [FN44] This argument has been employed
before the International Court by Australia and New Zealand in the Nuclear Tests cases [FN45] and by Portugal
in the East Timor case. [FN46]
This Article focuses not so much upon the individual enforceability of rights arising from obligations erga
omnes, but rather on the extent to which the recognition of such rights affects the rules on reciprocity and proportionality in the context of responses available for the breach of treaty obligations. The answer to that question is far from clear even at the outset, because it is uncertain what obligations are obligations erga omnes. It is
easy to point out that because the fundamental human rights referred to in article 3 of the Geneva Conventions
of 1949 are protected at all times and in all places, appropriate remedies for breach do not include reciprocal
withdrawal of protection from nationals of an offending state. On the other hand, if the use of force in a manner
contrary to article 2(4) of the U.N. Charter is a breach of the jus cogens (and obligations erga omnes), principles
of reciprocity and proportionality remain relevant by virtue of customary law and article 51 of the Charter, both
of which affirm the existence of the right of self-defense. [FN47] As a tentative conclusion, the continued relevance of reciprocity and proportionality depends upon the scope of the obligation in question. Under a treaty
which appears to create rights vested in the parties as a group, the parties may intend the treaty's provisions to
remain binding on all of them irrespective of a material breach by one of their number. However, it is open to
treaty parties to prescribe the remedies available in case of breach. Thus, in relation to article 1 of the Geneva
Conventions of 1949, it is clear that the parties intended to ensure the continued operation of *306 the particular
convention in all circumstances. [FN48] In this way, reciprocal conduct as a proportional response to a breach
was excluded.
I. RECIPROCITY IN A JURISDICTIONAL SETTING
The question of whether, or to what extent, reciprocity is a general principle of law arises most significantly
in the bilateral relations of states and as a consequence of the requirement that such relations be conducted in
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good faith. Thus, if a relationship is established by treaty, the parties must perform that treaty in good faith, and
also interpret the treaty in good faith. [FN49]
Good faith and reciprocity also have a role to play in ameliorating the effects of reservations in a jurisdictional setting. [FN50] In examining the role played by reciprocity, one must exercise care because the term
reciprocity has been used in different ways. The jurisdiction of international tribunals is essentially reciprocal:
article 36(2) of the Statute of the International Court of Justice limits the Court's jurisdiction to cases where both
parties have accepted the same obligation. Even without such a provision, the Court could hardly dispense with
reciprocity. Unless otherwise authorized, no international tribunal could hear and decide a case unless both
states had accepted that tribunal's jurisdiction with respect to the dispute in question.
Where a dispute is submitted to the International Court of Justice, difficulties arise with regard to the notion
of reciprocity if the declaration of one of the parties contains an automatic reservation. By such a reservation,
the declarant purports to exclude from the Court's jurisdiction matters within that state's national or domestic
jurisdiction as understood or determined by the state concerned. [FN51] Whereas a reservation limiting jurisdiction to disputes hereafter arising can operate to the advantage of the other party to a dispute*307 if jurisdiction
is contested on temporal grounds, it is not obvious what benefit can inure to a respondent state from an automatic reservation in the applicant's declaration. However, in the Norwegian Loans case, [FN52] the Court held that
Norway was entitled to rely upon the reservation in the French declaration excluding differences relating to
matters which are essentially within the national jurisdiction as understood by the Government of the French Republic from the Court's jurisdiction. Thus, Norway could claim that the matter in dispute fell within Norway's
national jurisdiction as understood by that state. The Court explained:
In accordance with the condition of reciprocity to which acceptance of the compulsory jurisdiction is
made subject in both Declarations and which is provided for in Article 36, paragraph 3, of the Statute,
Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes
understood by Norway to be essentially within its national jurisdiction. [FN53]
This passage raises a number of issues, and may may be analyzed from two alternative points of view. First,
the condition of reciprocity may be regarded simply as a reference to the principle of reciprocity upon which article 36(2) of the Statute of the Court is based; second, the condition of reciprocity may signify something different from that principle. If so, the requirement of reciprocity must be further explored.
A. The Condition of Reciprocity Is Equivalent to the Principle of Article 36(2)
There have certainly been a number of assertions that the principle of reciprocity implicit in article 36(2) of
the Statute and the explicit condition of reciprocity referred to in article 36(3) are identical. [FN54] However, as
noted above, [FN55] it is not immediately apparent how on the ordinary meaning of reciprocity (i.e., that *308
jurisdiction exists only within the area common to both declarations) it is possible for one party to use the other
party's automatic reservation to its own advantage.
In the Interhandel case, [FN56] the U.S. declaration of August 26, 1946 accepted jurisdiction for disputes
hereafter arising, whereas the Swiss declaration of July 28, 1948 had contained no such restriction. The United
States argued that the reciprocity principle required that the Court's jurisdiction be limited to disputes arising
after the date of the Swiss declaration. [FN57] Although the Court rejected this contention, its judgment leaves
the breadth of the notion of reciprocity in question.
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To begin, the Court expressed its position in the widest terms: Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which
it has not expressed in its own Declaration but which the other Party has expressed in its Declaration. [FN58]
At first glance, therefore, a declarant state (such as Norway) would be entitled to rely upon an automatic reservation expressly benefitting only the other state (as was true of the French declaration). On this reasoning, the
conclusion of Norwegian Loans was justifiable in terms of the reciprocity principle.
There are, however, flaws in this reasoning. First, the above passage from Interhandel refers only to the respondent state's right to invoke a reservation in the other party's declaration; it provides no guidance as to the
consequences of such an invocation. In most cases, the Court will simply decide whether, on the facts, the reservation invoked excludes the substance of the dispute from the ambit of the Court's jurisdiction. In Norwegian
Loans, the Court had to decide whether, as a matter of law, the reservation as expressed could be subject to Norway's determination of national jurisdiction. The answer to this question was not clearly provided by the principle of reciprocity. As the Court explained in Interhandel, in words suggesting a narrower interpretation of the
principle, [r]eciprocity . . . cannot justify a State . . . in relying upon a restriction which the other Party . . . has
not included in its own Declaration. [FN59] In Norwegian Loans, while Norway was entitled to rely upon the
restriction in the French declaration regarding matters*309 within France's national jurisdiction, it would have
been inconsistent with the wording of the French reservation to permit Norway to exclude matters it held to be
within its own national jurisdiction. For the reservation to operate in that way, some further justification was
needed.
In this light, it is hardly surprising that the Court in Norwegian Loans was careful to provide a different explanation as to how Norway could take advantage of the French reservation. The Court described a concept of
reciprocity quite distinct from its appearance in article 36(2) of the Statute, preferring instead the condition of
reciprocity expressed in the declarations of the two parties and provided for in article 36(3) of the Statute.
While the first part of this explanation of the decision -- the avoidance of reciprocity as referred to in article
36(2) -- seems acceptable, it does not follow that the second part -- the preference for the condition of reciprocity -- is necessarily correct.
B. The Condition of Reciprocity as an Overriding Requirement
It should first be noted that the condition of reciprocity was probably inserted in article 36(3) of the Statute
of the Court to enable a declarant state to insist on the acceptance by specified states of the Court's jurisdiction
before the declarant's acceptance took effect; [FN60] i.e., the condition of reciprocity was a form of condition
precedent. However, even if this was the original intention behind the condition of reciprocity in article 36(3) of
the Statute, it could not have provided the only meaning of that condition. Such a narrow definition would
render pointless the ritualistic clause -- on condition of reciprocity -- included in many declarations. In most of
these cases the states concerned were simply reinforcing the principle of reciprocity in article 36(2). This was
true of the Norwegian declaration in which Norway recognizes as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the
jurisdiction of the International Court of Justice. [FN61] The French declaration, in its English translation, was
in substantially the same terms, [FN62] as indeed were those of a significant *310 number of other states.
[FN63] What appears to have been the obvious intention and meaning of this terminology is inconsistent with
the Court's precise selection of the condition of reciprocity as the basis for its decision in Norwegian Loans. It
was not any principle of reciprocity in article 36(2) but the conditions of reciprocity in the two declarations and
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expressed in article 36(3) that enabled Norway to employ the French reservation in the way that it did.
On the face of the record of the judgment, the Court's conclusion seems to have required both France and
Norway to have included in their declarations the proviso that they had been made on condition of reciprocity.
The reason for this was that the reference to the condition of reciprocity in article 36(3) on its own would not be
sufficient because it is no more than a facilitating provision (enabling a state to employ such a condition if it
wishes), unlike the principle of reciprocity in article 36(2), which is implicit in the system of compulsory jurisdiction.
This conclusion is unfortunate. As has already been pointed out, it is not easy to reconcile with the words
employed in the French and Norwegian declarations. The number of states making declarations on condition of
reciprocity, where that condition was not specifically employed as synonymous with the language of article
36(2), and to which therefore the Norwegian Loans decision was more properly applicable, was relatively small.
[FN64] Moreover, if a respondent state's declaration had not been made expressly on condition of reciprocity,
that state would not be able to take advantage of an applicant state's automatic reservation. This imbalance could
not be redressed by the principle of reciprocity, which, as already explained, is no more than the recognition
that, *311 since two unilateral declarations are involved, such jurisdiction is conferred upon the Court only to
the extent to which the two Declarations coincide in conferring it. [FN65]
As the principle of reciprocity does not, on the Court's own descriptions of it, provide an answer, and the
condition of reciprocity is unsatisfactory in origin, in the requirements ascribed to it (the purely fortuitous fact of
its inclusion in the parties' declarations), and in the application of those requirements (to declarations in which
the condition seemed to be equated with the principle of reciprocity in article 36(2)), an alternative justification
for the decision in Norwegian Loans is needed. If one considers automatic reservations in a broader context, the
reasons for Judge Lauterpacht's attack on their validity are readily understood. [FN66] It is contrary to the notion of a legal obligation for a state to submit to the Court's jurisdiction and yet be entitled to determine whether
or not the obligation exists (i.e., to determine whether or not a matter is within its domestic jurisdiction). Furthermore, such a reservation also conflicts with the basic principle, expressed in article 36(6) of the Court's Statute, that disputes on matters of jurisdiction should be settled by a decision of the tribunal concerned.
Lauterpacht also argued that automatic reservations constituted a denial of objective judicial assessment of
the circumstances, because the reserving state could make a subjective decision to withdraw the matter from the
Court. However, while such reservations reflect subjective political interests, a declaration must be accepted as
a manifestation of an intent to accept the Court's jurisdiction. This intention to submit to jurisdiction would entitle the Court to impose objective standards on such reservations. Thus, the same obligations of good faith that
are integral parts of the performance and interpretation of treaties in general apply a fortiori to arrangements,
whether by treaty or under article 36(2) of the Statute, for the judicial settlement of disputes. Norway contended
that automatic reservations, such as that employed by France,
must be interpreted in good faith and should a Government seek to rely upon it with a view to denying the jurisdiction of the Court in a case which manifestly did not involve a 'matter which is essentially
within the national *312 jurisdiction' it would be committing an abus de droit which would not prevent
the Court from acting. [FN67]
The principle of good faith is not just a means of ensuring the Court's scrutiny of an automatic reservation. It is also a means of ensuring the validity of an automatic reservation through the imposition by the Court
of an objective standard. Reciprocity, in other words, is a translation into jurisdictional terms of this aspect of
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the overriding requirement of good faith in dealing with other parties who have accepted the Court's jurisdiction
under article 36(2).
To summarize, the Court's various references to reciprocity in the context of article 36 have not been particularly informative. Article 36(2), with its emphasis on the acceptance by states of the same obligation, is no
more than an acknowledgment of the self-evident principle that jurisdiction exists to the extent that the dispute
is covered by the declaration of both parties to the litigation. It is only loosely that it can be said that there is a
reciprocity of obligations. In this sense, reciprocity is essentially static: it is no more than a common denominator, an existing fact. In contrast, reciprocity as applied to the French declaration in Norwegian Loans is a positive or active principle. It enabled the French declaration to be transposed to the advantage of Norway. This active principle of reciprocity is not dependent upon the terms of the parties' declarations. It arises from the requirement of good faith in the application of both the reservation and the declaration of which it forms part, and
therefore exists independently of any state's declaration accepting jurisdiction on condition of reciprocity. Also,
the principle is not connected with article 36(3) of the Statute. It is an inherent part of the system of compulsory
jurisdiction, but distinct from the principle expressed in article 36(2).
C. The Scope of Reciprocity
Under either analysis of reciprocity, its scope remains unclear. In particular, how far does it extend to balance a lack of equality between the terms of two declarations?
In the Military and Paramilitary Activities ( Nicaragua) case, [FN68] the United States' declaration was
subject to termination on six months' notice, but the Nicaraguan declaration contained no provision*313 relating
to termination. Despite the absence of such a provision, it was not doubted that Nicaragua was entitled to withdraw its declaration. Instead, the parties differed over whether a notice of termination could be with immediate
effect (the United States' view) or whether the termination could take effect only after reasonable notice (the
Nicaraguan view). The United States argued that the principle of reciprocity entitled the United States, as well
as Nicaragua, to withdraw with immediate effect. It would therefore follow that the modification to the United
States declaration by the Shultz letter three days before Nicaragua's application to the Court prevented the Court
from asserting jurisdiction. [FN69]
The Court rejected this argument for three reasons. First, the Court distinguished between the scope and
substance of the commitments entered into under a declaration and the formal conditions of their creation,
duration or extinction. [FN70] Reciprocity was applicable to the former category, but not to the latter. Second,
the Court asserted that reciprocity could not be employed to excuse departure from the terms of a State's own
declaration, whatever its scope, limitations or conditions. [FN71] Third, the Court refused to accept the United
States' argument that a declaration containing no provision dealing with termination was terminable with immediate effect. [FN72]
Only the Court's first two reasons are relevant to the discussion of reciprocity. The second is perhaps the
more straightforward. Presumably, the Court believed that reciprocity can operate only in the gaps not covered
by a declaration. Where a declaration makes an express provision, reciprocity cannot allow a departure from
that provision, even if there is a manifest inequality as a result. Thus, even if Nicaragua's declaration had contained a clause entitling Nicaragua to terminate its obligations without notice, the United States' declaration, permitting termination on six months' notice, prevented reciprocity from redressing the imbalance. Under this reasoning, however, if the United States' declaration had contained no termination provision, while Nicaragua's de-
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claration permitted termination by notice with immediate effect, then reciprocity would have operated to the advantage of the United States.
*314 This possibility, however, would probably have been ruled out by the Court's first reason. Where the
issue of termination concerns the formal conditions of the creation, duration and extinction of a party's commitments under its declaration, reciprocity does not apply. This distinction, permitting the application of reciprocity on matters regarding the scope and substance of a party's obligations, might appear to justify the
Court's application of the principle of reciprocity in Norwegian Loans. [FN73] In that case, it could be argued
that the Court was concerned with the scope of the obligations arising from the French automatic reservation,
rather than with the formal conditions relating to the creation, duration, or extinction of those obligations. This
distinction, however, is unworkable. The decision in the latter case did depend upon the existence of an obligation to submit to the jurisdiction of the Court rather than upon the scope of the obligations created by the Norwegian and French declarations. Norway's announcement to the Court of its understanding that the subject matter
of the dispute fell within its national jurisdiction had the effect of extinguishing any obligation it may have been
under to submit to Court's jurisdiction. As a consequence, the Court did not examine the scope of the obligations
created by the declarations, nor did it consider any limitations on the operation of an automatic reservation.
[FN74]
Given no adequate distinction between the scope and the existence of obligations, one must extract such a
distinction from the sentence in Norwegian Loans referring to the formal conditions for the creation, duration
or extinction of the obligations. Although the language of this sentence in its context seems to apply to individual obligations, it would make more sense if the formal conditions applied to the commitments as a whole
(i.e., to the whole declaration), rather than to commitments as component obligations of the declaration. If the
formal conditions are not limited to the declaration as a whole, then the limitation on reciprocity could conceivably apply to those automatic reservations which require a formal condition for them to take effect. For example, Norway was able to express its understanding that the matter was within its national jurisdiction in a
purely informal manner because that is all that the French reservation required. *315 On the other hand, if the
automatic reservation had been in the form of the United States' version, requiring a determination that the matter fell within a state's domestic jurisdiction, it could well be argued that a determination denotes a formal decision by the state making it. It seems unlikely that the Court in the Nicaragua case was drawing such a distinction. In order to avoid such an interpretation, it seems necessary to conclude that the formal conditions refer to
the declaration as a whole and its creation, duration and extinction rather than to the distinct commitments
arising thereunder.
The Nicaragua case presents a unique reciprocity issue. In earlier decisions, the Court had responded to requests to apply reciprocity between existing declarations with a nexus created by an application to the Court. In
Nicaragua, the United States had modified its declaration and then sought to justify the modification by reference to a declaration the nexus to which was supplied by an application to the Court subsequent to the act of
modification. [FN75] The Court expressed doubts about this argument:
The Court is not convinced that it would be appropriate, or possible, to try to determine whether a
State against which proceedings had not yet been instituted could rely on a provision in another State's declaration to terminate or modify its obligations before the Court was seised. The United States argument
attributes to the concept of reciprocity, as embodied in article 36 of the Statute, especially in paragraphs 2
and 3, a meaning that goes beyond the way in which it has been interpreted by the Court, according to its
consistent jurisprudence. That jurisprudence supports the view that a determination of the existence of
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the same obligation requires the presence of two parties to a case, and a defined issue between them,
which conditions can only be satisfied when proceedings have been instituted. [FN76]
This pronouncement provides no adequate explanation of the decision. It is true that to have allowed reciprocity to operate in this way would have gone beyond the Court's previous jurisprudence. However, this is
hardly decisive. As previously explained, Norwegian Loans could not have been justified on the previous *316
understanding of article 36(2). Nor was the decision in Norwegian Loans justifiable under the condition of reciprocity referred to in article 36(3), which in origins did not have such a meaning. Finally, to attribute this result
to the existence of an express condition of reciprocity in each declaration would undoubtedly have given an entirely novel significance to that condition. Even amongst members of the Court who supported a notion of preseisin reciprocity there seem to have been doubts as to its logical soundness. [FN77] Nevertheless, in view of the
extension of reciprocity in Norwegian Loans, and in the interests of good faith and equality between the parties,
there is no reason why reciprocity should not apply to test the validity of a pre-seisin modification or withdrawal
of a declaration.
Consider the position of a state revoking its acceptance of the Court's jurisdiction under article 36(2). On
the basis of the Court's pronouncements in Nicaragua, the revocation must take place in accordance with the requirements of the state's declaration or, if there is no period of notice prescribed, after giving reasonable notice. It does not follow that a revocation in breach of the requirements prescribed, with intended immediate effect, is void of all legal consequences. While some acts of termination or modification of declarations have been
met with objections, for the most part states have tended to acquiesce in such changes.
What is the position of an objecting state in these circumstances? If a failure by a state to abide by the period of notice prescribed by its own declaration constitutes a breach of an obligation owed to other declarant
states, then such states may object to the breach. If the declaration is silent on the issue of termination, requiring, in the Court's view, reasonable notice before termination, states would be entitled to protest against termination without notice. But would a right to protest be available to a state whose declaration provided for termination upon notice with immediate effect?
The power to preserve rights by protest is linked to issues of good faith. A failure to protest by other states
would inure to the benefit of the actor. Good faith prohibits a non-protesting state from retreating from its original position, particularly if reliance has been placed on the apparent acceptance. Similarly, the protest *317 of
a state whose own declaration provided for termination upon immediate notice would be ineffective. Notions of
good faith, if not reciprocity, support this view.
As to the more general doubts expressed about the idea of pre-seisin reciprocity, there are good reasons for
discounting them. The system of compulsory jurisdiction comprises two stages: the declarations accepting jurisdiction, and the subsequent seizing of the Court of a dispute by the application made to the Court. The Court
has made it clear that a declaration creates immediate obligations between the declarant and other states that
have accepted the jurisdiction under article 36(2). As described in the Right of Passage case:
The Court considers that, by the deposit of its Declaration of Acceptance with the Secretary-General,
the accepting State becomes a Party to the system of the Optional Clause in relation to the other declarant
States, with all the rights and obligations deriving from Article 36. The contractual relation between the
Parties and the compulsory jurisdiction of the Court resulting therefrom are established . . . by the fact of
the making of the Declaration. . . . For it is on that very day [of making the Declaration] that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned.
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[FN78]
Under the Court's own opinion, therefore, the declaration is a crucial first step in the process. Moreover,
even if being a party to the Statute (as are all members of the United Nations) is not enough to bring into play
principles of good faith sufficient to establish a norm of reciprocity, making a declaration to accept jurisdiction
must surely have that effect. A contractual relation or consensual bond in the specific context of compulsory
jurisdiction is more than adequate to justify a requirement of reciprocity operating with regard to that type of
jurisdiction. It is implicit in and an integral part of such relationships.
The second stage in the system of compulsory jurisdiction, brought about when an application is made to the
Court, provides no reason to disentitle a state from taking advantage of the idea of pre-seisin reciprocity. When
the Court in Nicaragua expressed doubts about the a possibility of pre-seisin reciprocity, it also *318 referred to
a passage from the Right of Passage case, where it had observed that, when a case is submitted to the Court, it
is always possible to ascertain what are, at that moment, the reciprocal obligations of the Parties in accordance
with their respective Declarations. [FN79] This statement does not rule out a concept of pre-seisin reciprocity.
Indeed, it is entirely compatible with such an idea.
When considering the reciprocal obligations of the Parties in accordance with their respective Declarations,
the Court may need to determine whether one of the declarations is still in force (as was the case with
Nicaragua's own declaration). This determination may depend on whether the declaration had been validly terminated or modified prior to the application (as was the case with the United States' declaration). In this context,
the focus should not necessarily be on deciding whether the withdrawal was effective against all states that had
made declarations under article 36(2), but on deciding whether the withdrawal was effective against the opposing state. The answer would depend on a range of factors, some of which might be unique to the respondent
state. These could include circumstances suggesting acquiescence in the termination. There is no obvious reason
for precluding an argument based upon reciprocity, as that existed by virtue of the fact that both states had made
declarations under article 36(2). Such an argument is not dependent upon a party's application to the Court.
D. Summation
To conclude this section it is necessary to summarize the International Court's position on compulsory jurisdiction and to consider the implications for the role of reciprocity. The expansive view of reciprocity adopted
by the Court in Norwegian Loans [FN80] was not explicable in terms of the principle underlying article 36(2) of
the Statute, nor did it comply with the condition referred to in article 36(3). Rather, the decision demonstrated
the existence of a broader requirement of reciprocity, based upon principles of good faith and arising out of the
relationships established by declarations made under article 36(2). In Nicaragua, [FN81] on the other hand, the
Court was more reticent. It refused to apply reciprocity to the formal conditions relating to the creation, duration or extinction of the commitments with respect to the Court's compulsory *319 jurisdiction [FN82] (with
the apparent supposition that this should be read as referring to the declaration as a whole rather than to its several obligations). Moreover, the Court doubted whether reciprocity could apply at the pre-seisin stage to justify
an act that was not permissible to a state under the terms of its own declaration.
Given the prominence accorded to reciprocity in Norwegian Loans, it is difficult to understand the Court's
approach in Nicaragua. There is no obvious reason why reciprocity should not apply to the formal conditions
relating to the existence of a declaration or its component parts. Nor is there any reason for doubting reciprocity's relevance to a pre-seisin situation, even if its applicability can only be tested once an application is
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made to the Court.

In such circumstances, the scope of reciprocity is unlikely to be extensive because the Court has argued that
reciprocity cannot operate in the face of a contrary provision in a declaration. If a state makes a declaration
committing itself to a period of notice before termination, the state should be held to its undertaking. This is a
fortiori so where the state maintains its declaration despite the fact that other states are unwilling to include a
similar promise in their declarations. In other words, it is for a declarant state to decide what conditions it
wishes to impose upon itself and whether to maintain those conditions. In making such decisions, the state concerned is the best judge of its own interests, and the Court should not substitute its judgment in the guise of reciprocity. Only where its declaration fails to address an issue may reciprocity be invoked by the state and applied
by the Court to redress an imbalance.
There are lessons to be learned from the role of reciprocity in a jurisdictional context. Reciprocity is not a
single idea, or, if it is, it has a number of separate manifestations. Some are specific as under article 36, paragraphs 2 and 3 of the Statute of the Court. Others are more general, as in the explanation given above for the
decision in the Norwegian Loans case. [FN83] These examples demonstrate that the principle of reciprocity
may vary with its context. This conclusion is readily transposed to the context of the law of treaties. In some
situations, there may be little scope for reciprocity to augment or balance the parties' relationship. Thus, the
Statute of the Court refers to the means whereby parties might submit cases to the Court. It follows that there is
what Waldock described *320 as a fundamental lack of reciprocity between the positions of States which do
and States which do not make declarations accepting the jurisdiction of the Court under article 36(2). [FN84]
Whereas a state in the former group is committed to its declaration for the time it remains in force, a state in the
latter group can submit a case to the Court at any time by making a declaration and then an application. [FN85]
This lack of reciprocity is built into the system, and it is left to the declarant state to devise its own means of
protection. [FN86] In other words, there is not a sufficiently proximate relationship created by the Statute to
support the application of reciprocity as a remedial factor. On the other hand, between states that have made declarations, the consensual bond is close enough to bring principles of reciprocity into play. In such a case,
where the declaration of one of the parties creates an imbalance in favor of that party, and where there is no contrary indication in the declaration of the other party, reciprocity is available as a means of redressing the imbalance.
In the context of the Statute, therefore, the making of declarations creates a relationship that provides the
basis for reciprocity to operate. In the context of general treaty law, the requirements of good faith between
parties provide a justification for applying principles of reciprocity, provided that a treaty relationship is sufficiently proximate and that the possibility is not excluded by the terms of the treaty. For example, if a treaty includes interrelated obligations, one to be performed by one party in return for performance of another obligation
by the other party, reciprocity would provide a ground for one party to refuse performance in response to a
breach by another party, quite outside the provisions on non-performance contained in the Vienna Convention
on the *321 Law of Treaties. In such circumstances, the closeness of the interrelationship justifies the application of reciprocity.
Reciprocity also has a role to play in relation to reservations to treaties. While the negotiation of multilateral
treaties is a group exercise amongst potential parties, individual states have the final choice of whether or not to
ratify the treaty in question. And while ratification is a unilateral act, the obligations to which it gives rise are
those provided in the treaty regime. However, ratifications subject to reservations create special circumstances.
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The Vienna Convention deals with reservations primarily on a bilateral basis. Individual parties decide
whether to accept or object to a reservation. [FN87] If a state objects to a reservation, it must also decide whether it considers the reserving state to be a party to the treaty. [FN88] The option of refusing to accept the reserving state as a party to the treaty with regard to the objecting state is a drastic step, but it seems to be the only
way to respond to a reservation regarded as incompatible with the object and purpose of the treaty.
Reciprocity was undoubtedly a factor in the drafting of these rules; nevertheless, the rules leave the reserving state in an advantageous position. Under the Convention, a reserving state cannot be made subject to a
treaty provision that its reservation excludes, even if another state objects to the reservation in question. This is
particularly problematic when a reservation is believed to conflict with the object and purpose of the
treaty. Given that other states can accept the reservation as part of the treaty regime, what options remain for an
objecting state that does not wish to refuse to accept the reserving state as part of the regime? A number of such
states have rejected the reservation as invalid and declared the treaty in force between themselves and the reserving state. [FN89] Although this option is not provided for in the Vienna Convention, principles of good faith
and reciprocity would justify such a measure. Ultimately, it may be possible to determine the legality of the reservation through third-party adjudication. In the meantime, objecting states will have preserved their rights
against the reserving state under the original text of the treaty.
*322 II. PROPORTIONALITY IN A REMEDIAL CONTEXT
It is unclear whether proportionality may be regarded as a general principle of international law, but it has an
obvious role in the law of self-defense in both municipal [FN90] and international settings. [FN91] It has also
been used as a basis for the principle of equitable delimitation of contested areas of the continental shelf. [FN92]
As already mentioned, proportionality has developed into a major means of judicial review of governmental
action at both a municipal and an international level. [FN93] The principle of proportionality was well established in German and Swiss law by 1970, [FN94] although it has not been generally accepted in France. [FN95]
It has been articulated as one of the general principles of European Community*323 law governing the activities
of organs of the Community such as the Commission, and of member states exercising a delegated law-making
role. [FN96] The principle may be found both within the legal traditions of those states and within the human
rights instruments to which they have become parties. As the European Court of Justice explained in the Nold
case:
As this Court has already stated, fundamental rights form an integral part of the general principles of
law, the observance of which it ensures.
In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions
common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States.
Similarly, international treaties for the protection of human rights on which the Member-States have
collaborated or of which the are signatories, can supply guidelines which should be followed within the
framework of Community law.
The submissions of the applicant must be examined in the light of these principles. [FN97]
Although it is debatable whether the principle of proportionality can be considered a general principle of
(international) law, the Court of Justice seems to have regarded it as such. [FN98] The principle has also been
adopted by various international administrative *324 tribunals as a criterion for reviewing administrative de-
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cisions terminating the employment of personnel. [FN99]

Even in municipal law, where the punishment is supposed to fit the crime [FN100] or the award of damages
is to correspond to the injury suffered by a plaintiff, proportionality plays a key role. In the international sphere,
where potential responses to a breach of an obligation are rarely institutionalized, proportionality could play a
more significant and obvious role in limiting the scope of self-help. Of course, there are a range of available responses which would not constitute a breach of any obligation owed to the state against which they were taken.
[FN101] Such measures might include ending diplomatic relations, imposing selective trade barriers not contrary to any treaty arrangements between the parties, or curtailing treaty relations in a manner permitted by the
agreements in question. [FN102] In such cases proportionality is irrelevant: the acts are permissible and therefore unregulated by international law.
Although retortion can be in response to an act falling short of a breach of an obligation, [FN103] there is a
danger that a sequence of retaliatory acts may be set in motion: [T]here is no limit in the game of retortions
between States as it could be played ad infinitum. [FN104] In other words, an accumulation of lawful acts is
permissible. It follows that proportionality has no part to play in the *325 process of response selection.
However, there is an obvious danger in the unregulated recourse to what are, basically, unfriendly acts. [FN105]
Once having exhausted the range of retorsive measures, there is the possibility that unlawful responses will follow.
Even if the reactions are limited to purely retorsive acts, their cumulative effect can hardly be conducive to
friendly relations. While the maintenance or promotion of such relations is not required by international law,
[FN106] such an obligation might exist under a treaty of friendship. Specific provisions of such a treaty are
likely to limit the range of legitimate retortions. Moreover, unfriendly acts may be contrary to the object and
purpose of such a treaty and therefore unlawful.
This possibility was considered by the International Court in the Nicaragua case. [FN107] Nicaragua argued
that the various activities planned or carried out by the United States against Nicaragua violated the object and
purpose of the 1956 Treaty of Friendship, Commerce and Navigation. In Nicaragua's view the treaty of friendship imposed on the Parties the obligation to conduct amicable relations with each other. [FN108] Thus, the
Court was asked to rule that
a State which enters into a treaty of friendship binds itself, for so long as the Treaty is in force, to abstain from any act toward the other party which could be classified as an unfriendly act, even if such act is
not in itself the breach of an international obligation. [FN109]
The Court did not think that the existence of such a far-reaching rule is evidenced in the practice of States.
[FN110] In the Court's *326 opinion, there must be a distinction, even in the case of a treaty of friendship,
between the broad category of unfriendly acts, and the narrower category of acts tending to defeat the object and
purpose of the Treaty. [FN111] Within this latter category the Court referred to a number of activities which
were such as to undermine the whole spirit of a bilateral agreement directed to sponsoring friendship between
the two States parties to it and which were patently illegal under general international law, such as direct attacks on ports and oil installations, and the mining of Nicaraguan ports. [FN112] While a variety of acts of economic pressure against Nicaragua were less flagrantly in contradiction with the purpose of the Treaty, [FN113]
the Court still regarded some of the acts as breaches of the treaty obligation invoked by Nicaragua. The Court
explained:
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A State is not bound to continue particular trade relations longer than it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation; but where there exists such a commitment, of the kind implied in a treaty of friendship and commerce, such an abrupt act of termination of
commercial intercourse as the general trade embargo of 1 May 1985 will normally constitute a violation
of the obligation not to defeat the object and purpose of the treaty. The 90 per cent cut in the sugar import
quota of 23 September 1983 does not on the other hand seem to the Court to go so far as to constitute an
act calculated to defeat the object and purpose of the Treaty. The cessation of economic aid, the giving of
which is more of a unilateral and voluntary nature, could be regarded as such a violation only in exceptional circumstances. [FN114]
The Court's approach contains an implicit reference to proportionality. Conduct which does not constitute a
breach of any specific provision of such a treaty may nevertheless amount to a breach of a general obligation not
to derogate from the treaty's object and purpose. [FN115] However, the Court's judgment does not seem to acknowledge the possibility that an accumulation of less serious acts might amount to a derogation from the object
and purpose of the treaty, even though the conduct and its consequences *327 are serious. The Court rejected the
idea that the significant cut in the sugar quota, in conjunction with the other measures, constituted a breach of
U.S. obligations. Although it is possible to envisage a situation in which a series of steps might amount to a termination of commercial intercourse contrary to the object and purpose of the treaty, it may be that the tenor of
the Nicaragua judgement is against this possibility. Even the Court's characterization of the trade embargo as an
act contrary to the obligation hinged upon the embargo's abruptness. Therefore, an escalating series of measures,
though producing the same result over time, might not be regarded as a breach.
III. RECIPROCITY, PROPORTIONALITY, AND THE VIENNA CONVENTION
Reciprocity and proportionality are implicit concerns during treaty negotiations, though the negotiator's
primary focus will be on the specific obligations to be created by the instrument and the balance of rights and
obligations within the ultimate treaty structure. After a treaty is finalized, however, concepts of reciprocity and
proportionality can become explicitly relevant. Two areas of treaty law are particularly worth examining to determine whether the Vienna Convention on the Law of Treaties has adequately considered these concepts. Reciprocity is most important with respect to the effect of reservations; proportionality is especially relevant to remedies for the breach of treaty obligations.
A. Reciprocity and Reservations
Under the influence of a notion that might be termed pure reciprocity, it was originally believed that reservations had to be accepted by all treaty parties before the reserving state could become a party to the treaty. The
inability of such a rule to accommodate a multilateral conventional regime, a regime drawn up by a series of majority votes at an international conference and aimed at achieving universality of membership, was recognized
by the International Court in the Reservations case, where the need for more flexible rules was acknowledged.
[FN116] The present law, developed by the International Law Commission from the Court's opinion in Reservations, may be found in articles 19 through 23 of the Vienna Convention. Although these provisions appear to
preserve the *328 principle of reciprocity, on closer examination, they give an unacceptable advantage to a reserving state. This lack of reciprocity is most evident when considering both the permissibility of reservations
and the options available to a state regarding a reservation as unacceptable.
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1. The Permissibility of Reservations

Unlike the issue of whether a treaty becomes binding on signature or on ratification, where neither the International Law Commission nor the Vienna Conference identified a primary or presumptive rule, the Commission
recommended, [FN117] and the Vienna Conference adopted, the primary rule for reservations in the case of
multilateral treaties: [FN118] a state may formulate a reservation unless there are grounds for excluding this
rule's operation. [FN119] For instance, a state cannot make a reservation at all if an express provision in the
treaty prohibits reservations. [FN120] Also, a reservation cannot be made if the treaty provides that only specified reservations, which do not include the reservation in question, may be made. [FN121]
The practice of specifying which treaty provisions cannot be subject to reservations accords with the International Court's view that reservations of a minor nature can be valid, while those of a major nature must be regarded as ineffective. [FN122] Reservations can be of a major nature for two different reasons. They may relate
to fundamental provisions of the treaty, or they may be so general in nature that they are incompatible with the
spirit of the treaty. The Vienna Convention dealt with the former in the way indicated above, and also accepted
the latter, providing that in cases where a treaty makes no provision regarding reservations, a state may formulate a reservation unless it is incompatible with the object and purpose of the treaty. [FN123]
At a superficial level, these provisions provide a balance between the interests of both reserving and reacting
states. Yet, *329 the consequences of an impermissible reservation are unclear. Article 19 suggests that such a
reservation is void. This inference, however, disregards two issues: It fails to distinguish between the reasons for
impermissibility referred to in article 19, and it does not consider the effect of the reactions of other parties to
the reservation.
On its face, article 19 suggests that the three reasons for impermissibility are of equal value and effect.
[FN124] Although it may be a straightforward exercise to determine if a reservation violates a treaty's prohibition against reservations, deciding whether a reservation violates the object and purpose of a treaty can be a far
more subjective undertaking. In the Reservations case, the International Court acknowledged the existence of a
judgmental role for parties reacting to a reservation that was already subjective in nature, entitling each state to
assess whether from its own standpoint the reservation was compatible with the object and purpose of the
treaty. [FN125] However, the Court reverted to an objective test when it stated that
a State which has made and maintained a reservation which has been objected to by one or more of
the parties to the Convention but not by others, can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention. [FN126]
In practice, objections to a reservation as contrary to the object and purpose of the treaty are unlikely to be
definitively resolved in the absence of a regime of compulsory adjudication. Thus, a state making an objectionable reservation will be regarded as a party to the treaty by some states but not by others. [FN127] In fact, this
essentially*330 subjective result is implicit in subparagraphs (a) and (c) of article 20(4) of the Vienna Convention, which provide respectively that, unless the treaty stipulates otherwise, acceptance by another contracting
State of a reservation constitutes the reserving State a party to the treaty in relation to that other State, and that
an act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as
at least one other contracting State has accepted the reservation. Thus, because article 20(4) does not apply
where a treaty stipulates otherwise, it will be irrelevant to a situation where a reservation conflicts with article
19(a) and (b), but it can apply to a situation where a reservation may be incompatible with the object and pur-
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pose of the treaty. In such a situation, individual parties decide for themselves whether that degree of incompatibility exists. [FN128]
In addition to leaving the status of an impermissible reservation uncertain, the Vienna Convention does not
determine whether an *331 impermissible reservation taints the entire act of acceptance of the treaty. The discussion above suggests that the answer may depend primarily upon the reaction of other participants in the treaty
regime. For example, where a reservation is treated as incompatible with the object and purpose of the treaty, the
reacting state may declare under article 20(4)(b) that the reserving state is not a party to the treaty, i.e., that the
entire act of acceptance is ineffective. However, absent a contrary judicial determination, other participants may
treat the reserving state as a party to the treaty, even if they object to the reservation in question on the ground of
incompatibility. State practice appears to support the possibility of acts of acceptance being regarded as effective
notwithstanding the invalidity of a reservation contained therein. [FN129] Indeed, reacting states on occasion
have denied the operation of significant parts of a treaty, while accepting that the treaty is otherwise in force
between themselves and the reserving state. [FN130]
Even given the uncertain status of reservations alleged to be in breach of the object and purpose of a treaty, a
degree of reciprocity is preserved because a reacting state can object to the reservation and even declare that the
treaty in question is not in force between itself and the objecting state. [FN131] However, the onus is upon the
state concerned to make an objection, [FN132] and to declare that, as a *332 result, it does not regard the treaty
as being in force between it and the reserving state. [FN133]
The above results are equally attributable to the proposition that a state cannot be bound by a reservation to
which it has not consented. However, they still reveal the disadvantageous position of a state confronted by another state's reservation. There appears to be no way a state can receive the benefits of the original treaty in its
relations with the reserving state; its objection to the reservation cannot reinstate the provision covered by the
reservation. But what if the state regards the reservation as impermissibly at variance with the object and purpose of the treaty? Can it maintain that the treaty as a whole is in force because such a reservation is invalid? Principles of good faith and reciprocity have an obvious role to play in answering this question.
2. The Position of a Reacting State
A lack of reciprocity is apparent in the position of a state reacting to a permissible reservation. Initially, it
seems that a state accepting the reservation is protected by article 21(1), which appears to preserve the notion of
reciprocity:
A reservation established with regard to another party . . .
(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to
which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations with the reserving
State. [FN134]
There are, however, latent limitations upon the scope of the principle of reciprocity. [FN135] While most
treaty relationships create mutual rights and obligations between the parties to which the principle of reciprocity
is readily applicable, it is possible to envisage*333 treaty provisions imposing particular obligations on one
party or group of parties, so that there can be no reciprocity with regard to those obligations. If a treaty were to
impose one obligation on state A, or states A, B, and C, but a different kind of obligation upon parties D and E,
a reservation by a state in the former group could modify the treaty obligation without enabling states in the lat-
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ter group to obtain any reciprocal advantage from the reservation under article 21(1)(b).
Reservations would also not operate reciprocally under a human rights convention where the obligations are
owed to individual persons protected by the convention. Parties to the convention would not be able to take advantage of such a reservation because they would not be released from obligations to persons subject to their
own jurisdiction. Such a reservation could only operate reciprocally in the context of dispute settlement procedures granting states a right of complaint against the other states parties. In these circumstances, a reservation by
state A limiting the scope of its obligation to submit to settlement procedures could be relied upon by state B if
state A were to make a complaint against B.
Other factors can prevent the reciprocal operation of a reservation. The nature or wording of the reservation
might be such as to exclude its general availability. Logically, a reservation claiming a special right for the reserving state which is peculiarly applicable to the reserving state cannot operate in favor of other parties. For
example, Israel made a reservation to three of the four 1949 Geneva Conventions, stipulating that Israel will
use as the distinctive sign of the medical services of its armed forces and their equipment (including hospital
ships) the Red Shield of David and not any of the signs permitted under the provisions of those Conventions.
[FN136] Acceptance of such a reservation would hardly entitle other parties to the Conventions to depart from
the requirements relating to distinctive signs, even in their dealings with Israel, without express reservations of
their own.
Parties to a treaty, or even the treaty itself, can sometimes make the acceptance of obligations under the
treaty expressly subject to a condition of reciprocity. As a result, a party may be able to transpose the terms of a
reservation exclusively benefitting the reserving state to its own advantage. The Norwegian Loans case *334
may be explained in this way. [FN137] The French declaration accepting the jurisdiction of the International
Court of Justice contained a reservation excluding from the Court's jurisdiction differences 'relating to matters
which are essentially within the national jurisdiction as understood by the Government of the French Republic.
[FN138] The Court held that Norway was entitled to rely on this reservation and to claim that the matter in dispute fell within Norway's national jurisdiction. [FN139] The Court justified this use of the French declaration by
reference to the fact that both parties had made their acceptance of jurisdiction subject to the condition of reciprocity as provided for in article 36(3) of the Court's Statute. [FN140] As noted earlier, this is a superficial explanation of the decision. [FN141] Given the origins of both article 36(2) and article 36(3), a broader concept of
reciprocity is needed to justify the outcome, and the decision therefore demonstrates the significance of that
broader concept of reciprocity, even though its role was masked by the references to article 36(3).
Even if states are not likely to object to a particular reservation, the reserving state is in an advantageous position. Because of the nature of the treaty obligation, or because of the way in which a reservation is framed, the
operation of the principle of reciprocity will be limited. Where there are objections to a reservation, the reserving state's position of advantage is even more pronounced: If the reservation excludes the operation of a
treaty obligation in whole or in part, an objection cannot revive that obligation against the reserving state.
Consider, for example, the reservations to the Genocide Convention, which prompted the General Assembly
to request the International Court for an advisory opinion. The Soviet Union and a number of other states excluded the operation of a provision bestowing jurisdiction on the Court in the case of a dispute over the interpretation of the Convention. [FN142] Under the rules since established by the Vienna Convention, no form of
objection to *335 such a reservation could legally reinstate jurisdiction over the reserving state. Indeed, there
would be little difference between the position of an accepting state and an objecting state. [FN143] The only
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difference would arise if the latter held the convention not to be in force between the two states.
The disadvantageous position of the reacting state can also be seen when a reservation purports to modify,
rather than exclude, a treaty obligation to the benefit of the reserving state. Although an objection is essential to
protect the reacting state from the effects of the modification, the obligation in the treaty cannot be restored as
against the reserving state. In the Continental Shelf arbitration between the United Kingdom and France,
[FN144] the latter had made a number of declarations relating to the operation of article 6 of the 1958 Convention on the Continental Shelf. [FN145] The tribunal accepted the French view that these declarations constituted
reservations rather than interpretive statements. [FN146] It refused to accept that, because of the United Kingdom's objections to the French reservations, the reservations were not opposable to it and . . . [that therefore]
Article 6 applies without any modification. [FN147] The Court reasoned that accepting this contention would
allow the rejection unilaterally to set aside express conditions placed by the French Republic on its consent to be
bound by the Article. [FN148] The tribunal also refused to suspend operation of the entire article, as the French
had urged:
Just as the effect of the French reservations is to prevent the United Kingdom from invoking the provisions of Article 6 except on the basis of the conditions stated in the reservations, so the effect of their
rejection is to prevent the French Republic from imposing the reservations *336 on the United Kingdom
for the purposes of invoking against it as binding a delimitation made on the basis of the conditions contained in the reservations. Thus, the combined effect of the French reservations and their rejection by the
United Kingdom is neither to render article 6 inapplicable in toto, as the French Republic contends, nor to
render it applicable in toto, as the United Kingdom primarily contends. It is to render the Article inapplicable as between the two countries to the extent, but only to the extent, of the reservations; and this is precisely the effect envisaged in such cases by Article 21, paragraph 3 of the Vienna Convention on the Law
of Treaties and the effect indicated by the principle of mutuality of consent. [FN149]
The practical effect of this principle depends both on the scope of the reservation and the situation to which
the reservation is applied. In the Continental Shelf arbitration, the conditions imposed by France on the application of article 6 related to the very areas in dispute. The United Kingdom's rejection of those reservations
rendered article 6 inapplicable to the situation. The tribunal was obliged therefore to seek an answer from customary international law. However, if article 6 had been a jurisdictional clause for the settlement of disputes,
the French reservations excluding those areas from the ambit of the clause would have rendered the United
Kingdom's reaction nugatory.
It creates a problem for a reacting state that its objection to a reservation cannot restore the effect of the part
of the treaty to which the reservation applies. For an objecting state, the only potential remedy in the Vienna
Convention, referred to in article 20(4)(c), is to declare that the treaty has not come into force between the two
states. States have on occasion taken this drastic step. [FN150] The objecting state may also be able to rely on
the contention that, although excluded by the reservation, the conventional *337 rule is nevertheless applicable
as representing customary international law. [FN151] Indeed, some states have made specific reference to customary international law as a reason for regarding a treaty provision as applicable notwithstanding a reservation.
This occurred under the 1961 Convention on Diplomatic Relations. According to article 27, paragraphs 1 and 2,
a receiving state shall permit and protect free communication by a diplomatic mission, the official correspondence of which shall be inviolable. [FN152] Hence, as paragraph 3 proclaims, the diplomatic bag shall not be
opened or detained. This last requirement provoked various reservations by Arab States, [FN153] including
one by Bahrain claiming a right to open the diplomatic bag if there are serious grounds for presuming that it
contains articles the import or export of which is prohibited by law. [FN154] Although a number of parties de-
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clared the various reservations invalid, [FN155] a few responded to the reservations by asserting that the rule set
out in article 27(3) remained binding under customary international law. [FN156]
Typically, a state wishing to preserve the validity of a treaty provision excluded by a reservation will attack
the validity and effectiveness of the reservation in its objection. A variety of formulae have been employed with
this objective in mind. Some states have chosen to record their view that they do not regard or recognize as
valid the reservation in question. [FN157] In some cases, this has been augmented by a reference to the reservation as incompatible with the objects and purposes of the particularconvention. [FN158] *338 Occasionally
the latter formulation, or something akin to it, is used in conjunction with a reference to the impermissibility of
the reservation. [FN159]
Often an objecting state will declare that it does not regard a statement as modifying any rights or obligations under the provision to which it relates. The intention appears to be both to express the view that the declaration is an interpretive statement and not a reservation, and to minimize the declaration's effect, whatever its
status, by denying that it can modify the provision in question. In isolated instances, a reacting state has invoked
such a formula against a declaration it has designated as a reservation. [FN160] It may be that the state concerned is implying that the reservation is no more than an interpretive statement. In any case, there can be no
doubt that the reserving state intends to render the reservation or statement ineffective as a means of modifying
the treaty provision. Objections asserting both that the reacting state does not accept a reservation as valid and
that the relevant provisions are or remain in force between the states concerned have the same purpose. [FN161]
3. Summation
It is no easy task to assess how successful these attempts might be in preventing a reserving state from taking advantage of the beneficial position apparently accorded to it by the Vienna Convention. As previously explained, although article 19(c) prescribes that a state may not formulate a reservation incompatible with the object and purpose of a treaty, the Convention gives no guidance *339 as to the consequences of making such a reservation. [FN162] Moreover, the uncertainty is compounded by the subjective means established by the Convention for determining whether the requirement has been satisfied. This result has two causes. First, the objectivity that the Convention seeks to impose for dealing with the invalidity, termination, and suspension of
treaties (i.e., the settlement procedures in part V) has no counterpart in the section on reservations. Second, under article 20(4), subparagraphs (a) and (c), the general principle of objectivity normally applicable to treaties
has in practice been reduced or even eradicated in relation to reservations. [FN163]
This inbuilt subjectivity, and also the fact that a failure to object will in time operate as an acceptance of a
reservation, creates, prima facie, a situation covered by article 21, which largely assimilates the positions of an
accepting and an objecting state as far as the effects of a reservation are concerned. Indeed, considering that
even in cases of significant opposition to a reservation by far the majority of parties have not raised any objection, the Vienna Convention seems to bestow both validity and effectiveness upon the reservation in question.
[FN164]
This conclusion should not be accepted too readily. The Convention does not bestow a majority view upon
all of the parties. [FN165] If a failure to object does signify acceptance of the validity of a reservation, [FN166]
this principle can only operate to the disadvantage *340 of a state that does not object. It cannot affect an objector, and certainly not an objector challenging the validity of the reservation. Despite the inadequacies of the Convention's reservations provisions, article 19(c) must support the legitimacy of this view. In the absence of any
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mention of the consequences of a breach in article 19, there is no reason why a state that wishes to deny the
validity of a reservation is limited to rejecting the reserving state's act of acceptance of the treaty. Admittedly,
under the Convention, separation of a clause in an instrument, enabling the remainder of the instrument to operate unaffected, is restricted to grounds for invalidating, terminating, withdrawing from or suspending the operation of a treaty. [FN167] Nevertheless, there are reasons for supposing that separation may be more widely
available, and that it should be applicable to reservations that might otherwise taint the act of acceptance of a
treaty.
Article 44(3)(b) stipulates that separation (denunciation or suspension by a party or parties of particular
clauses in a treaty) is possible solely with respect to clauses the acceptance of which was not an essential basis
of the consent of the other party or parties to be bound by the treaty as a whole. [FN168] This principle owes
its origins to a municipal law analogy. Under Anglo-Australian law, a vague or unclear clause in a contract may
be excised and the rest of the contract enforced, subject to the limitation that the excised portion should not constitute a substantial element of the consideration for the promise. [FN169] In Norwegian Loans, [FN170] Judge
Lauterpacht adopted this approach to determine the consequence of the perceived invalidity of the French reservation in its declaration accepting the jurisdiction of the Court. He argued that it is legitimate -- and perhaps
obligatory -- to sever an invalid condition from the rest of the instrument and to treat the latter as valid provided
having regard to the intention of the parties and the nature of the instrument the condition in question does not
constitute an essential part of the instrument. [FN171] The Judge reasoned that, given the significance of the reservation to the declarant state, no severance was permissible. [FN172]
*341 The municipal analogy employed by the Judge was not the most appropriate to the situation confronting the Court. For example, in a contract for the sale of a yacht by A to B, if the payment by B was inadequately
expressed (e.g., $10,000 plus my favorite racer, when it was impossible to identify which horse, car, or even
bicycle was intended by these words), a court would not impose upon A a duty to receive only the $10,000 by
excising the remainder of the payment. More pertinent to the case before the Court would be a situation where A
was selling a business to B for a stipulated sum, and A also agreed in a vague or unclear clause not to compete
with B by setting up a rival business. The contract would be enforceable for the stipulated sum; the only issue
would be whether the restraint on trade competition was, or by severance could be, rendered legal and effective.
[FN173] In other words, severance provides a means of rendering enforceable part of a clause which would otherwise be discarded as illegal. In the above example, the importance of the restraint to the overall consideration
would not be a crucial factor.
The Lauterpacht approach to automatic reservations was not only based upon a false premise; it also overemphasized the importance to the reserving state of its self-judging reservation. More importance should have
been attributed to the primary intention of the declarant state -- to make a valid and effective acceptance of the
Court's jurisdiction. If the reservation was held invalid for conflicting with the Court's power to determine its
own jurisdiction under article 36(6) of its Statute, the excision of the reservation, in whole or in part, would have
been an appropriate remedy. More generally, if it is not possible to interpret a reservation in an act of acceptance as compatible with the object and purpose of the treaty, the reservation should be regarded as severable in
order to preserve the effectiveness of the act of acceptance. In effect, this was the goal of the objecting parties
who asserted that particular reservations were invalid.
In this light, in the absence of impartial adjudication of a dispute, the ultimate judgment on the compatibility
and effectiveness of a reservation rests with each party individually. Under article 20(4)(a) and (c) of the Convention, if some parties have accepted a potentially invalid reservation, that reservation and act of acceptance
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will take effect. This follows from the International Law Commission's view that compatibility with a treaty's
object and *342 purpose is essentially subjective and unsuitable for use as a general test for determining whether a reserving State is or is not entitled to be considered a party to a multilateral treaty; the Commission preferred instead the purely objective criterion of each State's consent or objection to the particular reservation.
[FN174] An objecting state can still preserve the treaty nexus with a reserving state in accordance with article
20(4)(b) and impose sanctions for a reservation believed to be inconsistent with the requirements of article
19(c). This approach restores a degree of reciprocity to a situation in which an objecting state would otherwise
be left in a position of significant disadvantage.
B. Proportionality in Relation to the Termination or Suspension of Treaties for Breach
The principle of reciprocity in the context of treaty obligations has a counterpart: the principle of proportionality in the context of remedies. By this principle, a remedy must have some degree of equivalence with the alleged breach. [FN175] Moreover, if an aggrieved party wishes to terminate or suspend a treaty, its right to do so
is dependent upon the materiality of the breach as defined by the Vienna Convention's rules on proportional responses. [FN176] In its 1966 report on the law of treaties, the International Law Commission was unanimous
that the right to terminate or suspend must be limited to cases where the breach is of a serious character.
[FN177]
Despite this assertion, article 60 of the Convention is defective in two principal ways and may not reflect the
actual state of international law. First, article 60 bestows a power upon the innocent party to terminate or suspend a treaty, in whole or in part, in response to a breach. In other words, it appears that proportionality plays
no role in limiting this act of discretion. Second, although the International Law Commission referred to the
need to limit the right of termination or suspension to breaches of a serious character, article 60 defines materiality not in terms of the degree of *343 breach but instead in terms of the importance of the provision broken.
Thus, a minor breach of an important provision can give rise to the right of termination, whereas a serious
breach of a provision not essential to the accomplishment of the object and purpose of the treaty does not do so.
This represents a further departure from the principle of proportionality. Third, article 60 equates termination of
a treaty with its suspension. However, in applying the principle of proportionality, there should be, at the very
least, a difference between the two terms. A suspension of rights suggests the willingness of the party concerned to resume later cooperation, a possibility inconsistent with an act of termination. Despite this consideration, the Convention limits suspension, as well as termination, to breaches that are material.
1. The Right to Terminate or Suspend in Whole or in Part
For a number of reasons, an absolute discretion, vested in a state reacting to a breach, to select either a total
or a partial termination or suspension seems difficult to justify. At one time, it may have been that any breach
gave rise to such a right. [FN178] Various factors, however, have subsequently limited this attribute of state sovereignty. First, multilateral conventions did not fit easily into the category of treaties giving rise to a right of termination by one party for breach by another. Such conventions, typically peace settlements involving Europe's
major powers, were policed by the powers as a group. [FN179] Today, this community response is usually *344
channelled through the United Nations and its principal political organs. However, the proliferation of multilateral conventions has also led to the recognition that the parties to a particular treaty constitute a community
able to respond to a material breach in accordance with article 60(2)(a) of the Vienna Convention. [FN180]
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The translation of a serious or fundamental breach into a material breach will be examined in more detail
later. [FN181] For the present all that need be said is that materiality is defined in article 60(3) by reference to
the violation of a provision essential to the accomplishment of the object or purpose of the treaty. [FN182]
While a bilateral treaty may have a provision essential to a single object and purpose, a multilateral treaty may
very well have several purposes, with a corresponding increase in the number of essential provisions. There
have been conventions with a number of distinct regimes contained within them, the most striking example being the Treaty of Versailles, which incorporated the Covenant of the League of Nations, the Constitution of the
International Labour Organisation, and an international regime for German waterways, as well as dealing with
matters relating to the peace settlement in Europe and beyond. [FN183] At first glance, the discretion to suspend
(or terminate) a treaty relationship enables an affected state to apply what it regards as the appropriate reaction
to all or part of the treaty in question. Such a rule would represent a major departure from the principle of proportionality. In addition, it is doubtful whether it is politically acceptable that a treaty regime might be undermined in this fashion. Thus, the existence of such a rule must be regarded with skepticism.
Assuming that there has been a material breach of such a treaty, the Vienna Convention does not necessarily
provide a reasonable limit upon the discretion. The obvious provision dealing with *345 restricting the termination or suspension to part of the treaty is article 44, paragraph 3:
If the ground relates solely to particular clauses, it may be invoked only with respect to those clauses
where:
(a) the said clauses are separable from the remainder of the treaty with regard to their application;
(b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an
essential basis of the consent of the other party or parties to be bound by the treaty as a whole; and
(c) continued performance of the remainder of the treaty would not be unjust. [FN184]
However, it is unclear whether this provision can curtail the operation of article 60.
First, paragraph 2 of article 44 suggests that paragraph 3 is not relevant to cases of material breach: A
ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty recognised in the
present Convention may be invoked only with respect to the whole treaty except as provided in the following
paragraphs or in article 60. [FN185] If a choice could be made between article 60 and article 44(3), there is
some reason for wishing to restrict the former by making it subject to the latter. However, article 44(3) and article 60 are, on the wording of article 44(2), equal exceptions. Thus, article 44(3) has no priority over article 60.
Moreover, on its wording article 44(3) would have a limiting effect on the responses open to a state reacting to a
material breach. Article 60(3) defines such a breach as the violation of a provision essential to the accomplishment of the object or purpose of the treaty. [FN186] In contrast, article 44(3) operates only with regard to
clauses that are not an essential basis of the consent of the other party or parties to be bound by the treaty as a
whole. [FN187] Although the wording is different, it seems unlikely that a material breach would fall within the
range of provisions to which separability applies.
At the Vienna Conference, the United Kingdom attempted to delete the exception of article 60 to article
44(2) to bring the right to terminate or suspend part of a treaty under greater control. For *346 this purpose, the
wording of article 44(3) was unduly restrictive and possibly valueless. It is hardly surprising, therefore, that the
idea was rejected. Waldock pointed out that such a change would have the awkward result that, when a state
committed a breach of one article, the other party might be precluded from suspending the operation even of that
article, because it did not fall within the provisions of paragraph 3. [FN188]
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In the circumstances it might be as well to abandon the search and to allow the Convention to operate in favor of the reacting state. There are two good reasons for taking the discussion further. The second reason, to
which we will return shortly, is the matter of proportionality; the first, as Waldock seemed to suggest [FN189]
and perhaps even favor, [FN190] is a limit upon the right of termination or suspension in light of the multifaceted nature of many international treaties. Admittedly, the case law dealing with the division of such treaties into parts to allow for separate treatment has related only to the interpretation of the treaty in question, and, for the
most part, the case law has dealt with discrete documents within the single treaty framework. [FN191] The major exception is the Diversion of *347 Water from the Meuse [FN192] case, which concerned the Treaty of 1863
between Belgium and the Netherlands, a treaty dealing with the supply of water from the river to various canals
below Maestricht. In its interpretation, the Permanent Court maintained that the Treaty formed a complete
whole, the different provisions of which cannot be dissociated from the others and considered apart by themselves. [FN193] However, in his separate opinion, Judge Altamira suggested that a different approach was
available, and that it might be necessary for other purposes. He accepted that the Treaty constituted a well constructed and complete system. [FN194] Nevertheless, it was
possible to discern three groups of provisions: one comprising Articles I, II, III, IV, V, VI, VII, VIII
and XI, which deal with the feeding of and navigation upon certain canals referred to in Article I; another
comprising Articles X and XIII, which relate to the carrying out of works made necessary by the provisions of the first group; and a third comprising Articles IX and XII, which concern navigation on the
Meuse at different points. [FN195]
The judge employed this taxonomy to relate the performance of individual obligations primarily to the relevant part of the Treaty:
First of all, I would say that, in my view, every one of the obligations, whether common to the two contracting Parties or peculiar to one of them, contained in the Treaty, is essential in respect of the type of interests to
which it relates; but it follows that none of them takes precedence over the others and still less can render them
superfluous. On the contrary, each article of the Treaty requires the precise fulfillment of that part of the agreement between the contracting States which it represents; the interdependence which may exist between that part
and the provisions of other articles (e.g., art. IV and arts. III, V, and XI) merely places conditions or limits upon
the exercise of each right or the fulfillment of each obligation. [FN196]
*348 Although there is some support for the divisibility of treaties, and a real need for the application of this
device in the context of the remedies for a material breach, problems arise from the definition of separability in
article 44(3). This in turn stems from Judge Lauterpacht's Norwegian Loans opinion espousing the severability
of treaty provisions by virtue of general principles of law as developed in municipal law. [FN197] As previously mentioned, the analogy would be correct under common law contract principles regarding enforcement of
a contract part of which is void for uncertainty. [FN198] However, a better analogy can be made between a
possibly invalid reservation in a declaration accepting the jurisdiction of the International Court and a term in a
contract imposing a restraint of trade, which may be void in whole or in part. In such a contract, the courts in
England and Australia are influenced primarily by the possibility of deleting particular words to provide a formula which may be reconciled with the parties' intentions. [FN199]
The doctrine of severability in a contractual setting may have some relevance to the situation in Norwegian
Loans, but the doctrine should not be applied in the same way to the consequences of a breach of a treaty. In the
context of a breach, there is something to be said for promoting the continued operation of at least part of the
treaty. This is the philosophy behind Waldock's Second Report and its extension of the severability provision to
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cases of material breach. [FN200] Moreover, this approach was supported by Judge Lauterpacht*349 in the
Hearings of Petitioners case. [FN201] Lauterpacht contrasted ordinary treaties with regimes like the mandate
system which, although constituting a unified whole, could still be subject to the severability principle:
It is instructive in this connection that with regard to general texts of a law-making character or those
providing for an international regime or administration the principle of separability of their provisions with a
view to ensuring the continuous operation of the treaty as a whole has been increasingly recognized by international practice. The treaty as a whole does not terminate as the result of a breach of an individual
clause. Neither is it necessarily rendered impotent and inoperative as the result of the action or inaction of one
of the parties. It continues in being subject to adaptation to circumstances which have arisen. [FN202]
While the judge was using separability in a very special sense, [FN203] he nevertheless was relying upon it
to excise elements of the supervisory regime of the League of Nations, which could not be carried out by the
United Nations, while preserving the substance of the League of Nations regime. There is every reason, therefore, for seeking a mechanism to restrict the power of a non-defaulting party to terminate or suspend the whole
of a treaty with respect to *350 a breach that does not impinge upon the performance of the treaty as a whole.
2. The Scope of Materiality
As noted earlier, despite its support for the principle that the right to terminate or suspend must be limited
to cases where the breach is of a serious character, [FN204] the International Law Commission opted for a formula that tied a material breach to either a repudiation of a treaty not sanctioned by the other articles of the Convention or a violation of a provision essential to the accomplishment of the object or purpose of the treaty.
[FN205] This is perhaps more surprising because in the earlier report of 1963, the second part of the definition
of a material breach was specifically based on a breach so substantial as to be tantamount to setting aside any
provision of the importance specified. [FN206] Thus, although the 1963 version did incorporate proportionality,
it did not go so far as to provide for the possibility of a substantial breach of a less significant provision. The
1966 version, adopted in the final convention, departed further from the principle. Not only did it not cover major breaches of minor terms, it included as a material breach a relatively minor breach of a major term.
Article 60(3)(b) gives rise to the following question: Did the Commission and the states accepting the final
version of the Convention's text intend that the remedies of partial or total termination or suspension be widely
available for breaches of important provisions; or was the intent to limit the rights available under article 60 almost to the vanishing point? Focusing on the breach favors the first possibility; stressing the object or purpose
aspect, suggests the second.
*351 In the latter context there is a real and obvious problem. Article 60(3)(b) specifies the object or purpose of the treaty, suggesting that a material breach can only occur if such a concept can be identified. For example, under the Treaty of Versailles it would only be possible to identify an object or purpose at such a broad
level of generality as to make it virtually impossible for any provision to meet the test in article 60(3)(b). Alternatively, such an instrument would be regarded as having various objects or purposes relating principally to constituent parts of the Treaty. To support this reading, either article 60(3)(b) would have to be interpreted as if it
read one of the principal objects or purposes (so as not to include any object or purpose the parties may have
had in mind), [FN207] or the instrument would have to be regarded as a series of separate treaties.
Identifying a single object or purpose of a multifaceted instrument will not always be an option. For ex-
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ample, the United Nations Charter may have as its cardinal purpose the maintenance of international peace and
security as set out in article 1(1), but it also has a range of other purposes expressed in article 1, paragraphs 2, 3,
and 4. [FN208] Even in a treaty of more limited ambit, different purposes may be ascribed to different aspects of
the obligations*352 undertaken. In Diversion of Water from the Meuse, [FN209] Judge Altamira noted that different articles of the Treaty between Belgium and the Netherlands had different objectives. [FN210] Although
he did not link specific articles to particular objects or purposes, he must have intended this result:
[E]ach article of the Treaty requires the precise fulfilment of that part of the agreement between the
contracting States which it represents; the interdependence which may exist between that part and the provisions of other articles . . . merely places conditions or limits upon the exercise of each right or the fulfilment of each obligation; but, subject to these conditions or limits, where they exist, the provisions of each
article remain intact and nothing should prevent their application. For otherwise the Treaty would cease
to be a harmonious whole and would fail to fulfil one or more of its objects instead of serving them all in
accordance with the plan jointly adopted by the Parties. [FN211]
This should not be regarded as an eccentric view. In the same case, Judge Anzilotti opened with his familiar
theme: In interpreting a treaty, it is always dangerous to be guided by the literal sense of the words before one
is clear as to the object and intent of the Treaty. [FN212] He went on to describe two purposes behind the 1863
Treaty. First, the Treaty was based . . . on the fundamental principle that a certain quantity of water, and no
more, will be taken from the Meuse. [FN213] Second, the Treaty was to institute a regime on the Meuse, by
means of a programme of works that would maintain and improve the navigability of that river in spite of the relatively large quantity of water which it was proposed to withdraw from it. [FN214]
Under article 60(3)(b) it may have been possible to determine one object or purpose that combined both the
withdrawing of *353 water and the improvement of navigability. Thus, a breach of any of the principal provisions relating to either the extraction of water or the necessary construction works would have been material. On
this interpretation, the possibilities for termination for breach are increased. On the other hand, in the process of
defining a sole object and purpose of a multifaceted treaty, the degree of abstraction in the definition will also
increase. Ultimately, the right of termination may be lost because no single provision would be essential to the
achievement of the treaty's object and purpose.
To avoid this dilemma, article 60(3)(b) might be regarded as applying to the principal object or purpose. There are practical difficulties, however, with establishing a hierarchy of objects or purposes, apart from
the artificiality of the process (individual parties may have quite different objectives in mind or at least different
priorities). Some objects or purposes would be demoted to a second-class status. Thus, in the Meuse case, if
one accepts the Anzilotti view that the fundamental principle was a limit on the quantity of water to be withdrawn from the river, the program of works to improve the future navigability of the river would have been
downgraded to a secondary purpose. Hence, a slight breach of a provision relating to water quantities would
have been material, whereas a serious breach of a term governing the construction programme would not have
been.
If materiality were equivalent to proportionality this difficulty could be circumvented. A treaty could have
several significant purposes, and a breach sufficiently inimical to any of them would be material, but only with
respect to that particular object and purpose. Note that the International Law Commission did regard the object
or purpose as meaning any object or purpose. [FN215] Unfortunately, the Commission gave no explanation
for this equivalence of the and any, and the Commission's understanding of the language may not have been
shared by at least some delegations to the Vienna Conference. [FN216]
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*354 With regard to the second proposition, if a broader meaning of object or purpose were accepted,
materiality would have a second task to perform, namely that of limiting termination or suspension to the relevant parts of the treaty. But if materiality were the equivalent of proportionality, or, indeed, if materiality were an
expression of customary international law, which requires a degree of proportionality between the reaction and
the wrongful act in question, would article 60(3) not have to be worded differently? Curiously enough, the answer seems to be both yes and no.
The Tacna-Arica [FN217] case was the principal international arbitration dealing with the relevant issues
prior to the Vienna Convention. The International Law Commission's 1966 Report provides an interesting description of the case:
There Peru contended that by preventing the performance of article 3 of the Treaty of Ancon, which
provided for the holding of a plebiscite under certain conditions in the disputed area, Chile had discharged
Peru from her obligations under that article. The Arbitrator, after examining the evidence, rejected the
Peruvian contention, saying:
It is manifest that if abuses of administration could have the effect of terminating such an agreement, it would be necessary to establish such serious conditions as the consequence of administrative
wrongs as would operate to frustrate the purpose of the agreement,*355 and, in the opinion of the Arbitrator, a situation of such gravity has not been shown.
This pronouncement seems to assume that only a fundamental breach of article 3 by Chile could have justified Peru in claiming to be released from its provisions. [FN218]
This conclusion is obviously linked to the 1966 Report, which asserted that the breach must be of a serious
character to justify termination. [FN219] Moreover, it is apparent that Peru sought only an abrogation of the provisions of article 3. For this purpose, only a serious breach would be sufficient, however significant article 3
might have been in the scheme of the treaty.
The Peruvian case could be interpreted as focusing on the object of a particular provision (i.e., to allow the
inhabitants of two of the three provinces seized by Chile in the War of the Pacific to determine their destiny
after a period of Chilean administration), rather than focusing on the principal purpose of the treaty as a whole
(i.e., to bring the war to an end). [FN220] Peru contended not so much that article 3 had been violated, but that
its purpose had been undermined by the Chileanization policy adopted by the administration there. [FN221]
Under this interpretation, it is possible to limit the consequence of a relatively serious breach of the obligation to
article 3 without undoing the entire treaty. [FN222] Of course, there could be conduct, an assertion of Chilean
sovereignty in the disputed provinces, for example, which would entitle a state such as Peru to terminate the
treaty as a whole. [FN223] In selecting the appropriate outcome, the principle of proportionality would have a
significant role to play.
*356 If this outline coincides with customary international law, [FN224] the wording of article 60(3)(b) is
not a satisfactory representation of that law. The uncertainties borne out by statements made at the Vienna Conference suggest that some delegates misunderstood the meaning of the Commission's draft articles. [FN225]
This was certainly true of the Finnish and American representatives. The former sought to amend the text to ensure that only a serious breach of an appropriate provision could be regarded as material, [FN226] while the latter emphasized in the draft that the injured party had no right to make a response disproportionate to the nature
of the breach. [FN227] Yet despite the absence of both concerns from the final version of article 60(3), the In-
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ternational Court has stated firmly that the Convention rules concerning termination of a treaty relationship on
account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of
existing customary law on the subject, and that therefore only a material breach of a treaty, as defined in article 60(3), justifies termination. [FN228]
3. Outside the Vienna Convention
The inconsistencies and inadequacies of the Vienna Convention do not end, in this context, with the failings
of article 60. There is also a conflict between article 42(2) and article 73 which must be resolved. According to
the former, [t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a
result of the application of the provisions of the treaty or of the present Convention. The same rule applies to
suspension of *357 the operation of a treaty. [FN229] On the other hand, article 73 stipulates that the
provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty . . .
from the international responsibility of a State. [FN230]
Consider a case where state A, seeking reparation from state B for a breach by the latter of its treaty obligations, exerts pressure on state B through suspension of treaty rights to which state B was entitled. On its face,
article 42(2) seems to give the Convention regime priority with regard to the continued existence of the treaty or
the primary rights it creates, despite the fact that the Convention is not to affect the international responsibility
of states under article 73. The difficulty with this interpretation is that the Convention regime is incomplete. For example, non-material breaches are, by virtue of article 73, left to the rules concerning the responsibility of states. However, articles 60 and 42 imply that the rules in question should not impinge upon the Convention restrictions. The problem is that principles of reciprocity and proportionality are the hallmarks of the
customary system of state responsibility.
This problem is illustrated by the well known Air Services Agreement case between France and the United
States. [FN231] Pan Am, a designated carrier operating a route from the U.S. West Coast to Paris via London,
decided to cut costs by transferring passengers for Paris to a smaller aircraft in London. French authorities alleged that this was prohibited under the Air Services Agreement and then prevented passengers from disembarking from the smaller aircraft when they arrived in Paris. The American Civil Aeronautics Board issued an order
prohibiting Air France from operating certain services to the United States for as long as the embargo on Pan
Am was maintained. [FN232]
The tribunal did not consider the issue of materiality in assessing the legitimacy of the U.S. reaction. It held
that a breach of an international obligation entitled a party to take countermeasures having some degree of equivalence with the alleged breach. [FN233] In this case, that requirement had been satisfied:
*358 In the course of the present proceedings, both Parties have recognised that the rule applies to
this case, and they both have invoked it. It has been observed, generally, that judging the proportionality
of counter-measures is not an easy task and can at best be accomplished by approximation. In the
Tribunal's view, it is essential, in a dispute between States, to take into account not only the injuries
suffered by the companies concerned but also the importance of the questions of principle arising from the
alleged breach. 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 authorit-
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ies 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. Neither Party has provided the Tribunal with evidence that would be sufficient to affirm
or reject the existence of proportionality in these terms, and the Tribunal must be satisfied with a very approximative appreciation. [FN234]
Proportionality was also relevant to the question of whether the United States was entitled to take measures
in light of the fact that the agreement provided for a process of regular consultations, thus establishing a clear
mandate to the Parties to make good faith efforts to negotiate on issues of potential controversy. [FN235] The
tribunal emphasized the primacy of proportionality as the measure of the appropriateness of countermeasures:
Indeed, it is necessary carefully to assess the meaning of counter-measures in the framework of proportionality. *359 Their aim is to restore equality between the Parties and to encourage them to continue
negotiations with mutual desire to reach an acceptable solution. In the present case, the United States of
America holds that a change of gauge is permissible in third countries; that conviction defined its position
before the French refusal came into play; the United States counter-measures restore in a negative way the
symmetry of the initial positions. [FN236]
This comparts with a notion of reciprocity that restores equality between the parties, an equality disturbed
by the wrongful act of the other party. There was certainly no justification for a rule prohibiting the use of
counter-measures during negotiations, especially where such counter-measures are accompanied by an offer for
a procedure affording the possibility of accelerating the solution of the dispute. [FN237]
Differing interpretations can be placed upon this decision. At one level, it could be read as discarding any
test of materiality in the context of the suspension of treaty rights. In other words, article 42(2) of the Vienna
Convention should be applied without its second sentence, which would be a dead letter on this reading. Another possibility is to regard the Convention as dealing solely with material breaches, and thus not in
conflict with the outside law on non-material breaches. [FN238] This approach must raise grave *360 doubts,
however, because the mention of specific remedies in relation only to material breaches strongly suggests that
those remedies are not available for lesser breaches.
A third interpretation regards proportionality as an overriding principle of customary law, a principle that
must be applied both to the interpretation of the Vienna Convention's specific provisions and to matters not
covered by the Convention. This approach is in harmony with the decision in Air Services Agreement. Although the issue of materiality was argued by the parties, [FN239] it was ignored by the tribunal. Proportionality was the more important principle. Interpreting article 60 in accordance with the principle of proportionality would bring the article more into line with the reasonable expectations of treaty parties. In addition,
where the Vienna Convention is silent, the principle appears indispensable.
IV. TREATY LAW AND STATE RESPONSIBILITY
International law may be regarded as a complete system: a dispute may be resolved by the application of legal rules urged by the parties and selected by an international tribunal. However, the remedial side of the international legal system is underdeveloped both in theory and practice.
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A. The Historical Background

Given that international relations are less than eighty years from an era when the ultimate sanction was a recourse to force, it is not surprising that the remedial aspect of international law is underdeveloped. Indeed,
echoes of the concept of a just war, the concept that recourse to war was legitimate only in response to a serious
provocation, persisted until conventional restrictions were introduced by the Covenant of the League of Nations
and by the 1928 Pact of Paris. [FN240] Thus, reprisals were permitted when an injury has been done, in the
commission of which a state cannot be expected to acquiesce, for which it cannot get redress by purely amicable
means, and which is scarcely of sufficient magnitude to be a motive of immediate war. [FN241] It was recognised that acts of reprisal,*361 though milder than war itself, were distinguishable from acts of war only in intention. [FN242] Nevertheless, it was open to the state against which such acts were directed to determine
whether the relation of war was established. [FN243]
This grey area of the law was not unregulated. As long as the parties were prepared to treat the circumstances as falling short of war, the state against which the reprisals were directed could seek reparation for unjustified reprisals. In other words, if there had been no prior breach of an international obligation by that state,
or if the state taking the reprisals had made no prior demand for redress, or if the reprisals taken were disproportionate to the original, allegedly wrongful, act, reparation was a legal option. [FN244]
Towards the end of the 18th century the advent of arbitration did much to provide a remedial side to international law, although it was primarily concerned with state responsibility for wrongs suffered by nationals of one
state at the hands of another state. [FN245] Issues of redress for breach of direct obligations were seldom submitted for third-party determination. [FN246] As far as treaties were concerned, questions as to their breach
and the appropriate remedy to be applied were not central issues: arbitral awards concentrated upon the relevance of these issues for the particular dispute (i.e., whether a treaty was in force between the parties and how, as
a matter of interpretation, it applied to the circumstances of the case). [FN247]
For the most part, the remedial aspect of the law of treaties was dependent upon the views of writers as deduced from whatever material they thought appropriate. According to Grotius, war was justifiable to redress an
injury suffered by a state, including an *362 injury arising from the breach of a treaty. [FN248] Grotius did not
say whether any breach of treaty was a sufficient excuse. However, in his discussion of justifications for the use
of force, [FN249] he accepted the need for some degree of proportionality between the reaction and the offense
in a range of examples. [FN250] By analogy, it seems likely that Grotius would not permit any breach or termination of a treaty to justify recourse to war. Clearly, Grotius believed that any breach of a treaty would entitle the
other party to withdraw from the treaty because the individual terms of an alliance could be regarded as hav
[[[ing] the force of conditions. [FN251] He added that this was a matter of interpretation of the terms of the arrangement because in some cases such an agreement is made in order that withdrawal from the league may not
be permissible for a slight offence. [FN252] In sum, Grotius' writings support recourse to war as a sanction only
for a serious breach; his writings also require that the breached treaty term be a condition precedent to further
performance in order to support a right to terminate the treaty.
The same scheme appears in the writings of Wolff, who asserted that [i]f one party shall have violated a
treaty, the other party also *363 can withdraw from it. [FN253] It is clear from his commentary that the injured
party may choose to use force to compel the other to perform his promise, or to withdraw from the stipulation,
and that a breach of a treaty was a justification for war. [FN254] Wolff added that, since the other party cannot
be compelled to perform its obligation otherwise than by force, frequently it can be advantageous to withdraw
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from the stipulation, or abrogate it, rather than to make war upon the one who first withdraws. [FN255]
However, the right of withdrawal in response to a prior breach was subject to a degree of proportionality in that
the initial response should be limited to a withdrawal from the reciprocal obligation. This hypothesis was based
on the idea that a state was not entitled to withdraw from one treaty in response to the breach of a different
treaty between the same two states. [FN256] In Wolff's opinion, because treaties or provisions concerning different matters were to be treated in the same way, if one ally violates a treaty as regards one term, the other ally
has no right for this reason to withdraw from the entire treaty. [FN257] It is doubtful that such niceties had
much value in the real world. As long as force was the ultimate sanction for a breach of treaty obligations,
[FN258] the principles of proportionality or reciprocity had limited scope. After contending that there was no
right to withdraw from a treaty in toto for the breach of a provision, Wolff averred that the injured party
is either allowed not to perform that which on his part has been promised in return, or the other ally
can be compelled to perform, if performance is still possible, or, when this cannot be done, to repair the
loss caused by violation of the treaty, and consequently can be compelled to do this under threat of withdrawal from the entire treaty. [FN259]
*364 It may appear nonsensical to posit that (1) in response to a breach of a treaty provision, a party could
only refrain from performing the obligation reciprocal to that broken, while also holding that (2) a party could
compel performance or reparation by threatening sanctions, including the sanction of withdrawing from the entire treaty. The justification for such a scheme was the distinction between a remedy for breach of the treaty and
a threat of reprisal to insure performance or compensation. [FN260] A consequence of this approach was that it
created an obvious divergence between reciprocity and proportionality. First, the reaction of non-performance
was restricted to the reciprocal obligation, limited by the need to show the necessary nexus between the obligation broken and the response. On the other hand, if the responding party demanded performance of the broken
obligation, or compensation for the breach of that obligation, proportionality limited the reactive measures available to secure satisfaction.
Vattel's writings reveal the artificiality of Wolff's distinction. Vattel rejected as absolutely untenable the
suggestion that a party was limited in its response to a treaty breach to a refusal to carry out the reciprocal obligation. In his view, [t]he separate articles of the same treaty can not be regarded as so many distinct and independent treaties. [FN261] He further pointed out that
[a]lthough it may be that no direct connection can be seen between the articles, they are all bound together by this common relation, that each of the contracting parties agreed to certain articles less beneficial in view of others more so. I should never, perhaps, have agreed to this article had my ally not granted
me another which has no relation of subject-matter to the first. [FN262]
The most that Vattel would admit was that the alternative approach was unquestionably the conduct which
prudence, moderation, the love of peace, and charity will ordinarily prescribe to Nations. [FN263] This was a
question of morality, not of law. However, Vattel's views need to be regarded with some caution. Today the
United Nations Charter requires that disputes should be resolved *365 by peaceful means and that the conduct
questioned by Vattel should be the norm under the Charter. Indeed, Vattel went so far as to suggest that, in the
same way that force was a justifiable response to a breach of treaty obligations, it was permissible for the victim
of a breach to threaten to annul all treaties between the two states in the attempt to exact due performance of the
broken treaty. [FN264]
The law expounded in the 17th and 18th centuries was influenced significantly by the option of a totally disproportional recourse to war if a breach of obligation went unremedied. In Vattel's case, even where the avail-
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ability of force as the ultimate sanction prompted the thesis that a breach of one treaty entitled the innocent party
to threaten to abrogate all treaties, there were inconsistencies. For example, when dealing with international dispute settlement, Vattel suggested that a distinction should be drawn between a breach of essential obligations
and a breach of less important rights, and that there was a duty to settle matters in the second category:
We know that, in general, duties towards self prevail over duties towards others; but this is only to be
understood of duties which bear some proportion to one another. A nation can not refuse to forget itself
to some extent with respect to interests that are not essential, to make some sacrifice, in order to assist
others, and above all in order to promote the welfare of human society. We may even suggest that it is to
a Nation's own advantage and to its own well-being to make this generous sacrifice; for the private good
of each Nation is intimately bound up with the general good of all. What idea should we have of a prince,
or of a Nation, who would refuse to yield the smallest advantage in order to gain for the world the inestimable blessing of peace? Each Nation, therefore, owes it to the welfare of human society to show itself
open to every means of conciliation, where interests that are not essential, or are of small consequence,
are involved. [FN265]
17th and 18th century treaty law also perceived treaties as essentially bilateral and so akin to the contract of
private law. [FN266] When *366 major multilateral arrangements appeared, they were regarded more as political matters, concerning power rather than law. [FN267] Such arrangements were subject to adjustment amongst
the principal states concerned, [FN268] despite the homage paid to the principle of the sanctity of treaties.
[FN269]
*367 B. The Modern Law of Treaties
In many ways, the inter-war years provided a dividing line between the old law and the new. On one hand,
there were the attempts under the League of Nations, culminating in the 1928 Kellogg-Briand Pact, to remove
recourse to war from the means available to resolve international disputes. Moreover, the Covenant of the
League purported to deal with what had been perceived as the political issue of out-of-date treaties, [FN270] a
problem addressed in article 19, whereby the Assembly of the League might from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable. [FN271] Little if any use
seems to have been made of this provision. On the other hand, Germany denounced various parts of the 1919
Treaty of Versailles [FN272] in a manner reminiscent of the notion that political treaties, including those imposed at the end of a war, were open to renegotiation and replacement as circumstances changed, regardless of
the view of the other parties.
At the end of the Second World War, the law that emerged from, and was asserted by, the United Nations
allied against Germany and Japan was still in many respects uncertain. Despite the relative failure of international law and international adjudication to promote the peaceful settlement of disputes in the period between 1919
and 1939, the preamble to the United Nations Charter expressed the determination of the peoples of the United
Nations . . . to establish conditions under which justice and respect for the obligations arising from treaties and
other sources of international law can be maintained. [FN273] The Kellogg-Briand Pact's renunciation of war
as an instrument of national policy, [FN274] reaffirmed in *368 broader terms by article 2(4) of the new
Charter, [FN275] inevitably involved a more legalistic framework for the law of treaties and, more particularly,
for the law concerning the breach of treaty obligations. The fact that the use of force was no longer available in
the latter situation required a reassessment of the relevant law.
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The remedial aspects of the treaty law that survived took two forms: the ill-defined right to abrogate, in
whole or in part, a treaty which had been broken; and the possibly overlapping right of non-violent reprisals as a
means of securing compliance with the original treaty obligation or with an alternative obligation of providing
satisfaction to the injured state. Indeed, the lack of clarity in the law can be seen in Schwarzenberger's suggestion that, in general, the right of termination was justifiable in terms of reprisal:
A subject of international law may claim the right to . . . consider [a treaty] abrogated on the ground
of its non-fulfillment by the other party or parties. If redress is otherwise unobtainable, such a claim can,
in principle, be justified on the ground of reprisal. Basically, the right to take such action is in accordance
with reciprocity as the typical working principle behind the law of treaties. [FN276]
In this light, the essentially contractual view of treaties adopted in article 60 of the Vienna Convention does
not accord with customary international law as described by the International Court in the Namibia case.
[FN277] It would have been more in keeping with state practice for the International Law Commission to have
drafted article 60 simply as a limit to the course of conduct open to a party affected by a breach. In other words,
a party might claim to be entitled to terminate a treaty in whole or in part only if (1) the breach is material, and
(2) performance or satisfaction by the party in breach is not forthcoming. This proposed version of article 60
would apply to both treaty law and the law of state responsibility [FN278] *369 to limit any attempt to terminate
a treaty for breach of its terms. The right of suspension would also be available in such circumstances, but it
should not be restricted just to those circumstances. As the Air Services Agreement case [FN279] demonstrates,
rights of suspension exist under the general law of responsibility, despite the apparent bar to such action in article 42(2) of the Vienna Convention. [FN280]
Leaving aside the situation where a state seeks a pretext to escape from its treaty obligations, a state reacting
to a breach will be influenced primarily by how seriously it perceives a breach in light of its own interests in the
performance of the treaty. Only if it regards termination or suspension as an appropriate remedy in the circumstances will it concern itself with what it is likely to view as the artificial issue of whether the breach is material. The defects in the definition of materiality in article 60(3) have already been mentioned. [FN281] As in Air
Services Agreement, emphasis should be placed on concepts of reciprocity and proportionality to determine both
the availability and the extent of the right of termination. There are grounds for believing that the decision to terminate is an exceptional choice and that most states are more likely to negotiate a modus vivendi rather than
destroy a treaty relationship altogether. [FN282] In other words, termination for breach is the ultimate reprisal or
sanction.
C. State Responsibility: Pacta Non Sunt Servanda?
Despite the wording of article 42(2) of the Vienna Convention, whereby termination and suspension of a
treaty may take place only as a result of the application of the provisions of the treaty or of the present Convention, [FN283] some of the International Law Commission's special rapporteurs on part 2 of the Draft Articles
on State Responsibility seem to have assumed that this provision *370 does not prejudice the rights of a state
with regard to a treaty arising from the international responsibility of a State under article 73. [FN284] In other
words, article 73 is not limited simply to the issue of reparations for breach; it also permits a state to react to a
breach by refusing to perform treaty obligations. [FN285]
The trend in some of these statements has ignored the philosophy behind the Commission's earlier work on
the law of treaties, which in significant instances limited the right of termination or suspension available to
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states, [FN286] and has countenanced the potentially extensive rights of termination or suspension. As Special
Rapporteur Arangio-Ruiz wrote in his Third Report on State Responsibility:
The legal regime of suspension and termination of treaties within the framework of the instrumental
consequences of an internationally wrongful act covers or should cover instead ( de lege lata or de lege
ferenda) such hypotheses of resort to these measures as: (i) suspension or termination of a treaty (or any
rule or part thereof) in response to an infringement of one or more of the obligations deriving from the
same treaty; (ii) but, far beyond that area (which is roughly the area covered by Article 60), suspension or
termination of a treaty (or any rule or part thereof) in response to a breach of any other treaty or treaties
; and (iii) suspension or termination of a treaty (or any rule or portion thereof) in response to a breach of
a rule of general international law, whether an ordinary customary rule or principle or a peremptory
rule. [FN287]
*371 While the rapporteur's view of the scope of a right of termination or suspension may be justified by the
more extensive availability of reprisals in the traditional law, it would render nugatory the Commission's attempts to uphold the sanctity of treaty relationships in the Vienna Convention. Indeed, the rapporteur seems to
be encouraging a virtually unlimited right to terminate a treaty for breaches of obligations that have no obvious
link with the treaty in question. While it is true that countermeasures must be proportional to the breach and its
consequences, this limitation may not in itself be adequate. Materiality under the Vienna Convention, whatever
its drawbacks, is at least restricted to breaches of the same treaty.
A limited exception might be contended for in the case of a state that has failed to perform an obligation under a treaty and cannot therefore require performance of a corresponding obligation by the other party. This is
essentially the application of the principle of reciprocity, or inadimplenti non est adimplendum, in its narrowest
sense. As Riphagen explained in his Fourth Report,
if it appears from the treaty or is otherwise established that the performance of an obligation by a
State party is the counterpart (quid pro quo) of the performance of the same or another obligation by another State party, the non-performance by the first mentioned State need not be a material breach in order
to justify non-performance by the other State. [FN288]
Such a reaction could be justified in two alternative ways. First, as already suggested, [FN289] it could be
argued that the proposition advanced in article 42(2) of the Vienna Convention is incorrectly stated as applying
to treaty suspension. In such a case, the reacting state is entitled to suspend the relevant provision and to refuse
to perform the reciprocal obligation until there is due performance on the other side. The other side may choose
through its actions whether the reciprocal obligation ever needs to be performed by the reacting state. After all,
it is only if the initial intransigence becomes continuing that the suspension will be rendered permanent. The
other possibility is to regard the inadimplenti principle as an implication of the parties' apparent intentions within the *372 treaty in relation to the provisions in question. As it would thereby become part of the treaty it would
satisfy the requirements of article 57(a) and, if the suspension should become permanent, articles 54(a), 58(a),
and 60(4).
The integrity of article 60 would be undermined by the state responsibility exception in two circumstances:
(1) if it was a legitimate reprisal to terminate a treaty or a provision for a non-material breach of that treaty; or
(2) if it was legitimate to terminate a treaty or provision for breach of an obligation established by either another
treaty or some rule of customary international law. The sanctity of treaties, pacta sunt servanda, requires that
every treaty in force is binding upon the parties to it and must be performed by them in good faith. [FN290]
The International Law Commission correctly regarded this as the fundamental principle of the law of treaties.
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[FN291] It would be unfortunate if the Commission were to undo its work on the law of treaties by accepting the
above powers under the regime of state responsibility. Fortunately, the actual text of part 2 of the Draft Articles
is not so supportive of the concept of a separate regime overriding the limitations expressed in articles 42(2) and
60.
There is also no obvious justification for the Commission to support such a regime. The tribunal in Air Services Agreement did not sanction such an extension of remedies, but instead carefully limited its comments to
situations where the alleged violation and countermeasure related directly to the same agreement:
At this point, one could introduce various doctrinal distinctions and adopt a diversified terminology dependent on various criteria, in particular whether it is the obligation allegedly breached which is the subject of the
counter-measures or whether the latter involve another obligation, and whether or not all the obligations under
consideration pertain to the same convention. The Tribunal, however, does not think it necessary to go into
these distinctions for the purposes of the present case. Indeed, in the present case, both the alleged violation and
the counter-measure directly affect the operation of air services*373 provided for in the Agreement and the Exchange of Notes of 5 April 1960. [FN292] Moreover, the United States apparently regarded the treaty rule in article 60 as paramount, but also believed that countermeasures justified some action less drastic than termination
or suspension of the agreement as a whole. The U.S. reply to the French memorial included the following passage:
France also argues that if there were a violation, it was too minor to justify a retaliatory response under treaty law doctrines. The authorities it cites for this proposition relate to the termination of a treaty as
a consequence of its breach, or to the temporary suspension of the entire treaty or severable portions
thereof. The United States took no such action. It has always considered the treaty fully in force during
the period of the dispute and never purported to terminate or wholly suspend its application. Rather it
took steps toward a limited withdrawal of certain rights of the French carriers corresponding to the rights
denied the U.S. carriers. This action is justified under international law though the underlying French
breach would not have justified termination or suspension of all rights and obligations under the treaty.
The reasons for considerably more caution where a treaty is to be terminated or wholly suspended are
clear. If a trivial or nonmaterial breach gave the aggrieved party an excuse to terminate all treaty obligations, the rule of pacta sunt servanda would be seriously impaired. However, where the sanction to be invoked is a simple reciprocal withdrawal of rights, the rule of proportionality provides an adequate safeguard. This is particularly true where, as here, the proportional countermeasures are invoked only
pending restoration of bilateral rights for an interim period pending judicial resolution of the dispute by
arbitration.
If the French argument were extended to apply to situations where termination or total suspension are
not involved, there would in effect be no sanction and hence no deterrent for most sorts of breaches. For
this reason *374 the majority of commentators recognize the aggrieved state's right to invoke proportional
countermeasures short of termination or suspension. [FN293]
It will be regrettable if the International Law Commission's more recent work undermines the integrity of
treaties. While there is an ill-defined border between the law of treaties and the law of state responsibility, it is
important to draw a line that preserves treaty obligations and at the same time affords individual states sufficient
leverage over states breaking their international obligations.
The decision in the Rainbow Warrior arbitration was symptomatic of the trend towards downgrading treaties
under the rules of state responsibility. [FN294] In that case, the French authorities removed two French officers
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from the French island in the Pacific where they had been detained in lieu of serving the remainder of a prison
sentence imposed upon them by a New Zealand court for the bombing of the Rainbow Warrior in Auckland Harbor. [FN295] At first glance, this conduct appeared to constitute a breach of the agreement between the two
countries relating to the detention. France claimed that the removal was essential to protect the officers' health.
New Zealand argued that this excuse must be examined in the light of provisions of the Vienna Convention relating to fundamental change of circumstances. [FN296] France contended that the International Law Commission's Draft Articles on State Responsibility permitted the application of the principles of force majeure or distress to any breach of an international obligation. [FN297] The tribunal substantially accepted the French argument. Although the tribunal adverted to the significance of the principle of pacta sunt servanda under article 26,
and to the precise definition of . . . a material breach contained in article 60, [FN298] it found other considerations to be decisive:
On the other hand, the legal consequences of a breach of a treaty, including the determination of the
circumstances that may exclude wrongfulness (and render the *375 breach only apparent) and the appropriate remedies for breach, are subjects that belong to the customary Law of State Responsibility.
The reason is that the general principles of International Law concerning State responsibility are
equally applicable in the case of breach of treaty obligation, since in the international law field there is no
distinction between contractual and tortious responsibility, so that any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation.
[FN299]
The tribunal concluded that,
without prejudice to the terms of the agreement which the Parties signed and the applicability of certain important provisions of the Vienna Convention on the Law of Treaties, the existence in this case of
circumstances excluding wrongfulness as well as the questions of appropriate remedies, should be
answered in the context and in the light of the customary Law of State Responsibility. [FN300]
These pronouncements must be taken with a degree of caution. It is possible to regard the remedies for
breach as being those prescribed by international law, subject to the special rules, such as article 60, laid down
in the Vienna Convention. In Rainbow Warrior, France may well have been in material breach of the agreement, but because New Zealand was seeking performance of specific terms, and not abrogation of the agreement, article 60 was not relevant. Thus, the outcome of the case was dependent upon the general rules of international law concerning remedies.
More problematic was the tribunal's application of the principles for precluding wrongfulness under the law
of state responsibility. After considering the facts of the dispute, the tribunal held that none of the principles of
force majeure, [FN301] distress, or necessity applied. [FN302] It is clear that if the situation had justified a
particular *376 defense, France would have been exonerated, [FN303] and this approach may appear to have
been appropriate. The cardinal issue was not the consequences of a breach (i.e., whether it was material and
whether the agreement could be terminated as a result), but the essentially preliminary matter of whether there
had been a breach and whether the wrongfulness of that breach was precluded by the relevant defenses. [FN304]
Yet this explanation should not be accepted too readily. If state A commits a potentially material breach of a
treaty with state B, but can excuse its conduct by reference to one of the defenses in the Draft Articles on State
Responsibility, the treaty will no longer be performable. Its object and purpose will have been destroyed by the
material non-breach by the state pleading the defense. De facto this means that the factor precluding wrongfulness brings the treaty to an end. Admittedly, this hypothesis depends upon the identification of the object and
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purpose of a treaty, but article 60(3) of the Vienna Convention is also based on this identification. [FN305]
The unsatisfactory nature of this result is borne out by the Rainbow Warrior decision. Although the tribunal
held that keeping Major Mafart in France after a series of medical tests and bringing Captain Prieur to France
because of her pregnancy constituted material breaches of the France-New Zealand agreement, the tribunal held
that the obligation to return the officers ended with the three-year period for which their detention was to
last. Admittedly, France still had a duty to make reparations for the breach, but the tribunal absolved France
from future performance of the agreement. [FN306]
This interpretation of the agreement is open to criticism. Under the agreement, the two French officers were
to be transferred to a French military facility on the island of Hao for a period of not less than three years. They
will be prohibited from leaving the island for any reason, except with the mutual consent of the two governments. [FN307] To conclude that the obligation to return the officers to *377 Hao to complete their three-year
detention ended three years after the officers had been handed over to France seems inconsistent with the wording of this provision. [FN308]
The role of interpretation was more important to a correct determination of this case than the tribunal was
willing to accept. Arguably, due performance of the agreement depended primarily on issues of interpretation
and the rules of treaty law rather than on the law of state responsibility. The tribunal's rejection of this approach, espoused by New Zealand, may be attributed to a number of factors. First, the tribunal considered the
possibility that force majeure could excuse a treaty breach independently of rights of suspension or termination
that might exist under articles 61 and 62 of the Vienna Convention. [FN309] This may be because of the curious
disjunction between article 61, where the impossibility must result from the permanent disappearance or destruction of an object indispensable for the execution of the treaty, [FN310] and draft article 31(1), where the
wrongfulness of an act by a state is precluded if the act was due to an irresistible force or to an unforeseen external event beyond its control which made it materially impossible for the State to act in conformity with an
obligation. [FN311] If the two provisions were complementary, France could have invoked the principle of impossibility/ force majeure [FN312] as a basis for suspending its obligations temporarily under the agreement.
The defense of distress, invoked by France under draft article 32(1), was inappropriate in this
case. According to that draft article, the wrongfulness of an act of a state is precluded if the author of the conduct which constitutes the act of that State had no other means, in a situation of extreme distress, of saving his
life or that of persons entrusted to his care. [FN313] In its attendant commentary, the International Law Commission acknowledged that it had in mind
*378 cases involving the violation of a frontier of another State, particularly its airspace and its sea -for example, when the captain of a State vessel in distress seeks refuge from storm in a foreign port
without authorization, or when the pilot of a State aircraft lands without authorisation on foreign soil to
avoid an otherwise inevitable disaster. [FN314]
The commentary went on to state that the principle is applicable, if only by analogy, to other comparable
cases. [FN315] On this basis, the tribunal regarded the principle as relevant to the determination of whether
France had been justified in returning its officers to France.
The analogy is far from apparent. A more satisfactory solution could have been provided by an emphasis
upon the construction of the agreement in good faith as indicated by article 31(1) of the Vienna Convention. The agreement stated that the officers were prohibited from leaving the island for any reason, except with
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the mutual consent of the two governments. [FN316] New Zealand would not have been entitled to claim good
faith if it had withheld its consent in a case of emergency. [FN317] Nor could the words for any reason in the
agreement be regarded as excluding such an evacuation. It would not have been the parties' intention that a person in need of medical treatment should be kept in a place of detention if adequate treatment was not available,
and their agreement was to be interpreted accordingly.
This approach would have been more satisfactory than the tribunal's distension of the principle of distress. In its own words, the tribunal had to determine whether the circumstances of distress in a case of extreme
urgency involving elementary humanitarian considerations affecting the acting organs of the State may exclude
*379 wrongfulness in this case. [FN318] This principle was then restated to justify France's conduct, under a
rule condoning breaches in response to [t]he existence of very exceptional circumstances of extreme urgency
involving medical or other considerations of an elementary nature, provided always that a prompt recognition of
the existence of those exceptional circumstances is subsequently obtained from the other interested party or is
clearly demonstrated. [FN319]
The principal objection to this pronouncement is that it took a good deal of ingenuity to demonstrate that
very exceptional circumstances of extreme urgency existed justifying the removal of Major Mafart to France.
[FN320] Under the interpretive approach proposed above, the onus upon France would not have been so heavy - there would have been no requirement to show, as is necessary for a valid claim of distress, that the person or
his physical integrity would have been seriously threatened or destroyed [FN321] if no action had been taken.
The tribunal would simply have evaluated whether, given the concern about the individual's health, it was unreasonable for New Zealand to withhold consent to the individual's removal. The answer to that question could
more readily have been in the affirmative. [FN322]
What emerges most clearly from the Rainbow Warrior case is the danger of diluting the law of treaties with
external principles of state responsibility. Not only was recourse to such principles unnecessary to the determination of the case, it was contrary to the rational development of a distinct law of treaties as well. Admittedly,
there are significant shortcomings in the Vienna Convention, but that instrument remains substantially more advanced than the rest of the international law of remedies, including various aspects of the law of state responsibility.
*380 To return for a moment to the International Law Commission's work on state responsibility, article
5(2)(a) of part 2 of the Draft Articles describes an injured state, entitled to take various steps prescribed in the
Draft Articles, as the other state to the state in breach of a bilateral treaty. [FN323] Article 8, also relevant to
situations arising out of the breach of a bilateral treaty, provides that the injured State is entitled, by way of
reciprocity, to suspend the performance of its obligations toward the State which has committed an internationally wrongful act, if such obligations correspond to, or are directly connected with, the obligation breached.
[FN324] Article 9(1) goes on to entitle the injured state, by way of reprisal, to suspend the performance of its
other obligations towards the State which has committed the internationally wrongful act. [FN325] However,
article 9(2) provides that the exercise of this right by the state concerned shall not, in its effects, be manifestly
disproportional to the seriousness of the internationally wrongful act committed. [FN326]
*381 Both of these provisions are in line with traditional rules relating to countermeasures and are clearly
applicable to treaty relationships. Indeed, with regard to the principle of inadimplenti non est adimplendum in
draft article 8, the most obvious examples of obligations which correspond to, or are directly connected with,
the obligation breached [FN327] are those contained in a bilateral treaty or in a multilateral instrument creating
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bilateral relationships. It is essentially a legal link established by the parties between the obligations they have
undertaken. [FN328] In the most obvious example of its operation, it relieves one party from performing the reciprocal obligation until the breaching party has performed its side of the bargain, a principle that is totally outside of the concept of materiality in article 60 of the Vienna Convention. [FN329]
On its face, article 8, and therefore presumably article 9, apply equally to breaches of treaty and other international obligations, and envisage acts directed against the continuing operation of a treaty in whole or in
part. However, with delphic clarity, article 16 concludes part 2 of the Draft Articles by stipulating, inter alia,
that the provisions of the present articles shall not prejudge any question that may arise in regard to: (a) the invalidity, termination or suspension of the operation of treaties. [FN330] This could mean that the provisions
are not to affect issues relating, in this context, to the termination or suspension of treaties, thus leaving the Vienna Convention's article 60 as the primary source of law. It is doubtful, however, that this is a correct interpretation because article 11 seems to suggest that, under the present articles, a right of suspension of treaty obligations can arise. [FN331] On the other hand, it does not seem at all obvious that the primary purpose of article 16
is to preserve only the procedural consequences of a material breach as suggested by Riphagen:
The procedural legal consequences of a material breach of a treaty obligation, as regards the termination or suspension of the operation of the treaty itself within the framework of the substantive and procedural provisions *382 of the Vienna Convention, should not be dealt with in the draft articles on State
responsibility. . . . [These] legal consequences could be reserved by a clause corresponding to article 73 of
the Vienna Convention. [FN332]
In these circumstances it is no easy matter to determine where the International Law Commission's work will
lead, but it obviously may threaten the notion of pacta sunt servanda. To recall the inherent difficulties with the
materiality test of the Vienna Convention: The pre-existing customary law recognized the principle of proportionality as an acceptable limit on the right of termination or suspension. The Convention replaced customary
limits on reprisal with a legalistic device requiring both a determination of the object and purpose of the treaty
and an identification of a broken term essential to the accomplishment of that object and purpose. The attitude,
if not the practice, of states is more accurately reflected in the proportionality of the customary regime, except
perhaps with regard to states prepared to accept that the principle of materiality is in some way linked to proportionality and should be interpreted in light of it. [FN333] However, if one accepts that materiality is distinct
from proportionality, then the level of reaction to a treaty breach available outside the treaty regime may differ
significantly from that allowed in relation to the terms of that treaty and the performance thereof. Taken to its
logical conclusion, if there is no restriction other than proportionality on the right of a state to react to a breach
of an international obligation, [FN334] a serious breach of one treaty, even if it did not involve a provision essential to the accomplishment of the object and purpose of that treaty, could justify suspension or termination of
a second treaty not relevant to the object or purpose of the first.
D. The Situation Under Multilateral Treaties
Thus far this Article has concentrated on remedies in a bilateral context. With regard to multilateral treaties,
the International Law Commission was faced with a relative dearth of practice upon which to base any rule. For
the most part, it adopted rules based on the idea of a bilateral relationship involving a material breach and a reaction thereto, a relationship in which notions of reciprocity*383 are relevant and identifiable. Thus, by article
60(2)(b), a party specially affected by such a breach may invoke it as a ground for suspending the operation of
the treaty in whole or in part in the relations between itself and the defaulting State. [FN335] Moreover, aspects
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of proportionality are present in article 60(2)(c), whereby any party except the defaulting state can invoke the
breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the
treaty is of such a character that a material breach of its provisions by one party radically changes the position of
every party with respect to the further performance of its obligations under the treaty. [FN336]
The right of both termination and suspension for a material breach of a multilateral treaty is vested by article
60(2)(a) in the treaty parties as a whole. This power is limited, however, by the need for the parties to act by
unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the
relations between themselves and the defaulting State, or (ii) as between all parties. [FN337] This provision ignores a number of fundamental issues. First, as a matter of treaty law, it seems to deny the authority of the common will of the parties, relying instead on unanimous agreement to deal with serious transgressions of a treaty's
provisions. The former possibility [FN338] is a consequence of political dynamics and the history of Europe's
multilateral treaty relations during the 19th century. As De Visscher wrote, in terms as applicable to issues of
breach and sanction as to the issue of revision of treaties:
It often happens that a multilateral convention abrogating and revising a previous multilateral convention is concluded without the participation of all the States who were parties to the earlier agreement. It is more and more clearly recognized that strict application of the rule requiring that all the original contracting parties shall take part in or adhere to the revision may be difficult or even impossible
owing to changes in the political constellation,*384 especially when the first multilateral convention . . .
has itself a marked political character. There is some contradiction between the orthodox principle of unanimity among the contracting parties and a practice which more and more regards as acquiescence anything less than solemn protest, overlooks resistances that are too weak to prevail, and if necessary ignores
some governments to confront them with the accomplished fact. Thus the great international acts of a
constitutional nature have met the inescapable need of revision by sacrificing rather freely the contractual
rule of unanimity. [FN339]
Admittedly, in the present century, the number of non-political conventions has increased dramatically, precipitating what De Visscher termed the contractual organization of a procedure of revision of such conventions, [FN340] which has been of equal relevance to the acceptance of the rule prescribed in article 60(2)(a) of
the Vienna Convention.
The avenues for less than unanimous response to a breach of a multilateral treaty are also preserved indirectly. For example, parties may effect changes to a treaty regime on this basis in accordance with articles 30,
40, and 41 of the Convention. [FN341] In addition, article 60(2) leaves open the possibility of sanctions for
treaty breaches not only directed against the treaty itself, but also under the general law of state responsibility.
[FN342]
The wording of article 60(2) engenders a number of problems. The use of the expression specially affected
in article 60(2)(b) [FN343] suggests something more than the general right of all parties to react to any breach of
the treaty in question. It has an obvious counterpart in the law of state responsibility. The purpose behind article
60(2)(c) was to denote rights available under a particular type of treaty, i.e., one which is of such a character
that a material breach of its provisions by one party radically changes the position *385 of every party with respect to the further performance of its obligations under the treaty. [FN344] The International Law Commission's commentary on this provision is not altogether helpful in defining such a treaty. Under a disarmament
treaty, for example, excluding a party for breach under article 60(2)(a) could still leave other parties with security problems that probably could not be addressed within the requirements of the treaty regime. [FN345] In addi-
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tion, parties in this situation might not be able to demonstrate that they were specially affected by a treaty
breach. [FN346] Despite the apparent intention behind the provision, the imprecise definition makes it difficult
to be sure that a particular treaty falls within its compass. In particular, it is possible to imagine a case where a
majority of parties, breach notwithstanding, wish to preserve the treaty and thus deny any right of suspension.
The parallel between article 60(2) (at least paragraphs (a) and (b)) and the rules of state responsibility can be
seen in the debate over whether reactions to a breach are restricted by the rules of state responsibility in similar
fashion. That is to say, must the reactions either be agreed upon by the rest of the parties or be taken by specially affected states, as with the steps taken by the United States against Iran to secure the release of its diplomatic staff held in Tehran? There is much to be said for imposing similar limits under the law of state responsibility. In a dispute between parties over a breach of a bilateral treaty, or a multilateral treaty creating *386 bilateral relationships, it would be a significant escalation of the dispute to sanction the intervention in that dispute
by outside states or even by parties to the multilateral instrument in question. [FN347] Similarly, with regard
to a multilateral convention establishing general or integral, rather than bilateral, obligations, the reactions to a
breach should be those agreed on by the other parties rather than those chosen by individual parties. [FN348]
It seems, however, that there is a range of opinion against such restrictions on the right to undertake countermeasures. Western writers in particular support a right of individual response to breaches of multilateral conventions in both categories. [FN349] With regard to integral obligations, they are at least owed to individual
parties as well as to the parties as a group, [FN350] and thus an individual reaction may readily be justified.
While the same argument may not apply so easily to the case of a multilateral treaty giving expression to rights
that are substantially bilateral, there have been instances where parties not affected by the breach have taken
countermeasures designed to secure compliance with the terms of the treaty. For example, Iran's breach of its
obligations under the Vienna Conventions on Diplomatic and Consular Relations at the time of and following
the seizure of the U.S. embassy and consulates in Iran led to the imposition of sanctions by the European Community against Iran. [FN351]
*387 This action has been criticized for failing to acknowledge the essentially bilateral nature of the dispute, particularly in the absence of any finding by the International Court that the obligations had been owed
erga omnes. [FN352] In addition, the general criticism has been made of the difficulty of ensuring proportionality in a situation where a number of individual states or groups of states decide for themselves what sanctions to
apply. [FN353] Various answers can be offered to both objections. As proportionality is an overriding principle
of the law relating to countermeasures, the risk of exceeding what is legitimate rests upon the reacting state or
states. Of course, there should not be an ever-expanding range of justifications for countermeasures that would
otherwise amount to breaches of international legal obligations. In response, it can be argued that all parties to a
regime, conventional or otherwise, have an interest in its protection, and that, in a case of breaches as serious as
those committed against the U.S. diplomatic and consular premises in Iran, regime members are entitled to take
individual or collective measures to reassert regime rules.
The International Law Commission seems to have adopted a scheme for state responsibility that largely reflects article 60(2) of the Vienna Convention. Thus, in draft article 5, provisionally adopted by the Commission
at the end of its 38th session in 1986, [FN354] an injured State, entitled to take various measures prescribed
elsewhere in part 2 of the Draft Articles on State Responsibility, is defined as meaning, inter alia:
*388 (e) if the right infringed by the act of a State arises from a multilateral treaty or from a rule of
customary international law, any other State party to the multilateral treaty or bound by the relevant rule
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of customary international law, if it is established that:

(i) the right has been created or is established in its favor;
(ii) the infringement of the right by the act of a State necessarily affects the enjoyment of the rights
or the performance of the obligations of the other States parties to the multilateral treaty or bound by the
rule of customary international law; or
(iii) the right has been created or is established for the protection of human rights and fundamental
freedoms.
(f) if the right infringed by the act of a State arises from a multilateral treaty, any other State party to
the multilateral treaty, if it is established that the right has been expressly stipulated in that treaty for the
protection of the collective interests of the States parties thereto. [FN355]
Only where an international crime has been committed does the expression injured State include all other
States by virtue of draft article 5(3). [FN356] The restrictiveness of this approach is further illustrated in draft
article 11(1):
The injured State is not entitled to suspend the performance of its obligations towards the State which
has committed the internationally wrongful act to the extent that such obligations are stipulated in a multilateral treaty to which both States are parties and it is established that:
(a) the failure to perform such obligations by one State party necessarily affects the exercise of the
rights or the performance of obligations of all other States parties to the treaty; or
(b) such obligations are stipulated for the protection of collective interests of the States parties to the
multilateral treaty; or
(c) such obligations are stipulated for the protection of individual persons irrespective of their nationality. [FN357]
*389 Thus, the Draft Articles seem to envisage only a very limited response by individual states, or groups
of states, to breaches of a multilateral treaty, unless the group comprises all the parties to the treaty except the
defaulting party. In other words, if these proposals accord with customary international law, the European response to Iran's breaches of the conventions on diplomatic and consular relations were probably illegitimate.
Before accepting this interpretation, it is necessary to examine the extent to which the rules relating to state
responsibility might be modified to take account of the factors that give rise to group rights. These rights arise
as either obligations erga omnes, amongst the international community as a whole, or as obligations under a
treaty regime. Our concern here is not with the former category, which Riphagen linked exclusively to situations involving the commission of an international crime. [FN358] The question is whether the existence of a
treaty regime or system entitles the parties to assume severally (i.e., individually or as a group from amongst
their number) the role of guardian of the regime and to take measures against a party for breach of regime obligations, or instead limits the right to countermeasures to joint action by the treaty parties.
The treaty itself can affect the right to take countermeasures in a number of ways. First, it can, expressly or
by implication, exclude or limit particular avenues of redress. The Vienna Convention on Diplomatic Relations
imposes obligations upon a sending state and its agents to respect the laws and regulations of the receiving state,
to refrain from interfering in the internal affairs of that state, and to prevent the premises of the mission from being used in any manner*390 incompatible with the function of the mission. [FN359] Nevertheless, the receiving
state's primary obligation remains that of respecting the inviolability of the diplomatic premises and agents of
the sending state. [FN360] The receiving state, however, is entitled to declare individual agents of the sending
state persona non grata and even to break off diplomatic relations entirely, requiring the diplomatic staff to leave
the country within a designated period. [FN361] As the International Court observed in Diplomatic and Consular
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Staff, rejecting Iran's justification of the seizure and retention of the embassy as a response to alleged criminal
activities against Iran:
[T]he rules of diplomatic law, in short, constitute a self-contained regime which, on the one hand,
lays down the receiving State's obligations regarding the facilities, privileges and immunities to be accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the mission and
specifies the means at the disposal of the receiving state to counter any such abuse. [FN362]
The Court certainly presented an accurate picture of the law of diplomatic relations, but it does not necessarily follow that the regime is completely self-contained. [FN363] Particularly serious cases -- for example, acts of
terrorism or other grave threats to the security of the receiving state -- may justify acts of self-defense, including
countermeasures against the sending state, or even against the diplomatic premises and its staff. [FN364]
The alternative scenario concerns the sanctions available to other parties. As already mentioned, the United
States' allies in the European Community imposed sanctions against Iran for the seizure of the American embassy and consulates and the detention of their staff in Iran. [FN365] Does the purported self-contained nature of
the conventions on diplomatic and consular relations in any way proscribe such a reaction? There can be no
doubt that the two conventions create reciprocal obligations on a bilateral basis *391 between sending and receiving states. While the European states would have been justified in taking action if there had been a breach of
erga omnes obligations, it is doubtful whether the duties imposed by the two conventions could be so classified.
[FN366]
The crucial issue remains of whether the parties to a treaty are severally or as a sub-collective (i.e., a group
from among their number) entitled to act as guardians of the provisions of an instrument and, if they are, what
measures may be taken to uphold the duties imposed. Common article 1 of the Geneva Conventions of 1949,
which requires the parties to ensure respect for the provisions of the convention in question, [FN367] appears
to authorize parties to act in a protective or guardianship capacity. Presumably such a role may arise by implication from the terms of a treaty. It is at least arguable that this is envisaged by article 20(4) of the Vienna Convention on the Law of Treaties in its effect on article 19(c). [FN368] While some parties accept or acquiesce in a
reservation incompatible with the object and purpose of a treaty, others have the power to uphold the sanctity
and integrity of the treaty by rejecting the validity of the reservation. In addition, even where a breach would
normally raise solely bilateral issues, the nature of the breach might permit other parties to act in the interests of
the treaty parties as a whole. Here, in other words, is an example of latent proportionality. The seriousness of the
conduct of the Iranian government, which, in derogation of the rights of the United States, endorsed the seizure
of the latter's embassy and consulates and their staff, entitled other parties to the diplomatic and consular conventions to take countermeasures against Iran to uphold the two treaty regimes. This view finds support in the
reaction of the International Court which, in addition to declaring Iran's actions to be contrary to international
law, asserted the extent and seriousness of the conflict between the conduct of the Iranian State and its obligations under the whole corpus of the international rules of which diplomatic and consular law is comprised.
[FN369] Then, having recognized its duty to draw the attention of the entire international community . . . to the
irreparable harm that may be caused by such actions, the Court emphasized that events of this kind
*392 cannot fail to undermine the edifice of law carefully constructed by mankind over a period of
centuries, the maintenance of which is vital for the security and well-being of the complex international
community, to which it is more essential than ever that the rules developed to ensure the ordered progress
of relations between its members should be constantly and scrupulously respected. [FN370]
This approach is opposed by the idea upon which both article 60(2) of the Vienna Convention and the work
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of the International Law Commission seemed to be based. The right to respond to treaty breaches ( erga omnes
obligations apart) is vested either in the party or parties directly affected, or in all the parties, other than the state
in breach of its obligations, as a group. This formulation is inadequate for a number of reasons.
For a start, article 60(2) represents a residual position, as many multilateral treaties contain their own special
rules. For example, under some international conventions certain powers to deal with breaches are vested in an
executive organ. [FN371] Moreover, a treaty may expressly require individual parties to act as guardians of the
treaty. [FN372] What a state might do individually in such circum-*393 stances it could undoubtedly do in conjunction with other treaty parties. [FN373]
The idea that article 60(2) is no more than a residual rule can only be accepted if the contrary intention in the
treaty, preventing its application, may not only be express, but can also be implied from the nature of the treaty,
or from the nature of the breach if it is destructive of the regime created by the treaty. An illustration of the
former type of treaty is the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and
Under Water; [FN374] the principal obligations of this treaty, contained in article I, require each of the parties
to prohibit, to prevent and not to carry out any nuclear weapon test explosion . . . at any place under
its jurisdiction or control:
(a)in the atmosphere; beyond its limits, including outer space; or under water, including territorial
waters or high seas; or
(b)in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosion is conducted. [FN375]
In addition, the parties undertake to refrain from causing, encouraging, or in any way participating in, the
carrying out of any such nuclear weapon test or other nuclear explosion. [FN376] Even if Even if such a provision does not of itself authorize the taking of collective or individual action in case of a breach, the nature of
these obligations seems to provide the justification.
The proposition that the nature of the treaty or the nature of the breach might justify countermeasures by
some parties to the treaty *394 not involved in the wrongful act [FN377] should not be regarded as surprising in
either legal or political terms. Various measures were adopted, both within and outside the United Nations, to
circumvent the Security Council impasse that existed for many years. [FN378] The legitimacy of the action in
each particular case is not an issue. It is clear that many states regard action by a regional organization as legitimate under chapter VIII of the Charter because the action falls short of an actual enforcement action. [FN379]
Insofar as the action in question may have crossed this threshold, it was suggested that the absence of any vote
of disapproval by the Security Council amounted to the Council's authorization of the action. [FN380]
These examples, which involve some modification of the way in which the United Nations Charter operates,
are, irrespective of their legitimacy, illustrative of the perceived need to retain a degree of freedom to respond to
acts regarded as unlawful. This approach is acceptable in the case of a state whose rights have been *395 infringed, but not when it is only the interests of a reacting state that are threatened. There is danger in allowing an
extension of the power to take countermeasures to situations where the state concerned could not bring a valid
international claim. [FN381] However, the existence of the treaty nexus under the Charter between the party in
breach of its obligations and those taking countermeasures can justify such actions. As to proportionality, it operates at two levels. First, the nature and seriousness of the breach must be sufficient to justify a sub-group response. Second, while this might, in the political world, be a matter of political judgment, the overall legal question remains of whether the measures taken can be justified in terms of the breach that has occurred.
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The possibility that a sub-group might be entitled to respond to a treaty breach of sufficient magnitude with
countermeasures is also illustrated in the controversy over the scope of the right of collective self-defense. On
its face, article 51, in preserving the inherent right of collective self-defense, was endorsing the legitimacy of
treaty-based arrangements similar to the inter-American system in the Declaration of Habana of 1940 [FN382]
and the Act of Chapultepec of 1945. [FN383] This perception is borne out by the subsequent practice of creating
collective security alliances. [FN384] Nevertheless, an equally strongly held alternative view was that any
United Nations member could aid another member state if the latter had been the victim of an armed attack.
[FN385] Of course, this aid could also be provided jointly. [FN386]
In Nicaragua, the International Court did not address this debate, but required, as the basis for a valid act of
collective self-defense, a declaration by the victim that it had been subjected to an armed attack and a request for
assistance to states coming to its aid. [FN387] This ruling is founded upon an interpretation of the U.N. *396
Charter that allows collective self-defense to be exercised, not on the strength of any prior treaty commitment,
but by individual states or by a sub-collective of U.N. members responding to a request for assistance. The alliance in support of Kuwait after its occupation by invading Iraqi forces in 1990 was built on this basis. [FN388]
Moreover, the legitimacy of this view seems implicit in the reference in Security Council Resolution 661, of August 6, 1990, to the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait and in the proviso that nothing in the present resolution shall prohibit assistance to the legitimate Government of Kuwait. [FN389] In these two situations, proportionality was a relevant factor both to the
political dynamic (i.e., in political terms, was this a justifiable response?) and to the legality of the degree of
force employed (i.e., could the force used be justified in relation to the objectives the victim and its allies were
reasonably entitled to pursue in light of the action to which they were responding?). [FN390]
It should be emphasized that proportionality is a valuable political defense to criticism of an action that is of
doubtful legality. The plea of principled self-restraint is more likely to strike a sympathetic chord amongst other
states if the breach was commensurate with the objective to be achieved. But if the justification is accepted
politically as an appropriate response, a foundation is laid for state practice to accept the legality of such action
in future. In the case of the European response to the Tehran hostages crisis, proportionality was used both to
justify the sub-group response and to justify the extent of the retaliation. While it is not unusual to invoke proportionality to justify countermeasures (indeed, it is an essential test of their legitimacy), its use in the context of
the group's right to take such action was primarily a plea for its political acceptability. Once such acceptance is
forthcoming, however, it is but a short step to the acceptance of the legality of a sub-group response in which
proportionality will be the primary criterion.
*397 The significance of a treaty nexus, giving parties individually and jointly a sufficient legal interest in
the integrity of the treaty to intervene for its protection, is also recognized in the Statute of the International
Court. Article 62(1) allows a state to submit a request to be permitted to intervene in a case before the Court if
it has an interest of a legal nature which may be affected by the decision in the case. [FN391] It is for the
Court under article 62(2) to decide upon this request. [FN392] Under article 63(1), however, [w]henever the
construction of a convention to which states other than those concerned in the case are parties is in question, the
Registrar shall notify all such States forthwith. [FN393] Article 63(2) goes on to provide that any state so notified has the right to intervene in the proceedings. [FN394] In other words, the conventional link itself establishes the interest of a legal nature which entitles any of the parties to the treaty not already before the Court to
intervene. [FN395] Transposed into our context, parties to a treaty have as great an interest in the fact that a
treaty has been broken as they have in its interpretation. While this factor may not be adequate to place all
parties in the same position as the party or parties directly affected by the breach, a sufficiently serious breach
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can reasonably be regarded as establishing the same general right to take countermeasures.
As a final note regarding multilateral treaties, the International Law Commission's draft articles in part 2 of
its work on state responsibility are subject to the uncertainties created by the scope and consequences of draft
article 16, whereby the present articles are not to prejudge any question that may arise in regard to the termination and suspension of the operation of treaties. [FN396] However one views the special rapporteur's intentions
in advancing this proposition, it is difficult to be too critical until it is clear what limitations are concealed behind this provision's terms.
*398 CONCLUSIONS
Reciprocity and proportionality are themes that run through many areas of the law, and they have an especially important role to play in the law of treaty relations. In general, these principles are designed to maintain a
balance between the interests of opposing sides in negotiations or a dispute.
Reciprocity plays a significant part in the context of the compulsory jurisdiction of the International Court of
Justice. While this might be attributed to the Statute of the Court and in particular to article 36 paragraphs 2 and
3, neither of these provisions, nor the Statute, seems capable of bearing the wider implications placed on them
by the Norwegian Loans case. [FN397] Provided there is a sufficiently close nexus between the parties' declarations accepting the Court's jurisdiction, reciprocity may be applied to ensure, as far as possible and in the absence of a contrary intention in the text of the instruments, equality between the parties. Similarly, because the
effects and consequences of reservations are treated largely on a bilateral basis by the Vienna Convention, a reservation in itself provides ample justification for invoking reciprocity to rectify the imbalance that would otherwise be created in the relations between a reserving and a reacting state. This imbalance weighs in favor of the
reserving state even where doubts exist as to the compatibility of the reservation with the object and purpose of
the treaty.
It is surprising that, despite the importance of reciprocity and proportionality in the context of the remedies
for breach of a treaty, there is still much uncertainty as to the scope of countermeasures outside the specific rules
laid down in article 60 of the Vienna Convention. The regime established by that Convention, with its deliberate attempts to maintain the sanctity of treaties, would be undermined by a regime of countermeasures totally
unaffected by the limitations expressed in article 60.
From this point of view, the recent work of the International Law Commission is unfortunate. If there is any
consolation to be drawn from its reports it is that they deal with an area of international law of such uncertainty
that it is unlikely that some of the solutions proposed will command universal or even substantial support. In
any case, there is a degree of ambiguity in the Commission's work regarding the relationship between the countermeasures*399 sanctioned by the Draft Articles on State Responsibility and the Vienna Convention.
Ago's work as special rapporteur on part 1 of the Draft Articles proceeded on the hypothesis that the same
consequences followed from any breach of an international obligation, whatever its origins, and this approach
was obviously acceptable to the International Law Commission as a whole. [FN398] Taken to its logical conclusion, this view entails dramatic inroads into the principle of pacta sunt servanda in that the rules of state responsibility would provide alternative grounds for the suspension or termination of treaties. While part 2 of the Commission's Draft Articles does not fully implement the apparent implications of draft article 17 of part 1, the law
expressed in part 2 is not altogether clear on this matter. Thus, while there is a degree of similarity between the
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principles relating to multilateral treaties under article 60(2) of the Vienna Convention and draft article 11, part
2, the situation with regard to bilateral treaties in particular is uncertain.
This uncertainty derives from a number of sources. First, there is the obscurity of draft article 16, whereby
the provisions of the present articles are not to prejudge any question arising with regard to the termination
and suspension of the operation of treaties. [FN399] Second, there is the issue of the general relationship
between the two regimes exemplified by draft articles 8 and 9.
The appearance of the principle inadimplenti non est adimplendum in draft article 8 is something of a curiosity. It may be, as Anzilotti asserted, [FN400] a general principle of law, but it is essentially a principle relating
to cognate obligations which are more often to be found, as in the Meuse case, in treaty relationships. By their
very nature such obligations cannot arise independently. [FN401] *400 Accordingly, it would make more sense
to regard the principle as forming part of the law of treaties within which it has its main field of application.
Viewed in this light, it is a pity that the principle was not expressed in the Vienna Convention. However,
there is an alternative analysis. It is possible to regard the interrelated obligations described in draft article 8 as
carrying an implied promise of reciprocity: the performance of one is dependent upon performance of the other. It is thus feasible to ascribe the link between the obligation and its consequences to the intention of the
parties. It is then an issue of fact as to whether the link exists.
This latter approach has a number of advantages. First, there is no need to question its omission from the
Vienna Convention because the operation of such a principle is dependent entirely upon the intentions of the
contracting parties. For the same reason, there is no need to identify such a rule as part of the law of state responsibility. Such an interrelationship of obligations is dependent upon the intentions of the parties creating
them, even if the obligations in question do not, in a formal sense, constitute a treaty between the states concerned.
Second, the rule as expressed in draft article 8 has been challenged on the ground that it is in effect part and
parcel of the general principle governing reprisals set out in draft article 9. [FN402] The problem with this suggestion is that, if accepted, it signifies that the general law of state responsibility can impinge on the Vienna
Convention by providing an extraneous ground for non-performance of a treaty. Under the intention of the
parties approach, draft article 8 would be unnecessary, and the principle it purports to express would not be considered part of draft article 9.
The third advantage of this interpretation is that the integrity of the Vienna Convention can be preserved. Viewing the law from the perspective of state responsibility, a state is entitled, by way of reprisal, to
suspend the performance of its other obligations [FN403] (in this context, its non-treaty obligations) in response
to a breach of a treaty. However, as draft article 9(2) provides, this power is subject to the overriding principle
of proportionality: The exercise of *401 this right by the injured State shall not, in its effects, be manifestly disproportional to the seriousness of the internationally wrongful act committed. [FN404] With this article, there
would be no need to regard the extension of article 42(2) of the Vienna Convention to the suspension of treaties
as misplaced. In other words, the United States' perception of the law in Air Services Agreement [FN405] would
be justified. The suspension of treaty rights could thus be available either under the Convention or because the
parties intended to create reciprocally interdependent rights. As far as treaty termination is concerned, while the
latter route might produce a situation of de facto termination, formal termination should only be possible in accordance with the Convention.
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An alternative approach would accept that the prescription on suspension in article 42(2) is unrealistic if applied to the general right to take countermeasures, but insist that suspension of a treaty for a breach of an obligation external to the treaty can only occur if the breach is sufficiently serious. This principle seems to be implicit
in the European reaction to the circumstances of the Tehran hostages crisis. It was necessary not only to demonstrate a sufficient degree of seriousness to justify countermeasures by a sub-group but also to justify the actions
that the sub-group took. Those measures, involving the breaking of commercial contracts, [FN406] would undoubtedly, if implemented, have been in derogation from undertakings given in any commercial treaty of friendship that may have existed between the countries in question. [FN407] As it was the European view that their actions were in accordance with international law, presumably they believed that they were entitled to put *402 the
obligations in such treaties into temporary abeyance. In other words, countermeasures against private rights protected by treaty were justified by the seriousness of the breaches of a different treaty regime.
While proportionality remains at the heart of reactions to breaches of international obligations as defined by
draft article 9, and reciprocity constitutes the justification for the rule expressed in draft article 8, logical and
practical difficulties remain in the context of termination and suspension under article 60 of the Vienna Convention. The requirement that, in line with the principle of proportionality, only serious breaches of a treaty should
give rise to a right of termination or suspension has not been translated into the law of materiality under the
definition provided by article 60(3). It is entirely foreseeable that a minor breach of a provision essential to the
accomplishment of the object or purpose of a treaty might not affect the attainment of that object or purpose.
Moreover, it is equally likely that an accumulation of breaches of less important terms could make further adherence to the treaty unacceptable in the view of the injured state.
Overall, a state reacting to a breach is primarily concerned about the seriousness of the breach and its consequences. The nature of the provision broken may not be of critical importance. When it comes to the remedy
of termination or suspension, however, the concept of materiality links the rights of the reacting state exclusively to the nature of the provision rather than to the consequences of the breach. This artificial approach places
an unrealistic emphasis on a legalistic formula that is not easy to apply (what is a provision essential to the accomplishment of the object or purpose of a treaty?), rather than on the practical effects of the breach for the
parties involved.
The more complex the treaty, the less easy it will be to identify its object and purpose. For this reason, and
because of the way in which section 2 of part II of the Vienna Convention is drafted with regard to reservations,
it is likely that incompatibility with the object and purpose of a treaty under article 19(c) will constitute essentially a subjective rather than an objective test of validity. In contrast, section 4 of part V of the Vienna Convention was intended to introduce a means of objective assessment into the procedures of treaty termination or suspension. As things stand, [FN408] *403 such objectivity is absent from the processes of state responsibility, unless agreed to individually by states. There is thus an additional reason for protecting article 60 from the subjectively assessed reactions to treaty breaches made available under the law of state responsibility.
There is a manifest danger in the uncertainty surrounding the right of parties to a multilateral treaty to take
countermeasures against a state breaking the treaty, particularly where the breach in question does not directly
affect the parties taking countermeasures. Although such actions might be acceptable in response to breaches of
obligations erga omnes, it is more controversial to permit such measures for breaches of lesser obligations. Nevertheless, all parties may have a sufficient interest in the regime established by the treaty to be entitled to take retaliatory action for a serious breach. The scope of this right will depend on the terms of the particular treaty [FN409] and, subject to the doubts already expressed about the right of suspension, on the restric-
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tions placed upon the reacting states by the Vienna Convention.
[FNa]. Robert Garran Professor of Law, The Australian National University.

[FN1]. See Patrick S. Atiyah, The Rise and Fall of Freedom of Contract 1, 149-52 (1979).
[FN2]. D.W. Greig & J.L.R. Davis, The Law of Contract 1201-03, 1208-13 (1987).
[FN3]. Id. at 1203-08.
[FN4]. Id. at 1351-52.
[FN5]. Case 181/84, Regina v. Intervention Bd. for Agric. Produce, ex parte E.D. & F. Man (Sugar), Ltd., 1985
E.C.R. 2889, 3 C.M.L.R. 759 (1985).
[FN6]. Id. at 2903-06, 3 C.M.L.R. at 771-74 (1985).
[FN7]. Treaty Establishing the European Economic Community [EEC Treaty].
[FN8]. Case 149/79, Re Public Employees: E.C. Comm'n v. Belgium, 1980 E.C.R. 3881, 2 C.M.L.R. 413
(1981); see David O'Keeffe, Judicial Interpretation of the Public Service Exception to the Free Movement of
Workers, in Constitutional Adjudication in European Community and National Law 89, 103 (Deirdre Curtin &
David O'Keeffe eds., 1992) (The ruling [in E.C. Comm'n v. Belgium] is an application of the principle of proportionality.). For applications of the principle in contexts other than public employment, see Case 118/75,
State v. Watson, 1976 E.C.R. 1185, 2 C.M.L.R. 552 (1976) (discussing community law governing aliens); Case
222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, 1986 E.C.R. 1651, 3 C.M.L.R. 240
(1986) (discussing sex discrimination).
[FN9]. See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium, 45
I.L.R. 114, 200 (Eur. Ct. of H.R. 1968); Lingens v. Austria, App. No. 9815/82 , 8 Eur. H.R. Rep. 407, 418
(1986); see also Attorney-General v. Guardian Newspapers Ltd, [1990] 1 App. Cas. 109, 158-59, 178, 203, 219,
283-84 (appeal taken from Eng.) (citing the use of a standard of proportionality by the European Court of Human Rights); The Observer and The Guardian v. United Kingdom, App. No. 13585/88, 14 Eur. H.R. Rep. 153,
193-94 (1991).
[FN10]. See Council of Civil Serv. Unions v. Minister for the Civil Serv., [[[1985] App. Cas. 374, 410 (appeal
taken from Eng.) (Lord Diplock).
[FN11]. Regina v. Secretary of State for the Home Dep't, ex parte Brind, [[[1991] 1 App. Cas. 696, 697 (appeal
taken from Eng.).
[FN12]. In the words of Lord Diplock, by irrationality' I mean what can by now be succinctly referred to as
Wednesbury unreasonableness' .... It applies to a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his mind to the question to be decided could
have arrived at it. Council of Civil Service Unions, [1985] App. Cas. at 410. This is a somewhat exaggerated
version of Associated Provincial Picture Houses Ltd v. Wednesbury Corp, [1948] 1 K.B. 223, where Lord
Greene MR said that the decision must be proved to be unreasonable in the sense that the court considers it to
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be a decision that no reasonable body could have come to. Id. at 230.
[FN13]. See, e.g., Brunswick Corp. v. Stewart, 65 C.L.R. 88, 97 (1941) (Austl.); Parramatta City Council v. Pestell, 128 C.L.R. 305, 314, 327 (1972) (Austl.); Prasad v. Minister for Immigr. and Ethnic Affairs, 7 Admin. L.
Notes 79, 82 (Fed. Ct. of Austl. 1985); Minister for Immigration and Ethnic Affairs v. Chan Yee Kin, 15 Admin.
L. Decisions 751, 753 (Fed. Ct. of Austl. 1988).
[FN14]. See Williams v. City of Melbourne, 49 C.L.R. 142, 155 (1933) (Austl.).
[FN15]. South Australia v. Tanner, 166 C.L.R. 161, 165 (1989) (Austl.) (citing Commonwealth v. Tasmania,
158 C.L.R. 1, 260 (1983) (Austl.) (Deane, J.)). Compare Nationwide News Pty. Ltd. v. Wills, 177 C.L.R. 1, 29
(1992) (Austl.) (Mason, C.J.) (reasserting the concept of reasonable proportionality as a test which governs
the validity of statutes) with id. at 88-89 (Dawson, J.) (arguing for judicial restraint in the use of the concept of
reasonable proportionality). Compare Australian Capital Television Pty. Ltd. v. Commonwealth, 177 C.L.R.
106, 143-44 (1992) (Austl.) (Mason, C.J.) (discussing proportionality in the context of free communication) and
id. at 157-62 (Brennan, J.) (applying a test of proportionality), with id. at 195 (Dawson, J.) (noting that the test
of proportionality can be misleading). See generally P.W. Young, Proportionality, 67 Austl. L.J. 388, 388-89
(1993) (discussing recent Australian case law addressing the principle of proportionality).
[FN16]. Thus, the primary rule for the award of damages in contract is not expressed in terms of proportionality
but in the form that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do
it, to be placed in the same situation, with respect to damages, as if the contract had been performed. Robinson
v. Harman, 154 Eng. Rep. 363, 365 (Ex. 1848); see Johnson v. Agnew, 1980 App. Cas. 367, 400 (appeal taken
from Eng.); Pennant Hills Restaurants Pty Ltd v. Barrell Inss. Pty Ltd, 145 C.L.R. 625, 637 (1981) (Austl.).
Note also Arthur Lenhoff's comments:
Later the concepts and rules which the abstract idea generated supplanted it completely; having fulfilled its historical function, the idea merged with specific legal norms. As examples one need only think of the concept of
consideration, the principle of mutual dependency of the promises of the parties, the mutuality-of-remedy rule
(however modified at present), the equitable rule refusing any aid to a volunteer, and the remedies against unjust
enrichment.
Arthur Lenhoff, Reciprocity: The Legal Aspect of a Perennial Idea, 49 Nw. U. L. Rev. 619,
620 (1954). It may be, however, that proportionality will be given wider significance in Australia. In addition
to its application as a limitation on governmental or administrative action (see supra note 15), in Commonwealth
v. Verwayen, 170 C.L.R. 394 (1990) (Austl.), Mason, C.J., and Deane, J., employed such a test as a means of assessing the appropriate relief in a case of promissory estoppel. Id. at 403, 417, 441, 447. For the assertion of
proportionality as a basic principle of sentencing law, see Hoare v. The Queen, 167 C.L.R. 348, 354 (1989)
(Austl.) and Richard G. Fox, The Meaning of Proportionality in Sentencing, 14 Melb. U. L. Rev. 489 (1994).
[FN17]. Diplomatic Privileges and Immunities, 26 Am. J. Int'l L. 15, 26 (Supp. 1932) (part I of a set of draft
conventions prepared for the codification of international law); see also Salm v. Frazier (Ct. App. of Rouen
1933), reprinted in 28 Am. J. Int'l L. 382 (1934) (discussing reciprocal guarantees of diplomatic immunity).
[FN18]. See The Parlement Belge, 5 P.D. 197, 214-15 (1880).
[FN19]. Report of the International Law Commission on the Work of Its Thirty-Second Session (5 May-25 July
1980), [1980] 2 Y.B. Int'l L. Comm'n, pt. 2, at 146 [hereinafter 1980 Report] (citing Recueil general des lois et
des arrets 93 (1849)).
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[FN20]. Compania Naviera Vasongado v. Steamship Cristina, 1938 App. Cas. 485 (appeal taken from Eng.).
[FN21]. Id. at 502-03.
[FN22]. 1785 Treaty of Amity and Commerce, U.S.-Prussia, art. XXIII, reprinted in 1 The Law of War: A Documentary History 150-51 (Leon Friedman ed., 1972) [hereinafter The Law of War].
[FN23]. Quoted in Allan Rosas, The Legal Status of Prisoners of War 56 (1976) (citation omitted).
[FN24]. 5 Recueil des Principaux Traites 368 (Charles de Martens ed., 2d ed. 1826).
[FN25]. Id. at 361.
[FN26]. Id. at 371-72.
[FN27]. Rosas, supra note 23, at 67-68. A provision to this effect also formed part of the 1785 Treaty between
the United States and Prussia. See 1785 Treaty of Amity and Commerce, supra note 22, art. XXIII, at 150.
[FN28]. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of August 12, 1949, art. 1, 6 U.S.T. 3114, 3116, 75 U.N.T.S. 31, 32; Geneva Convention for
the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of August 12, 1949, art. 1, 6 U.S.T. 3217, 3220, 75 U.N.T.S. 85, 86; Geneva Convention Relative to the Treatment of
Prisoners of War of August 12, 1949, art. 1, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 136; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, art. 1, 6 U.S.T. 3516, 3518, 75
U.N.T.S. 287, 288 [hereinafter collectively the Geneva Conventions of August 12, 1949].
[FN29]. See the Geneva Conventions of August 12, 1949, common art. 3, 6 U.S.T. 3116, 3220, 3318, 3518, 75
U.N.T.S. 32, 86, 136, 288.
[FN30]. Second Report, [1957] 2 Y.B. Int'l L. Comm'n 16, 54 (G.G. Fitzmaurice, special rapporteur).
[FN31]. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951
I.C.J. 15, 23 (May 28).
[FN32]. Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5).
[FN33]. Id. at 32 (citation omitted).
[FN34]. Reservations, 1951 I.C.J. at 15.
[FN35]. See id. (referring to G.A. Res. 96(I), U.N. Doc. A/64, at 188-89 (1947)).
[FN36]. See the Geneva Conventions of August 12, 1949, common arts. 1, 3, 6 U.S.T. 3116, 3220, 3318, 3518,
75 U.N.T.S. 32, 86, 136, 288.
[FN37]. Id.
[FN38]. Id. art. 3.
[FN39]. Id.
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[FN40]. Id.
[FN42]. Rene-Jean Wilhelm, Probl'emes Relatifs 'a la Protection de la Personne Humaine par le Droit International dans les Conflits Armes ne Presentant pas un Caract'ere International, 137 Recueil des Cours d'Academie
de Droit International 311, 367 (1972) [periodical hereinafter R.C.A.D.I.].
[FN43]. South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 I.C.J. 6, 28-29 (July 28) .
[FN44]. Barcelona Traction, 1970 I.C.J. at 32.
[FN45]. See Memorial of Australia (Austl. v. Fr.), 1973 I.C.J. Pleadings (1 Nuclear Tests) 247, 334-35 (Nov.
23); Memorial of New Zealand (N.Z. v. Fr.), 1973 I.C.J. Pleadings (2 Nuclear Tests) 143, 209-10 (Oct. 29).
[FN46]. At least this seems to be the import of certain passages in the Memorial of the Government of the Portuguese Republic (Port. v. Austl.) 161, 205 n.379 (Nov. 18, 1991) (East Timor) (as yet unreported), as evidenced
by Australia's objection in the Counter-Memorial of the Government of Australia (Port. v. Austl.) 118 (June 1,
1992) (East Timor) (as yet unreported): Portugal cannot bring these proceedings as a kind of actio popularis,
whether pursuant to a service public international or otherwise, unless it can show that an entitlement to do so
arises from the erga omnes character of the obligations which it asserts. The Counter-Memorial goes on to argue that not every erga omnes obligation creates a right of individual action by members of the international
community, and that the rights contended for by Portugal on behalf of the people of East Timor are not among
those that do give rise to such a right. Id. at 119.
[FN47]. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94 (June 27).
[FN48]. See supra notes 36-42 and accompanying text.
[FN49]. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, arts. 26, 31, 1155
U.N.T.S. 331, 340 [hereinafter Vienna Convention].
[FN50]. Such concepts are not limited to reservations: they can operate quite generally to establish an acceptance of the Court's jurisdiction, as in Corfu Channel (U.K. v. Alb.), 1948 I.C.J. 15 (Mar. 25); see Military and
Paramilitary Activities (Nicar. v. U.S.), 1984 I.C.J. 392, 410-13 (Nov. 26) (jurisdiction and admissibility); D.W.
Greig, Nicaragua and the United States: Confrontation over the Jurisdiction of the International Court, 62 Brit.
Y.B. Int'l L. 119, 161-65 (1991) (discussing estoppel and implied consent).
[FN51]. Relating to, for example, national or domestic jurisdiction as understood or determined by the declarant
state. See the declaration of France of Feb. 18, 1947, 1957-1958 I.C.J.Y.B. 199, and the declaration of the
United States of Aug. 14, 1946, id. at 212-13.
[FN52]. Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9 (July 6).
[FN53]. Id. at 24.
[FN54]. See Manley O. Hudson, The Permanent Court of International Justice 1920-1942, at 465 (1943); see
also C.H.M. Waldock, The Decline of the Optional Clause, 1955-56 Brit. Y.B. Int'l L. 244, 254-55 (citing and
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agreeing with Hudson, supra); Herbert W. Briggs, Reservations to the Acceptance of Compulsory Jurisdiction of
the International Court of Justice, 93 R.C.A.D.I. 223, 267 (1958) (noting that a reservation of reciprocity under
article 36(3) is unnecessary because reciprocity is a jurisdictional requirement under article 36(2)).
[FN56]. Interhandel (Switz. v. U.S.), 1959 I.C.J. 6 (Mar. 21).
[FN57]. Id. at 22 (quoting U.S. objection).
[FN58]. Id. at 23.
[FN59]. Id.
[FN60]. See Waldock, supra note 54, at 255. Its origin was thus quite distinct from the reciprocity arising with
respect to states accepting the same obligation under article 36(2). See id. at 257.
[FN61]. Declaration of Norway (deposited Dec. 19, 1956), 1956-1957 I.C.J.Y.B. 218.
[FN62]. Declaration of France (deposited Mar. 1, 1949), 1956-1957 I.C.J.Y.B. 213.
[FN63]. See the declarations of Denmark (deposited Dec. 10, 1956), 1956-57 I.C.J.Y.B. 212; the Dominican Republic (deposited Sept. 30, 1924), id.; Liberia (deposited Mar. 20, 1952), id. at 215 (though in this case the
wording was in relation to any other State ... which accepts the same obligation (i.e. subject to reciprocity));
Luxembourg (deposited Sept. 15, 1930), id. at 217; Mexico (deposited Oct. 28, 1947), id.; the Netherlands
(deposited Aug. 1, 1956), id. at 217; Panama (deposited Oct. 25, 1921), id. at 219; Thailand (deposited Sept. 20,
1929), id. at 222; Uruguay (deposited prior to Jan. 28, 1921), id. at 225.
[FN64]. The states whose declarations would properly be covered by the judgment would be those employing
the condition of reciprocity language without a reference to states accepting the same obligation -- Canada
(deposited Sept. 20, 1929), id. at 210; El Salvador (deposited prior to Jan. 28, 1921), id. at 213; New Zealand
(deposited Apr. 8, 1940), id. at 218 erratum; South Africa (deposited Sept. 13, 1955), id. at 223; United Kingdom (deposited Apr. 18, 1957), id. at 223 -- or those in which the acceptance of the obligation and the condition
of reciprocity were disjunctive -- China (deposited Oct. 26, 1946), id. at 211; Honduras (deposited May 24,
1954), id. at 214; the Philippines (deposited Aug. 28, 1947), id. at 220 -- or possibly so -- Columbia (deposited
Oct. 30, 1937), id. at 211.
[FN65]. Norwegian Loans, 1957 I.C.J. at 23.
[FN66]. See id. at 43-66 (separate opinion of Judge Lauterpacht); Interhandel, 1959 I.C.J. at 101-07 (dissenting
opinion of Judge Lauterpacht).
[FN67]. Norwegian Loans, 1957 I.C.J. at 73 (dissenting opinion of Judge Basdevant) (quoting Norwegian objection).
[FN68]. Military and Paramilitary Activities (Nicar. v. U.S.), 1984 I.C.J. 392 (Nov. 26) (jurisdiction and admissibility).
[FN69]. Letter from Secretary of State George P. Shultz to the Registrar of the International Court of Justice
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(Apr. 6, 1984).
[FN70]. Nicaragua, 1984 I.C.J. at 419.
[FN71]. Id.
[FN72]. Id. at 419-20.
[FN74]. Judge Basdevant criticized the Court's failure to examine the scope and consequences of Norway's invocation of the French reservation. Id. at 73-74 (dissenting opinion of Judge Basdevant).
[FN75]. Nicaragua, 1984 I.C.J. at 419-20.
[FN76]. Id. at 420.
[FN77]. See the comment of Judge Jennings, id. at 545 (The idea of applying reciprocity before seisin rather
than after -- or rather at seisin -- is, however, not free from difficulty and would be something of an innovation.
); and the comment of Judge Schwebel, id. at 627 (It must be acknowledged that to take this broad view of
reciprocity ... gives rise to complications.).
[FN78]. Right of Passage over Indian Territory (Port. v. India), 1957 I.C.J. 124, 146 (Nov. 26).
[FN79]. Nicaragua, 1984 I.C.J. at 420 (quoting Right of Passage, 1957 I.C.J. at 143).
[FN81]. Nicaragua, 1984 I.C.J. at 392.
[FN82]. Id. at 419.
[FN84]. See Waldock, supra note 54, at 280.
[FN85]. This occurred in Right of Passage, 1957 I.C.J. at 129, in which India protested in vain at the fact that
Portugal had submitted its declaration to the U.N. Secretary-General on December 19, 1955, and its application
to the Court on December 22, 1955.
[FN86]. After Portugal's application in Right of Passage, India, the United Kingdom, and some other countries
inserted a reservation into their declarations excluding
disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purposes of the dispute; or where the acceptance of the
Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than
twelve months prior to the filing of the application bringing the dispute before the Court.
Declaration of
the United Kingdom, reservation iii, 1968-1969 I.C.J.Y.B. 71 (effective from January 1, 1969).
[FN87]. Vienna Convention, supra note 49, art. 20(4) (noting that individual states may decide whether to accept
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a reservation, subject to the provisions of paragraphs 1-3).

[FN88]. Id. art. 20(4)(b).
[FN89]. See the objections made to the reservations to the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 19 I.L.M. 33, by the Federal Republic of Germany and Mexico, in
Multilateral Treaties Deposited with the Secretary-General 1992, at 60 (1993) [hereinafter Multilateral Treaties].
[FN90]. At common law, similar issues arise in relation both to provocation and self-defense: the force employed in reaction to the situation must be reasonable. The comment of Chief Justice Goddard that [f]ists might
be answered with fists, but not with a deadly weapon was made in a case of provocation. R. v. Duffy, [1949] 1
All E.R. 932, 933. It gives a flavor of the notion of proportionality, though it is not a hard and fast principle, the
ultimate test being whether the accused had reasonable grounds for believing that what he did was necessary for
his self-preservation. See Zecevic v. Director of Public Prosecutors, 162 C.L.R. 645 (1987) (Austl.), in which
the High Court of Australia held that excessive force, if used in self-defense without the intent to kill or do
grievous bodily harm, entitled a person to a conviction of manslaughter instead of murder; see also Stanley Yeo,
Proportionality in Criminal Defences, 12 Crim. L.J. 211 (1988).
[FN91]. See Military and Paramilitary Activities, 1986 I.C.J. 14, 94, 122-23 (June 27). The issue was also raised
in the Caroline incident (1837), 2 Moore, Digest of International Law 412 (1906), though it is not altogether
clear whether the dispute was exclusively on the international plane or whether the British government was arguing that the arrested British subject should be released because he was entitled to plead self-defense to charges
brought against him for the death of two United States citizens in the destruction of the vessel. See D.W. Greig,
International Law 883-86 (2d ed. 1976).
[FN92]. The International Court has on a number of occasions alluded to the connection between the proportionality of coastlines and the equitable delimitation of areas of continental shelf. See Continental Shelf (Libya v.
Malta), 1985 I.C.J. 13, 43-46 (June 3); Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 18, 75 (Feb. 24); North
Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 4, 52, 54 (Feb. 20).
[FN94]. See Guy Braibant, Le Principe de Proportionnalite, in 2 Melanges Offerts 'a Marcel Waline 297 (1974)
(citing Forsthoff, Traite de Droit Administratif Allemand 130 (1969)); Andre Grisel, Droit Administratif Suisse
40, 161 (Neuchatel/Suisse 1970); see also Mahendra P. Singh, German Administrative Law in Common Law
Perspective 90-92 (1985).
[FN95]. See Braibant, supra note 94, at 304, who suggests that, in certain areas, the French administrative courts
have been prepared to intervene on grounds similar to those expressed by the ILO Administrative Tribunal, employing expressions such as hors de toute proportion or disproportion manifeste. But see John Bell, The Expansion of Judicial Review Over Discretionary Powers in France, 1986 Pub. L. 99, 113-16 ([T]he notion [of
proportionality] is rarely invoked successfully. Id. at 115.). For a survey of the law of members of the European
Community, see Jurgen Schwarze, European Administrative Law 680-702 (1992).
[FN96]. Schwarze makes reference to an important body of case law on the subject of the proportionality principle which has, in varying degrees of intensity, affected virtually every area of administrative action governed
by Community laws and Community legislation. Schwarze, supra note 95, at 79.
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[FN97]. Case 4/73, J. Nold, Kohlen-und Baustoffgrosshandlung v. Comm'n of the European Communities, 1974
E.C.R. 491, 507-08, 2 C.M.L.R. 338, 354 (1994); see also Case 29/69, Stauder v. City of Ulm, 1969 E.C.R. 419,
428, C.M.L.R. 112, 115 (1970) (citing Nold and discussing general principles of Community law); Case 44/79,
Hauer v. Land Rheinland-Pfalz, 1979 E.C.R. 3727, 3744-45, 3 C.M.L.R. 42, 53-54, 64 (1980) (discussing general principles of Community law); Schwarze, supra note 95, at 710-26. For the principle's application in European
case law, see id. at 726-864.
[FN98]. See Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorrsatsstelle fur Getreide und
Futtermittel, 1970 E.C.R. 1125, 1176, C.M.L.R. 255, 292 (1972) (expressing agreement with the first-instance
decision that the principles of freedom of commerce and proportionality .... which are intended to guarantee respect of fundamental rights are an integral part of international law and of supra-national law, such that a Community statute contrary to these concepts should be considered void).
[FN99]. See, e.g., Gregorio v. Int'l Bank for Reconstruction and Dev., Decision No. 14, [1983] World Bank Admin. Trib. Rep., para. 47, at 20 (The Tribunal has the authority to determine whether a sanction imposed by the
Bank upon a staff member is significantly disproportionate to the staff member's offense.); Report of the Commission of Inquiry to Examine the Observance of the Discrimination (Employment and Occupation) Convention
1958 (No. 111) by the Federal Republic of Germany, 70 Int'l Labour Off. Official Bull., ser. B, supp. 1, at 246
(1987); 1 C.F. Amerasinghe, The Law of the International Civil Service 292-96 (1988).
[FN100]. Different factors will operate at different times and in different places in assessing the fitness of a certain punishment. For the application of what amounts to the proportionality principle in this context, see Cox v.
Ireland 10 I.L.T.R. 53 (1991); see also Ferrecchia v. Int'l Ctr. for Advanced Technical and Vocational Training,
56 Int'l Labour Off. Official Bull. 179, 182 (1973) (the principle that the penalty should be proportionate to the
fault); Fox, supra note 16.
[FN101]. These responses are referred to under the rubric of retortion. See generally Elizabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures 5-19 (1984).
[FN102]. Relations might be curtailed by, for example, suspending negotiations for a prospective treaty or terminating existing treaty relations.
[FN103]. Retortion can also be a response to an act that is in breach of an obligation.
[FN104]. Denis Alland, International Responsibility and Sanctions: Self-Defence and Countermeasures in the
ILC Codification of Rules Governing International Responsibility, in United Nations Codification of State Responsibility 143, 150 (Marina Spinedi & Bruno Simma eds., 1987).
[FN105]. Peter Malanczuk wrote that a retortion is an unfriendly act against another State with the object to
persuade that State to end its harmful conduct. Peter Malanczuk, Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility,
in United Nations Codification of State Responsibility, supra note 104, at 197, 207.
[FN106]. The only reference to the promotion of friendly relations and co-operation among States in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No.
128, at 124, U.N. Doc. A/8082 (1970), was in relation to the principle of equal rights and self-determination of
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peoples. But see id. at 122 (noting several times, in the preamble, the great importance of the development of
friendly relations and co-operation among States).
[FN107]. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 135-36 (June 27).
[FN108]. Id. at 136.
[FN109]. Id. at 136-37.
[FN110]. Id. at 137.
[FN111]. Id.
[FN112]. Id. at 138.
[FN113]. Id.
[FN114]. Id.
[FN115]. For a discussion of the nature of this obligation, see Greig, supra note 50, at 254-73.
[FN116]. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951
I.C.J. 15, 21-22 (May 28).
[FN117]. The proposed rule was announced in draft article 16. Reports of the International Law Commission
on the Second Part of Its Seventeenth Session and on Its Eighteenth Session, [1966] 2 Y.B. Int'l L. Comm'n 169,
202 [[[hereinafter 1966 I.L.C. Reports].
[FN118]. That is, unrestricted treaties to which article 20(2) does not apply.
[FN119]. Vienna Convention, supra note 49, art. 19.
[FN120]. Id. art. 19(a).
[FN121]. Id. art. 19(b).
[FN123]. Vienna Convention, supra note 49, art. 19(c).
[FN124]. The three reasons for impermissibility are (1) that the reservation is prohibited; (2) that the treaty allows only specified reservations that do not include the one in question; and (3) that the reservation is incompatible with the object and purpose of the treaty. Vienna Convention, supra note 49, art. 19.
[FN125]. Reservations, 1951 I.C.J. at 24, 26.
[FN126]. Id. at 29.
[FN127]. See the examples given supra notes 85, 86, and 89. It is for this reason that, however theoretically correct the view might be that a reservation impermissible under article 19(c) is void and of no effect (see D.W.
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Bowett, Reservations to Non-Restricted Multilateral Treaties, 48 Brit. Y.B. Int'l L. 67, 83 (1976-77); Ian Sinclair, The Vienna Convention on the Law of Treaties 77, 81 n.78 (2d ed. 1984)), in practice the unlikelihood of
an objective determination of this fact leaves the reservation with a degree of subjective validity, see Charles
Chaumont, Cours General de Droit International Public, 129 R.C.A.D.I. 333, 448 (1970); J.M. Ruda, Reservations to Treaties, 146 R.C.A.D.I. 95, 190 (1975). See generally J.K. Koh, Reservations to Multilateral Treaties:
How International Doctrine Reflects World Vision, 23 Harv. Int'l L.J. 71, 95-107 (1982). A reacting state might
wish to protect itself against such implications along the lines surveyed in this section.
[FN128]. This distinction between the situation under article 19(a) and (b) and that under article 19(c) must be
treated with caution. It is possible to imagine a case in relation to (a) and (b) where general acceptance of the reservation would amount to an amendment of the treaty in accordance with article 39 of the Vienna Convention,
or where widespread acceptance could result in its modification in line with article 41 of that Convention. Modification of a treaty is subject to the limitation that it must not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. Vienna Convention,
supra note 49, art. 41(1)(b)(ii). Indeed, a modification of a treaty violating the treaty's object and purpose would
also be a violation of article 60. With regard to the situation under article 19(c), the International Court, in Reservations, 1951 I.C.J. at 26-27, admitted that there could be circumstances in which a reserving state is regarded as a party to a treaty by some participants despite the fact that, on an objective assessment, the reservation is incompatible with the object and purpose of the treaty, and the act to which it is attached is therefore invalid. If there are dispute settlement procedures capable of enabling a definitive resolution of the matter, it
would be open to an objecting state to challenge the validity and effectiveness of the ratification or other act of
which the reservation forms part. Id. at 27 (where the Court recognized that states might take their objections to
the assent given by others to a reservation to the jurisdictional plane); see also The Effect of Reservations on
the Entry into Force of the American Convention (Arts. 74 & 75), Inter-American Court of Human Rights, Advisory Opinion #OC-2/82, Sept. 24, 1982 (requested by the Inter-American Commission on Human Rights), reprinted in 22 I.L.M. 37, 49 (1983) (noting that while article 19(b) of the Vienna Convention refers to specified
reservations, article 20(1) contains no such restrictive language, thus permitting a treaty to authorize reservations in general). It might also be possible to establish, given appropriate machinery, that an attempt to accept
the validity of the act in question amounts to a material breach of the treaty by those involved in the attempt.
[FN129]. See, e.g., the objections made between 1977 and 1986 by the Soviet Union to the reservations by
Libya, Saudi Arabia, Qatar, and Yemen, and that of Poland in 1975 made with regard to the reservation of
Bahrain, to the Vienna Convention on Diplomatic Relations (Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95),
reprinted in Multilateral Treaties Deposited with the Secretary-General 1992, at 60 (1993) [hereinafter Multilateral Treaties]. Even more striking are cases where incompatibility is alleged, but a declaration is added by the
objecting state that this is not to prevent the treaty in question from entering into force between the objecting
and reserving state. See International Convention on the Elimination of All Forms of Racial Discrimination,
Mar. 7, 1966, 660 U.N.T.S. 195, reprinted in Multilateral Treaties, supra, at 107-08 (listing objections to reservations of Yemen by Denmark, Finland, France, Mexico, the Netherlands, and Sweden).
[FN130]. See the objections to the Syrian and Tunisian reservations to the Vienna Convention on Diplomatic
Relations (supra note 129), reprinted in Multilateral Treaties, supra note 129, at 816-19 (listing objections by Japan, the Netherlands, Sweden, and the United States).
[FN131]. Vienna Convention, supra note 49, art. 20(4)(b).
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[FN132]. The Convention provides that, unless the treaty otherwise provides, a reservation is considered to
have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or by the date on which it expressed its consent to be
bound by the treaty, whichever is later. Id. art. 20(5).
[FN133]. Id. art. 20(4)(b).
[FN134]. Vienna Convention, supra note 49, art. 21(1).
[FN135]. In a legal sense, that is. There are obviously many situations in which reciprocity will not produce a
substantive balance between reserving and accepting states. For example, under the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205, a reservation limiting the
right of innocent passage by a coastal state lacking a substantial fleet, or, under the Vienna Convention on Diplomatic Relations, supra note 129, a reservation limiting the scope of diplomatic immunity by a state having a
few small diplomatic missions in overseas countries, would have much more significant consequences for states
having a substantial fleet or large diplomatic representation in the reserving state.
[FN136]. The text of the reservations may be found in Dietrich Schindler & Jiri Toman, The Laws of Armed
Conflicts 576 (1988).
[FN138]. Id. at 24 (quoting French declaration).
[FN139]. Id. at 22.
[FN140]. Id. at 24.
[FN142]. See the reservations to the Genocide Convention of the Soviet Union, 190 U.N.T.S 381, Byelorussia,
196 U.N.T.S 345, the Ukraine, 201 U.N.T.S 368, and Hungary, 118 U.N.T.S 306. These reservations were withdrawn during 1989, see Multilateral Treaties, supra note 129, at 98 nn.10 & 13. For the position of the former
Czechoslovakia, see id. at 98 n.12.
[FN143]. The similarity is enhanced by the fact that an objection does not preclude the entry into force of the
treaty as between the objecting and the reserving States unless a contrary intention is definitely expressed by the
objecting State. Vienna Convention, supra note 49, art. 20(4)(b); cf. Frank Horn, Reservations and Interpretative Declarations to Multilateral Treaties 170-73 (discussing the history of the law of treaties with respect to reserving and objecting states, noting the concerns expressed by various scholars, and asserting that there was not
a clear desire among the parties to the Vienna Convention to assimilate rejected and accepted reservations).
[FN144]. Delimitation of the Continental Shelf (U.K. v. Fr.), 54 I.L.R. 6 (1979) (arbitral decision of June 30,
1977).
[FN145]. Id. at 40.
[FN146]. Id. at 48-50.
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[FN147]. Id. at 52.

[FN148]. Id.
[FN149]. Id.
[FN150]. See for example the objections made by Israel, Italy, and the United Kingdom to the reservation of
Burundi to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons including Diplomatic Agents (Dec. 14, 1973, 28 U.S.T. 1975, 1035 U.N.T.S. 167), reprinted in Multilateral
Treaties, supra note 129, at 89-90. The People's Republic of China was the only state that took its objections to
reservations excluding the jurisdiction of the International Court under article IX of the Genocide Convention so
far as to declare that it would not regard those states as being parties to the Convention. Id. at 102.
[FN151]. See Delimitation of the Continental Shelf, 54 I.L.R. at 54, 66, 68; supra note 47 and accompanying
text.
[FN152]. Convention on Diplomatic Relations, supra note 129, art. 27(1), (2).
[FN153]. See the reservations of Kuwait, Libya, Qatar, Saudi Arabia, and Yemen, to the Vienna Convention on
Diplomatic Relations (supra note 129), reprinted in Multilateral Treaties, supra note 129, at 55-56, 59.
[FN154]. Id. at 53.
[FN155]. Not all of the Arab reservations were declared invalid. For example, see the reactions of Australia,
Canada, Czechoslovakia, France, Poland, and the United Kingdom. Id. at 57-60, 62-63.
[FN156]. The objections of Czechoslovakia, the Netherlands, Poland, Hungary, the Ukraine, and the Soviet Union, id. at 59-62, referred to the inviolability of the diplomatic bag as being recognised in international practice.
A similar reaction was forthcoming from the Netherlands to reservations to articles 11(1) and 37(2). Id. at 59-60
(referring to customary international law).
[FN157]. See, in relation to the Vienna Convention on Diplomatic Relations, supra note 129, the objections of
Australia, Canada, Denmark, France, Hungary, Ireland, Mongolia, New Zealand, Ukraine, the Soviet Union, and
the United Kingdom. Id. at 57-63.
[FN158]. See, in the context of the same Convention, the objections of Czechoslovakia, France, Hungary, Japan,
Mongolia, Poland, and the Soviet Union. Id. at 59-63. In the context of the 1966 Convention on the Elimination
of All Forms of Racial Discrimination, supra note 129, see the objection of Mexico, reprinted in Multilateral
Treaties, supra note 129, at 117.
[FN159]. In relation to the Vienna Convention on Diplomatic Relations, supra note 129, see the objections of
Belgium, Czechoslovakia, and the Federal Republic of Germany, reprinted in Multilateral Treaties, supra note
129, at 58-60. In relation to the 1966 Convention on the Elimination of All Forms of Racial Discrimination,
supra note 129, see the objections of Australia, Belgium, Denmark, the Federal Republic of Germany, the Netherlands, New Zealand, and Sweden, reprinted in Multilateral Treaties, supra note 129, at 115-17.
[FN160]. See Australia's reaction to the reservation of Yemen to the Convention on Diplomatic Relations (supra
note 129), reprinted in Multilateral Treaties, supra note 129, at 57-58; Ireland's reaction to the reservation by the
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People's Republic of China to articles 14 and 16 of that Convention, reprinted in id. at 61.
[FN161]. See the objections of New Zealand to the reservations of China and Yemen, reprinted in id. at 62.
[FN164]. An example is the December 31, 1989 situation under the 1966 Convention on the Elimination of All
Forms of Racial Discrimination, supra note 129. Of the 128 parties, only 13 had made declarations objecting to
(most of them challenging the validity of) Yemen's reservations to article 5 of the Convention. See Multilateral
Treaties, supra note 129, at 106-07, 115-18. Similarly, there would seem to be fundamental objections to the
second U.S. reservation to the 1948 Genocide Convention that nothing in the Convention requires or authorises
legislation or other action by the United States prohibited by the Constitution of the United States as interpreted
by the United States. Id. at 101. Yet there were few objections (by Denmark, Finland, Italy, the Netherlands,
Norway, Spain, and the United Kingdom, id. at 102-04). It is surprising that Australia, given its usual approach
to testing the validity of reservations to human rights conventions, should have remained silent on this occasion.
[FN165]. However, a voting or collegiate system has occasionally been proposed. See, e.g., Law of Treaties
Report, [1956] 2 Y.B. Int'l L. Comm'n 115 (G.G. Fitzmaurice, special rapporteur); First Report on the Law of
Treaties, [1962] 2 Y.B. Int'l L. Comm'n 65-66 [hereinafter Waldock, First Report] (Sir Humphrey Waldock, special rapporteur).
[FN166]. Failure to object signifies assent, either by virtue of the twelve-month period provided for in the Vienna Convention, supra note 49, art. 20(5), or in virtue of the very great allowance in international practice for
tacit assent to reservations of which the International Court spoke in Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 21 (May 28).
[FN167]. See Vienna Convention, supra note 49, art. 44.
[FN168]. Id. art. 44(3)(b).
[FN169]. See Greig & Davis, supra note 2, at 370-73.
[FN171]. Id. at 56-57.
[FN172]. Id. at 59.
[FN173]. See Greig & Davis, supra note 2, at 1110-14.
[FN174]. Waldock, First Report, supra note 165, at 65-66. The Commission was of course employing some
rather strange terminology. The terms subjective and objective were being applied not to a test but to the
question of whether the test had been satisfied. There is nothing remotely objective about the freedom of a reacting state to decide for itself whether to accept or object to a reservation.
[FN175]. Case Concerning the Air Services Agreement of 27 March 1946, 54 I.L.R. 304, 338 (1979) (arbitration
tribunal established by the Compromis of July 11, 1978).
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[FN177]. 1966 I.L.C. Reports, supra note 117, at 255.
[FN178]. One author has suggested that a rule permitting termination for any breach was consistent with the
views of most early twentieth century writers. Frederic L. Kirgis, Jr., Some Lingering Questions about Article
60 of the Vienna Convention on the Law of Treaties, 22 Cornell Int'l L.J. 551, 555 (1989) (citing, inter alia, 1
L. Oppenheim, International Law 756 (4th ed. 1928)). However, this was at most a majority view. Thus, the
Oppenheim text stated that there was no unanimity among writers on International Law ... since a minority
made a distinction between essential and non-essential stipulations of the treaty, and maintain that only a violation of essential stipulations creates a right for the other party to cancel the treaty. 1 L. Oppenheim, International Law 756 (4th ed. 1928). For writers who did support the minority view, see William E. Hall, A Treatise
on International Law 352-53 (3d ed. 1890); 1 Pitt Cobbett, Cases on International Law 362 (6th ed., 1947).
Part of the problem is that it was not always clear whether the writers were addressing the question as an issue
of treaty law or as one of state responsibility. The dividing line is still a matter of doubt.
[FN179]. See the example given by Thomas J. Lawrence, The Principles of International Law 305-06 (7th ed.
1930), of the proclaimed extension by the Austro-Hungarian Empire of its sovereignty over Bosnia and
Herzegovina which it had administered for thirty years under the Treaty drawn up by the Congress of Berlin in
1878. This extension had to be approved by other powers in diplomatic exchanges in order to be effective. As
recent events demonstrate, the international community still claims the authority, through the Security Council
or otherwise, to determine the validity of territorial changes wrought in breach of a treaty or other norms of international law.
[FN180]. According to this provision:
A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties.
Vienna Convention, supra note 49, art. 60(2)(a).
[FN181]. See infra section III(B)(2).
[FN182]. Vienna Convention, supra note 49, art. 60(3)(b). A material breach also occurs with a repudiation of
the treaty not sanctioned by the present Convention. Id. art. 60(3)(a).
[FN183]. See Arnold D. McNair, The Law of Treaties 474-75 (1961).
[FN185]. Id. art. 44(a).
[FN186]. Id. art. 60(3)(b).
[FN187]. Id. art. 44(3).
[FN188]. Consideration of the Question of the Law of Treaties in Accordance with Resolution 2166(XXI) Adopted by the General Assembly on 5 December 1966, Vienna Conference on the Law of Treaties Official Re-
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cords, 1st Sess., 42d mtg. at 233, 237, U.N. Doc. A/CONF.39/11 (1969) [hereinafter 1968 Vienna Conference
Official Records].
[FN189]. Waldock stated:
The problem in cases of breach is not so much whether the injured party may be entitled to limit its act of denunciation or suspension to parts only of the treaty, but whether, despite the material character of the breach,
the injured party may in any circumstances be bound to limit its act of denunciation or suspension to those provisions, or to that part, of the treaty to which the breach relates.
Second Report on the Law of Treaties,
[1963] 2 Y.B. Int'l L. Comm'n 36, 90 [ [ [hereinafter Waldock, Second Report] (Sir Humphrey Waldock, special
rapporteur).
[FN190]. Waldock also noted:
The logical solution here seems to be to regard each part as a separate treaty for the purpose of applying the
rules of essential validity and termination ... provided always that the parts really are independent of each other
and that the contracting States did not regard acceptance of one part as an essential condition of the acceptance
of the other part.
Id. at 93. Despite the reference only to validity and termination, the passage undoubtedly was implicitly referring to suspension, which was expressly covered in draft article 26 on the Law of
Treaties, to which this part of the commentary related.
[FN191]. In fact, the case law all concerned different parts of the Treaty of Versailles: Free Zones of the Upper
Savoy and the District of Gex (Fr. v. Switz.), 1932 P.C.I.J. (ser. A/B) No. 46, at 140 (June 7); Competence of
the International Labour Organization to Regulate, Incidentally, the Personal Work of the Employer, 1926
P.C.I.J. (ser. B) No. 13, at 18 (July 23); S.S. Wimbledon (Brit., Fr., Italy, Japan v. Germany), 1923 P.C.I.J.
(ser. A) No. 1, at 24 (Aug. 17); Advisory Opinion No. 2, 1922 P.C.I.J. (ser. B) No. 2, at 21-25 (Aug. 12)
(Competence of the International Labour Organisation to Regulate the Conditions of Labour of Persons Employed in Agriculture).
[FN192]. Diversion of Water from the Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70 (June 28).
[FN193]. Id. at 21.
[FN194]. Id. at 38.
[FN195]. Id. at 38.
[FN196]. Id.
[FN197]. Certain Norwegian Loans (Fr. v. Nor.), 1957 I.C.J. 9, 56 (July 6); see supra text accompanying note
171 (quoting Judge Lauterpacht).
[FN198]. On the power to sever and delete a meaningless word or clause in a contract, see Greig & Davis, supra
note 2, at 370-73.
[FN199]. Id. at 1113-14. To be fair to Lauterpacht, he was not the only member of the International Court to regard his approach as the correct one. In Interhandel (Switz. v. U.S.), 1959 I.C.J. 6 (Mar. 21), in which Lauterpacht in dissent reiterated his views, id. at 116-17, Judge Spender held that the U.S. automatic reservation was
not severable from the rest of the U.S. declaration because the former was not a mere term but an essential condition of the United States Acceptance. Id. at 57 (separate opinion of Judge Spender). Three judges (Klaestad,
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Armand-Ugon, and Judge ad hoc Carry) were prepared to sever the reservation, on the principal ground that the
prime intention of the United States had been to make a valid declaration and that the instrument should be interpreted accordingly. See, e.g., Klaestad's dissenting opinion, id. at 77-78.
[FN200]. Under draft article 25 a party seeking to terminate or suspend its treaty obligations under a right
arising by operation of law had to give notice of its claim to the other party or parties to the treaty. Waldock,
Second Report, supra note 189, at 86-87. By article 26:
3. (a) A notice framed under article 25 and invoking a ground which relates exclusively to one part of a treaty
shall be limited so as to apply only to such part, if -(i) the provisions of that part are, in their operation,
self-contained and wholly independent of the remainder of the treaty (general provisions and final clauses excepted); and
(ii) acceptance of that part was not made an express condition of the acceptance of other parts either by
a term in the treaty itself or during the negotiations.
(b) Subject to paragraph 4, the notice shall apply to the whole of such part and not be limited to particular provisions.
4. A notice framed under article 25 and invoking a ground relating exclusively to one provision of a
treaty shall be limited so as to apply exclusively to that provision, if -(a) the provision in question is, in its operation, wholly independent of the other provisions of the treaty
(general provisions and final clauses excepted); and
(b) the provision is one with regard to which it is permissible to make reservations under article 18,
paragraph 1, of part I.
Id. at 90.
[FN201]. Admissibility of Hearings of Petitioners by the Committee on South West Africa, 1956 I.C.J. 23 (June
1).
[FN202]. Id. at 49.
[FN203]. Waldock, Second Report, supra note 189, at 92 (noting that other members of the Court adopted a
somewhat different approach to the case).
[FN204]. 1966 I.L.C. Reports, supra note 117, at 255.
[FN205]. Id. at 253 (draft article 57).
[FN206]. Waldock, Second Report, supra note 189, draft art. 20(2), at 73. Draft article 20(2) went on to state, in
relevant part:
A material breach of a treaty results from -(a) a repudiation of the treaty by a representative or organ
of the State competent to express the will of the State to denounce the treaty;
(b) a breach so substantial as to be tantamount to setting aside any provision -(i) with regard to which the making of reservations is expressly prohibited or impliedly excluded under
article 18, paragraph 1(a), (b) and (c) of part I; or
(ii) the failure to perform which is not compatible with the effective fulfilment of the object and purpose of the treaty.
Id.
[FN207]. The International Law Commission's comments on sub-paragraph 3(b) of draft article 57, which em-
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ployed language identical to what became article 60(3)(b), were not particularly helpful: The other and more
general form of material breach is that in sub-paragraph (b), and is there defined as a violation of a provision essential to the accomplishment of any object or purpose of the treaty. 1966 I.L.C. Reports, supra note 117, at 255
(emphasis added).
[FN208]. According to article 1:
The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principles of equal rights and
self-determination of peoples, and to take other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
U.N. Charter art. 1(1)-(4). The Preamble to the Charter suggests an additional purpose: to promote
conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained.
[FN209]. Diversion of Water from the Meuse, 1937 P.C.I.J. (ser. A/B) No. 70 (June 28); see supra text accompanying notes 192-96.
[FN210]. Id. at 38 (separate opinion of Judge Altamira).
[FN211]. Id. at 38-39.
[FN212]. Id. at 46 (dissenting opinion of Judge Anzilotti); see, to similar effect, Interpretation of the Convention
of 1919 Concerning Employment of Women During the Night, 1932 P.C.I.J. (ser. A/B) No. 50, at 383 (Nov. 15).
[FN213]. Diversion of Water from the Meuse, 1932 I.C.J. at 46 (dissenting opinion of Judge Anzilotti).
[FN214]. Id.
[FN215]. See supra note 207.
[FN216]. See, e.g., the comment of the Spanish representative:
The rule stated in that sub-paragraph was reasonable; his delegation fully supported it, but feared that it was expressed in a manner open to an unduly narrow interpretation. For a treaty might contain provisions which, although not essential to the accomplishment of its object or purpose, were essential for one or more parties in respect of the obligation contracted.
1968 Vienna Conference Official Records, supra note 188, at 353
(emphasis added).
The potential for confusion was also evident in Waldock's response to the discussion, when he first said
that [t]he notion of a material breach must be limited by a reference to the essential purposes of the treaty, and,
in the following paragraph suggested that a Finnish amendment was unlikely to be of much assistance since the
serious character of the breach would have to be judged in relation to some criterion and that criterion would
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naturally seem to be the essential object and purpose of the treaty. Id. at 359 (emphasis added). It was this view
that prevailed over the Finnish attempt to expand the definition along the following lines:
The provision that such a breach consisted in the violation of a provision essential to the accomplishment of the
object or purpose of the treaty seemed insufficient: it was equally important to take into account the nature or
degree of the violation itself. Even if a violation did not make it difficult or impossible to accomplish the object
or purpose of a treaty, it might prejudice important rights of the innocent parties if it continued for a long time;
similarly, if one of the parties violated several secondary provisions of the treaty, simultaneously or successively, that attitude might be described as a serious violation and should entitle the other parties to resort to the
measures set out in paragraph 2.
Id. at 352.
[FN217]. Tacna-Arica Question (Chile v. Peru), 2 Rep. Int'l. Arb. Awards 921 (1925) (Special Agreement, Protocol of Arbitration between Chile and Peru, July 20, 1922).
[FN218]. 1966 I.L.C. Reports, supra note 117, at 254 (quoting Tacna-Arica, 2 Rep. Int'l Arb. Awards at 943-44).
[FN219]. See supra note 177 and accompanying text.
[FN220]. The treaty also had another major purpose, which was to deal with the three Peruvian provinces in
Chilean hands as a result of the war. The three provinces were Tacna, Arica, and Tarapaca. Tarapaca was ceded
to Chile under article 2 of the treaty.
[FN221]. Compare Nicaragua's argument that the United States had breached its obligation not to act in a manner tending to defeat the object and purpose of the 1956 Treaty of Friendship, Commerce and Navigation
between the two states. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 3, 125-28 (June 27); see
supra notes 108-14 and accompanying text.
[FN222]. The consequence might also be limited to the obligations of articles 2 and 3.
[FN223]. Cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16, 46-47 (June 21).
[FN224]. This point will be examined in the next section. See infra section III(B)(3).
[FN225]. In addition to the material cited supra note 216, consider also the statement of a Jamaican representative that
his delegation found it difficult to understand how it could logically be stated in article 57 that a material breach
of a treaty could be invoked as a ground for terminating it in part only. Since the breach related to a provision
essential to the accomplishment of the object or purpose of the treaty, the very basis of the treaty relationship ...
would have been removed.
Official Records of the United Nations Conference on the Law of Treaties,
2d Sess., 21st mtg. at 112-13, U.N. Doc. A/CONF.39/11/Add.1 (1969). He and his delegation were obviously
not privy to the thoughts of the Commission that object or purpose in this context meant any object or purpose.
[FN226]. 1968 Vienna Conference Official Records, supra note 188, at 352. The amendment was defeated. Id. at
359.
[FN227]. Id. at 354; see also id. (attempting to define a proportional response). For Canadian support, see id. at
357.
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[FN228]. Namibia, 1971 I.C.J. at 47.

[FN230]. Id. art. 73.
[FN231]. Case Concerning the Air Services Agreement of 27 March 1946, 54 I.L.R. 304 (1979) (arbitration
[FN232]. This order did not take effect, as the parties agreed to submit the dispute to arbitration.
[FN233]. Id. at 338.
[FN234]. Id.
[FN235]. Id. at 339. This question would have been applicable to France if the Pan Am service had not been permitted under the agreement.
[FN236]. Id.
[FN237]. Id. at 340. The tribunal went on to hold that, even where there was an available means to settle the dispute, in this case arbitral machinery, countermeasures could still be employed by a party to the dispute. Id. at
340-41.
[FN238]. In effect, this would place emphasis on article 73. Hence Damrosch's comment:
In view of the sound policy reasons for preserving a deterrent to minor as well as major treaty breaches, the references to materiality in the text should be read not as excluding entirely the right to respond to minor breaches,
but simply as a means to ensure that minor breaches are not used as a pretext for denouncing a treaty which has
become inconvenient or for suspending performance of more than proportional obligations.
Lori F.
Damrosch, Retaliation or Arbitration -- or Both? The 1978 United States-France Aviation Dispute, 74 Am. J.
Int'l L. 785, 790 (1980).
The other possibility, advanced by the United States in this case, is that its actions in withdrawing certain rights of the French carrier did not amount to the temporary suspension of the entire treaty or severable
portions thereof, so that it had in no way infringed the requirements of article 42(2) of the Vienna Convention.
Invalidity, Termination or Suspension of Operation, 1978 Digest s 4, at 771-72 (citation omitted). It is difficult
to understand, however, how a withdrawal of rights to which a state is entitled under a treaty does not amount to
a suspension of part of that treaty. The United States' contention is similar to that advanced and rejected in the
Nicaragua case -- that the Shultz letter purporting to modify, with immediate effect, the United States' declaration accepting jurisdiction of the International Court was not affected by the declaration's requirement that any
notice of termination take effect six months after being given. Military and Paramilitary Activities (Nicar. v.
U.S.), 1984 I.C.J. 392, 415-21 (Nov. 26).
[FN239]. Damrosch, supra note 238, at 791.
[FN240]. See Covenant of the League of Nations pmbl., arts. 10-12; Treaty between the United States and Other
Powers Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343
[[[hereinafter Kellogg-Briand Pact].
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34 Va. J. Int'l L. 295
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[FN241]. W.E. Hall, A Treatise on International Law 364 (3d ed. 1890).
[FN242]. Id. at 364-65.
[FN243]. Id. at 365; see also G. Schwarzenberger, The Frontiers of International Law 240-48 (1962). This perception of reprisals was in many respects a legacy of the practice, which persisted between the 13th and 18th
centuries, of authorizing private persons by royal letters of marque to exercise a right of self-help in order to satisfy losses suffered at the hands of citizens or the ruler of a foreign country. See Grover Clark, The English
Practice with Regard to Reprisals by Private Persons, 27 Am. J. Int'l L. 694 (1933).
[FN244]. See the discussion of the the Naulilaa incident in Briggs, supra note 54, at 953.
[FN245]. The arbitrations were also focused on frontier and territorial claims. See generally A.M. Stuyt, Survey
of International Arbitrations 1794-1989 (1990); J.B. Moore, International Arbitrations (1898).
[FN246]. See Clive Parry, Some Considerations upon the Protection of Individuals in International Law, 90
R.C.A.D.I. 653, 674-85 (1956).
[FN247]. See 1 Repertory of International Arbitral Jurisprudence 4-42 (V. Coussirat-Coust'ere & P.M. Eisemann
eds., 1989).
[FN248]. See the example in Grotius, De Jure Belli ac Pacis 185 (Francis W. Kelsey trans., 1925) (1646), taken
from 2 Kings 18:7, 18:14, and 19, of Hezekiah, who had been attacked by the Assyrians. Because he had been in
the wrong, Hezekiah had made reparation. When attacked a second time, he had been entitled to respond
supported ... by a clear conscience. Id. Clearly, however, the Assyrians' original attack had been justified.
[FN249]. Grotius' discussion focused on the defense of self and property. See id. at 91-96 (discussing the legality of private war and the use of force to ward off injury); id. at 169-85 (discussing the defense of self and
property as justifiable causes for war).
[FN250]. These examples related to the rights of individuals under Mosaic and Christian law. Id. at 179-83.
Having accepted the proposition that one is entitled to use force against the man who, in the manner of an enemy, seizes and carries off [one's] property, Grotius added the qualification unless the stolen property is of extremely slight value and consequently worthy of no consideration. Id. at 179. Then, after his examination of the
law of Moses, Grotius concluded:
The Hebraic law, then, as well as the Roman, enjoins upon citizens what regard for others suggests, that they
should not kill a man merely because he is stealing property, but that such an act of violence becomes permissible only in case the person who has sought to safeguard his property has himself been exposed to
danger.
Id. at 181. It would seem, however, that Grotius did not advocate exact proportionality. He admitted the case for some equivalence, id. at 463, but supported the view that punishment may be extended to include a greater harm than the sinner had actually inflicted. Id. at 498; see also id. at 499-500 (rejecting the idea
of the harmonic proportion in punishments).
[FN251]. Id. at 405.
[FN252]. Id.
[FN253]. Wolff, Jus Gentium Methodo Scientifica Petractatum 225 (Joseph H. Drake trans., 1934) (1764).
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Wolff noted that an agreement containing mutual promises is a conditional obligation. Id. at 226.
[FN254]. Id.
[FN255]. Id.; see also id. at 292 (Of the right of war on account of the controversies of nations).
[FN256]. Id. at 226-27.
[FN257]. Id. at 227.
[FN258]. Wolff did not doubt this fact. See id. at 314-15 (describing what constitutes a just cause of war
between nations).
[FN259]. Id. at 227.
[FN260]. Id. at 225.
[FN261]. Emer de Vattel, Le Droit des Gens 177 (Charles G. Fenwick trans., 1916) (1758).
[FN262]. Id. at 177-78.
[FN263]. Id. at 177. Vattel added rhetorically: Who is there who would deny it to be so, and madly assert that
sovereigns may, upon the least subject of complaint, immediately have recourse to arms, or may at least break
every treaty of friendship and alliance? Id.
[FN264]. Id.
[FN265]. Id. at 225.
[FN266]. It is difficult to accept the substance of the thesis of E. Raftopoulos, The Inadequacy of the Contractual Analogy in the Law of Treaties 77-119 (1990), who contends that this approach was not acknowledged or accepted by the early writers such as Grotius, Wolff, and Vattel. While Grotius relied primarily upon historical examples drawn from the Bible and Greek and Roman writers, Wolff illustrated the right of termination for breach
of a treaty by reference to a situation involving Sempronius and Gracchus as contracting parties. Wolff, supra
note 253, para. 430 (commentary). While Vattel avoided such analogies, the same was not true of some later
writers. See, e.g., D. Gardner, Institutes of International Law 581-82 (1860) (referring to a right of abrogation
with regard to repeated violations arising on the basis of the just and equitable principle that a party refusing to
perform a contract loses the benefit of it); H. Taylor, A Treatise on International Public Law 402 (1901)
(employing the language of contract in saying that every promise made in a treaty by one party enters into the
consideration in return for which essential parts of the agreement are undertaken by the other).
[FN267]. See John Westlake, International Law 304 (2d ed. 1910). Westlake quoted a Russian memorandum
submitted to the Hague Conference of 1899:
The reciprocal rights and obligations of states ... are determined in a notable measure by the body of what are
called political treaties, which are nothing else than the temporary expression of fortuitous and transitory relations between the different national forces. These treaties bind the freedom of action of the parties so long as the
political conditions which produced them remain without change.
Id. (citation omitted). Lord Birkenhead also commented on such international instruments:
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It is difficult ... to avoid the conclusion that in the present state of opinion, the validity of a treaty depends to an
unfortunately large extent upon the power at the moment of the parties to it, and the political importance of the
interests which may induce the one party to violate, and the other to insist upon the maintenance of, its
terms.
The Earl of Birkenhead, International Law 145 (R. Moelwyn-Hughes ed., 6th ed. 1927); see also
2 A Digest of the International Law of the United States 61-62 (Francis Wharton, ed., 2d ed. 1887) (quoting J.S.
Mill, who noted that a set of treaties concluded in 1814 and 1815 were regulated by the interests and relative
strengths [of the nations involved] at the time).
[FN268]. See supra note 179 (giving as an example the Austrian takeover of Bosnia and Herzegovina in 1908);
see also Birkenhead, supra note 267, at 143 (referring to the 1870 declaration by Russia purporting to release the
Russian state from the Treaty of Paris of 1856, with its requirement that Russia not maintain a fleet in the Black
Sea).
[FN269]. Thus, at the same time as they accepted Russia's abrogation of the prohibition on its maintaining a
fleet in the Black Sea, the major European states issued, on January 17, 1871, the Declaration of London:
The Plenipotentiaries of North Germany, of Austria-Hungary, of Great Britain, of Russia, and of Turkey, assembled today in conference, recognize that it is an essential principle of the law of nations that no power can
liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of
the contracting powers, by means of an amicable arrangement.
Birkenhead, supra note 267, at
143. Various of the related documents also appear in Herbert W. Briggs, The Law of Nations 910-13 (2d ed.
1952).
[FN270]. See Westlake, supra note 267, at 295-96.
[FN271]. League of Nations Covenant art. 19.
[FN272]. See Termination of Treaties, 11 Lauterpacht Digest s ix, at 227-28 (citing various Dutch cases dealing
with jurisdiction over navigation and matters occurring on the River Rhine following the German Note of
November 14, 1936); see also Kiel Collision Case, 17 I.L.R. 133 (Germany, British Zone 1950) (explaining the
status of the Kiel Canal as a result of the same German Note of November 14, 1936); N.V. VerzekeringMaatschappij, Rotterdam v. Franz Haniel & Cie, G.M.B.H. of Duisburg-Ruhrort, 1946 I.L.R. 49-50 (Holland,
Dist. Ct. of Rotterdam 1944) (discussing the status of the Rhine after the Note's denunciation of the Act of Mannheim as revised under the Treaty of Versailles); Wolfgang Friedmann et al., Cases and Materials on International Law 401-03 (1969) (reprinting the text of part of the Note, together with the judgment of the Court of Appeal for Schleswig in 1954 in the M/V Ari case).
[FN273]. U.N. Charter pmbl., para. 1.
[FN274]. See Kellogg-Briand Pact, supra note 240, 46 Stat. at 2343.
[FN275]. U.N. Charter art. 2(4).
[FN276]. 1 George Schwarzenberger, International Law as Applied by International Courts and Tribunals 537
(3d ed. 1957) (citation omitted).
[FN277]. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Reolution 276 (1970), 1971 I.C.J. 16 (June 21).
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[FN278]. As previously explained, see supra text accompanying notes 229-39, articles 42(1) and 73 seem to establish a sharp distinction between the rights of termination and suspension for breach under the application of
the provisions of the treaty or of the present Convention, and the rights, including the rights of termination and
suspension, available under the law relating to state responsibility.
[FN280]. But see the discussion of Air Services Agreement, infra notes 292-93 and accompanying text (in which
the United States appeared to accept the proposition in article 42(2) that suspension is possible only in a case of
material breach, and that therefore the actions taken by the United States did not amount to a suspension of the
Agreement).
[FN282]. See the hypothesis advanced by Richard B. Bilder, Breach of Treaty and Response Thereto, 61 Am.
Soc'y of Int'l L. 193, 195 (1967) ([T]he treaty world of the foreign office is a different world from that of the
I.L.C. Draft upon which the Vienna Convention was based.).
[FN284]. Id. art. 73.
[FN285]. See infra note 288 and accompanying text.
[FN286]. See supra notes 189-90; see also 1966 I.L.C. Report, supra note 117, at 254-55, 258 (referring to material breach and to fundamental change of circumstances).
[FN287]. Third Report on State Responsibility, International Law Commission, 43d Sess., at 38-39, U.N. Doc.
A/CN.4/440 (1991). The Report reinforced this point:
[T]he provision set forth in Article 60 can in no way be considered to exhaust the legal regime of suspension and
termination for the purposes of the general regime of State responsibility. More precisely, the provisions of Articles 60 exhaust: (i) neither the regime of all the measures that can be resorted to in connection with a breach of
a given treaty; (ii) nor the regime of the various measures (suspension and termination included) which may be
resorted to in connection with the infringement of any obligation arising from any rule of international law,
whether created by treaty or by custom.
Id. at 39.
[FN288]. Fourth Report on the Content, Forms and Degrees of International Responsibility (part 2 of the draft
articles), [1983] 2 Y.B. Int'l L. Comm'n, pt. 1, at 3, 18 [hereinafter Riphagen, Fourth Report] (Willem Riphagen,
special rapporteur).
[FN289]. See supra text accompanying note 238.
[FN291]. See 1966 I.L.C. Report, supra note 117, at 211.
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[FN293]. Invalidity, Termination, and Suspension of Operation, 1978 Digest s 4, at 772 (citations omitted).
[FN294]. Rainbow Warrior, 82 I.L.R. 499 (arbitral decision of Apr. 30, 1990).
[FN295]. See generally id. at 515-42 (discussing the facts of the case).
[FN296]. See id. at 549.
[FN297]. See id.
[FN298]. Id. at 550-51.
[FN299]. Id. at 551.
[FN300]. Id.
[FN301]. Id. at 553.
[FN302]. Id. at 553-55 (distinguishing the controversial notion of necessity from the concept of distress and formulating three conditions necessary to preclude wrongfulness under the latter theory).
[FN303]. Id. at 555 (The question ... to determine [is] whether the circumstances of distress in a case of extreme
urgency involving elementary humanitarian considerations affecting the acting organs of the State may exclude
wrongfulness in this case.).
[FN304]. Id. at 551-55.
[FN305]. See Vienna Convention, supra note 49, art. 60(3)(b) ([M]aterial breach ... consists in ... the violation
of ... the object or purpose of the treaty.).
[FN306]. Rainbow Warrior, 82 I.L.R. at 579.
[FN307]. Id. at 501.
[FN308]. Id. at 584-90 (separate opinion of Sir Kenneth Keith) (outlining the observations of the New Zealand
member of the tribunal, dissenting on this issue). It is arguable that if the French conduct had brought the agreement to an end, the officers should have been returned to New Zealand to serve the full term of their imprisonment.
[FN309]. See id. at 551-53.
[FN310]. Vienna Convention, supra note 49, arts. 61, 62 (discussing impossibility and fundamental change of
circumstances).
[FN311]. See 1980 Report, supra note 19, art. 31(1), at 33.
[FN312]. The principle of force majeure was not available to France. No absolute impossibility prevented
France from keeping the officers on the island.
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[FN313]. Rainbow Warrior, 82 I.L.R. at 553. The tribunal was quoting Eighth Report on the Questions of Treaties Concluded Between States and International Organizations or Between Two or More International Organizations, [1979] 2 Y.B. Int'l L. Comm'n 133 (1979) [hereinafter Reuter, Eighth Report] (Paul Reuter, special rapporteur).
[FN314]. Rainbow Warrior, 82 I.L.R. at 553 (quoting Reuter, Eighth Report, supra note 313, at 134).
[FN315]. Id. at 554 (quoting Reuter, Eighth Report, supra note 313, at 135).
[FN316]. Id. at 501.
[FN317]. See id. at 530. This is borne out by the immediate reaction of New Zealand to the original French request to be allowed to remove Major Mafart from the island. As the tribunal commented:
The request for consent was presented as a humanitarian emergency. New Zealand responded promptly and
sympathetically offering to send a New Zealand doctor for an on the spot examination so that, if the medical
condition of Mafart justified it, consent could be given within the time frame requested by the French authorities.
Id.
[FN318]. Rainbow Warrior, 82 I.L.R. at 555.
[FN319]. Id.
[FN320]. See id. at 580-83 (separate opinion of Sir Kenneth Keith) (outlining the criticisms of the majority opinion by the New Zealand member of the tribunal).
[FN321]. Id. at 554.
[FN322]. This is true if there had been no dispute as to whether a New Zealand doctor should have been allowed
to examine the officer before he was flown to France. Note that these considerations do not bear on the defense
of necessity in draft article 33, which deals with a state's right to act in situations of grave and imminent danger
to the existence of the state and its vital interests. Outside of a right of self-preservation, including self-defense,
the status of necessity must be regarded as doubtful or, in the words of the Rainbow Warrior tribunal, of a
controversial character. Id.
[FN323]. See Report of the International Law Commission on its 43rd Session, U.N. GAOR, 46th Sess., Supp.
No. 10, at 324 n.376, U.N. Doc. A/46/10 (1991).
[FN324]. This condition is subject to articles 11 and 13 dealing with multilateral treaties and to article 12, which
provides:
Articles 8 and 9 do not apply to the suspension of obligations:
(a) of the receiving State regarding the immunities to be accorded to diplomatic and consular missions
and staff;
(b) of any State by virtue of a peremptory norm of general international law.
Report of the International Law Commission on the Work of its Thirty-Seventh Session (6 May-25 July
1985), [1985] 2 Y.B. Int'l L. Comm'n, pt. 2, at 21 [ [ [hereinafter 1985 Report]. For the text of articles 6-16, see
id. at 20-21 & n.66.
[FN325]. Id. at 20 . Draft article 9 is subject to draft article 10 as well as draft articles 11, 12, and 13. The object
34 VAJIL 295
34 Va. J. Int'l L. 295
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of article 10 is to exclude the measures contained in article 9 until [a state] has exhausted the international procedures for peaceful settlement of the dispute available to it in order to ensure the performance of the obligations
mentioned in article 6. Id. According to draft article 6:
1. The injured State may require the State which has committed an internationally wrongful act to:
(a)
discontinue the act, release and return the persons and objects held through such act, and prevent continuing effects of such act; and
(b) apply such remedies as are provided for in its internal law; and
(c) subject to article 7, re-establish the situation as it existed before the act; and
(d) provide appropriate guarantees against repetition of the act.
2. To the extent that it is materially impossible to act in conformity with paragraph 1(c), the injured
State may require the State which has committed the internationally wrongful act to pay to it a sum of money
corresponding to the value which a re-establishment of the situation as it existed before the breach would bear.
Id.
[FN326]. Id. art. 9(2).
[FN327]. Id. art. 8.
[FN328]. See Riphagen, Fourth Report, supra note 288, at 18 ([R]eciprocity, in the sense that an obligation is to
be performed by a State only if the same or another obligation is performed by another State, is a legal link
which can be established by the parties at the time those obligations are negotiated or entered into.).
[FN330]. 1985 Report, supra note 324, at 21.
[FN331]. Id. at 20-21.
[FN332]. See Riphagen, Fourth Report, supra note 288, at 23.
[FN333]. See supra notes 226-27, 239.
[FN334]. This discussion leaves aside rules of the jus cogens and rules of a humanitarian character, from which
no derogation is permitted.
[FN336]. Id. art. 60(2)(c).
[FN337]. Id. art. 60(2)(a).
[FN338]. As Sachariew observed, [i]t follows ... that ... a collective (or co-ordinated) response does not necessarily mean a reaction by all parties, but rather a reaction reflecting the common will of the parties. K. Sachariew, State Responsibility for Multilateral Treaty Violations: Identifying the Injured State and Its Legal Status,
35 Neth. Int'l L. Rev. 273, 285 (1988).
[FN339]. Charles De Visscher, Theory and Reality in Public International Law 263 (P.E. Corbett trans., 1957)
(citation omitted); see id. at 318-19 (discussing the influence of political factors on treaty revision).
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 76
[FN340]. Id. at 322.

[FN341]. There are some nice points of interpretation involved in the relationship of these provisions with each
other and with other provisions of the Convention, e.g., articles 41(1)(b)(i) and 60(2)(b).
[FN342]. These sanctions may be applied unilaterally or by several treaty members against a single violator.
[FN344]. Id. art. 60(2)(c).
[FN345]. According to the Commission:
Paragraph 2(c) is designed to deal with the problem raised in the comments of Governments of special types of
treaty, e.g. disarmament treaties, where a breach by one party tends to undermine the whole regime of the treaty
as between all the parties. In the case of a material breach of such a treaty the interests of an individual party
may not be adequately protected by the rules contained in paragraphs 2(a) and (b). It could not suspend the performance of its own obligations under the treaty vis-'a-vis the defaulting State without at the same time violating
its obligations to the other parties. Yet, unless it does so, it may be unable to protect itself against the threat resulting from the arming of the defaulting State. In these cases, where a material breach of the treaty by one party
radically changes the position of every party with respect to the further performance of its obligations, the Commission considered that any party must be permitted without first obtaining the agreement of the other parties to
suspend the operation of the treaty with respect to itself generally in its relations with all the other
parties. Paragraph 2(c) accordingly so provides.
1966 I.L.C. Report, supra note 117, at 255.
[FN346]. The United States was specially affected by the breaches of the Vienna Convention on Diplomatic
Relations when Iran failed to protect the United States embassy in Tehran and subsequently failed to secure the
release of the staff and the restoration of possession of the premises to the United States government.
[FN347]. See Sachariew, supra note 338, at 277-81; id. at 278-79 (The other parties to the treaty ... have ipso
facto certain interests of a legal nature .... Nonetheless, these interests of a legal nature are distinct from the
claims of the injured State. (citation omitted)).
[FN348]. See id. at 282-85.
[FN349]. Id. at 283.
[FN350]. See Ricardo P. Mazzeschi, Termination and Suspension of Treaties for Breach in the ILC Works on
State Responsibility, in United Nations Codification of State Responsibility 57, 83-84 (Marina Spinedi & Bruno
Simma eds., 1987) (rejecting Riphagen's view that a breach of a multilateral treaty authorizes only collective action).
[FN351]. The sanctions were specifically imposed for the Iranian government's failure to protect the compound,
to release the staff taken hostage by the militants, and to restore the premises to the United States. See The Community and the Member States and the Events in Iran, 13 Bull. European Communities 20, 25 (1980). At an informal meeting, the Foreign Ministers of the Nine, having referred to the situation resulting from the detention
of the American hostages in Iran, an act constituting a flagrant violation of international laws, decided to apply, in concert and without delay, the measures provided for in the draft Security Council resolution of 10 January. In particular they agreed that all contracts concluded after 4 November 1979 should be suspended. Id. The
34 VAJIL 295
34 Va. J. Int'l L. 295
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vote on the draft resolution in question occurred on January 13, 1980, and resulted in 10 votes in favor, 2 against
(including the Soviet veto), 2 abstentions, and one not participating. Security Council Documents with Regard to
the Occupation of the U.S. Embassy in Iran, 19 I.L.M. 248, 256 (1980).
[FN352]. See U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 35-36 (May 24)
(referring to repeated and multiple breaches of the applicable provisions of the Vienna Conventions even more
serious than those which arose from their failure to take any steps to prevent the attacks on the inviolability of
these premises and staff).
The frequency with which at the present time the principles of international law governing diplomatic and consular relations are set at naught by individuals or groups of individuals is already deplorable. But this case is
unique and of very particular gravity because here it is not only private individuals or groups of individuals that
have disregarded and set at naught the inviolability of a foreign embassy, but the government of the receiving
State itself.
Id. at 42-43. The Court's judgment does not refer to the possibility that Iran's conduct
amounted to an international crime, which would have given all states a right, or even a duty, to respond to the
wrongful conduct. What can be said is that the nature of the breach by Iran of its international obligations was
so extreme that remedial action by individual states might have been an appropriate response. This possibility is
not addressed in the Draft Articles, but there may well be a need to make allowances for the exceptional situation.
[FN353]. Sachariew, supra note note 338, at 286.
[FN354]. Report of the International Law Commission on the Work of Its Forty-Third Session, U.N. GAOR,
46th Sess., Supp. No. 10, at 324, U.N. Doc. A/46/10 (1993).
[FN355]. Id. at 325 n.376.
[FN356]. Id.
[FN357]. 1985 Report, supra note 324, at 20-21. In addition, draft article 11(2) prescribes that:
The injured State is not entitled to suspend the performance of its obligations towards the State which
has committed the internationally wrongful act if the multilateral treaty imposing the obligations provides for a
procedure of collective decisions for the purpose of enforcement of the obligations imposed by it, unless and until such collective decision, including the suspension of obligations towards the State which has committed the
internationally wrongful act, has been taken; in such case, paragraph 1 (a) and (b) do not apply to the extent that
such decision so determines.
Id. at 21. According to article 13, [i]f the internationally wrongful act committed constitutes a manifest violation of obligations arising from a multilateral treaty, which destroys the object and purpose of that
treaty as a whole, article 10 and article 11, paragraph 1 (a) and (b) and paragraph 2, do not apply. Id.
[FN358]. Riphagen, Fourth Report, supra note 288, at 13 ([I]t would seem that, beyond the case of international
crimes, there are no internationally wrongful acts having an erga omnes character.). But cf. Sachariew, supra
note 338, at 279 (noting the existence of a third category of cases, borderline cases' in which it is very difficult
to establish whether a concrete breach trespasses the limit separating bilateral relationships from erga omnes obligations).
[FN359]. Vienna Convention on Diplomatic Relations, supra note 129, art. 41(1).
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 78
[FN360]. Id. arts. 22, 29.

[FN361]. Id. art. 9.
[FN362]. U.S. Diplomatic and Consular Staff in Tehran, (U.S. v. Iran), 1980 I.C.J. 40 (May 24).
[FN363]. See Bruno Simma, Self-Contained Regimes, 1985 Neth. Y.B. Int'l L. 111, 118.
[FN364]. See Eileen Denza, Diplomatic Law 84 (1976) (discussing the raid by Pakistani police in 1973 on the
Iraqi Embassy).
[FN366]. See Sachariew, supra note 338, at 280.
[FN368]. Vienna Convention, supra note 49, arts. 20(4), 19(c).
[FN369]. Diplomatic and Consular Staff, 1980 I.C.J. at 42.
[FN370]. Id. at 43.
[FN371]. Consider, e.g., the Security Council in relation to the United Nations. See U.N. Charter arts. 19(1),
37(2), 39, 40, 41, 42 (describing the Security Council's powers).
The Board of Governors has enforcement powers under the Statute of the International Atomic Energy
Agency (IAEA). Under article XII the Agency has established a safeguards system designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the
Agency or at its request or under its supervision or control are not used in such a way as to further any military
purpose. Statute of the International Atomic Energy Agency, done Oct. 26, 1956, 8 U.S.T. 1093, 276 U.N.T.S.
3 (as amended). This system is also employed to ensure compliance by non-nuclear-weapon states with the obligations under the Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21
U.S.T. 483, 729 U.N.T.S. 161, article III(1) of which provides in part:
Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement
to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of
the International Atomic Energy Agency and the Agency's safeguards system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of
nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.
Id. art.
III. See generally Sachariew, supra note 338, at 284-85 (discussing the implementation of obligations by collective organs such as the IAEA).
[FN372]. See, e.g., discussion of common article 1 of the Geneva Conventions of 1949, supra text accompanying notes 28-48.
As Sachariew notes, supra note 338, at 285, another instance is provided by article X of the 1959 Antarctic Treaty, according to which each of the contracting parties undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary
to the principles or purposes of the present Treaty, Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S.
71, reprinted in 54 Am. J. Int'l L. 477, 481 (1960).
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 79
[FN373]. See Constitution of the Universal Postal Convention, July 10, 1964, art. 2, 16 U.S.T. 7, 611 U.N.T.S. 7
(When a member fails to observe the primary obligation of membership, regarding freedom of transit of mail
passed between the postal administrations of members, postal administrations of other member countries may
discontinue their postal service with that country.).
[FN374]. Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5,
1963, 14 U.S.T. 1313, 480 U.N.T.S. 43, reprinted in 57 Am. J. Int'l L. 1026 (1963).
[FN375]. Id. art. 1.
[FN376]. Id. art. 1(2).
[FN377]. Such action was exemplified by the European actions taken against Iran at the time of the hostages
crisis with the United States. See supra note 351 and accompanying text. Although in the case of Iran the
European Community's reaction could be regarded as in substitution for a response by the Security Council, the
subsequent measures taken against Argentina in 1982 were not authorized by the Security Council resolution
condemning the Argentine invasion of the Falkland (Malvinas) Islands. Compare Council Regulation (EEC)
877/82, 1982 O.J. (L 102) 1-2 with S.C. Res. 502, U.N. SCOR, 37th Sess., 2350th mtg., U.N. Doc. S/RES/502
(1982), reprinted in 76 Am. J. Int'l L. 712 (1982). It does not seem necessary to regard the invasion as a breach
of an erga omnes obligation, as did Pieter J. Kuyper, Community Sanctions Against Argentina: Lawfulness under Community and International Law, in Essays in European Law and Integration 141, 157-62 (David O'Keefe
& Henry G. Schermers eds., 1982), in order to justify the Community's reaction under international law. The
seriousness of the breach of the U.N. Charter, to which the Community members were parties, would have been
cause enough.
[FN378]. Certain measures were adopted within the United Nations context. Consider, for example, the significant role at one time asserted by the General Assembly as rationalized by the International Court. Certain Expenses of the United Nations, 1962 I.C.J. 151 (July 20).
Other actions were taken outside the United Nations context. Various sanctions were ostensibly justified by reference to the powers of a regional organisation; for example, the Cuban Quarantine of 1962 under the
aegis of the Organization of American States. See, e.g., Leonard C. Meeker, Defensive Quarantine and the Law,
57 Am. J. Int'l L. 515 (1963) (discussing the Cuban Quarantine); Christopher C. Joyner, Reflections on the Lawfulness of Invasion, 78 Am. J. Int'l L. 13, 135-45 (1984) (discussing the intervention in Grenada in 1983 at the
behest of the Organisation of East Caribbean States); John Norton Moore, Grenada and the International Double
Standard, 78 Am. J. Int'l L. 145, 153.
[FN379]. Thus, no breach of article 53(1) is involved. Article 53(1) provides in part: The Security Council
shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the
authorization of the Security Council.
[FN380]. See Meeker, supra note 378, at 522.
[FN381]. See Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 33-34 (Feb. 5).
[FN382]. See Agreements and Pronouncements, 5 Hackworth Digest s 519, at 467-68.
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 80
[FN383]. See Collective Self-Defence, 12 Whiteman Digest s 3, at 79.

[FN384]. Inter-American Treaty of Reciprocal Assistance (the Rio Treaty), Sept. 2, 1947, T.I.A.S. No. 1838, 21
U.N.T.S. 77; North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 314 U.N.T.S. 243, reprinted in 43 Am. J. Int'l
L. 159 (Supp. 1949); Treaty of Friendship, Co-operation and Mutual Assistance (the Warsaw Pact), May 14,
1955, 219 U.N.T.S. 3, reprinted in 49 Am. J. Int'l L. 194 (Supp. 1955).
[FN385]. See Ian Brownlie, International Law and the Use of Force by States 330 (1963).
[FN386]. See C.H.M. Waldock, The Regulation of the Use of Force by Individual States in International Law,
81 R.C.A.D.I. 451, 504 (1952) (noting that article 51 reserves a right of self-defense and does not preclude defensive aid to a state that is subject to aggression).
[FN387]. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 105 (June 27).
[FN388]. See Oscar Schachter, United Nations Law in the Gulf Conflict, 85 Am. J. Int'l L. 452, 457-458 (1991).
[FN389]. S.C. Res. 661, U.N. SCOR, 45th Sess., 2933rd mtg. pmbl., para. 9, U.N. Doc. S/RES/661 (1990), reprinted in 29 I.L.M. 1325, 1326; see also S.C. Res. 686, U.N. SCOR, 46th Sess., 2978th mtg. para. 5, U.N. Doc.
S/RES/686 (1991), reprinted in 30 I.L.M. 568, 569. See generally Eugene V. Rostow, Until What? Enforcement
Action or Collective Self-Defense?, 85 Am. J. Int'l L. 506 (1991) (discussing collective self-defense).
[FN390]. This formulation of the test of proportionality in this context is based upon D.W. Greig, Self-Defence
and the Security Council: What does Article 51 Require?, 40 Int'l Comp. L.Q. 366, 390-99 (1991).
[FN391]. Statute of the International Court of Justice art. 62(1).
[FN392]. Id. art. 62(2).
[FN393]. Id. art. 63(1).
[FN394]. Id. art. 63(2).
[FN395]. See D.W. Greig, Third Party Rights and Intervention Before the International Court, 32 Va. J. Int'l L.
285, 308-13 (1992) (discussing limitations on the right of third-party intervention under article 63 of the Statute
of the International Court of Justice).
[FN398]. By draft article 17:
1. An act of a State which constitutes a breach of an international obligation is an internationally wrongful act
regardless of the origin, whether customary, conventional or other, of that obligation.
2. The origin of
the international obligation breached by a State does not affect the international responsibility arising from the
internationally wrongful act of that State.
1980 Report, supra note 19, at 32.
[FN399]. Fifth Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 81
Articles), [1984] 2 Y.B. Int'l L. Comm'n, pt. 1, at 1, 4.

[FN400]. Diversion of Water from the Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70, at 50 (June 28).
[FN401]. For an obligation to correspond to or be directly connected with the obligation breached there
would normally have to be some aspect of agreement or quid pro quo involved. Even if the basis of one obligation was a unilateral act, there would have to be some interrelationship of a quasi-treaty nature with another state
for the principle to be applied. See, e.g., Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/
B) No. 53, at 70-71 (Apr. 5) (linking the Ihlen declaration to what Denmark was indicating her willingness to
concede in the Spitzbergen question).
[FN402]. See Mazzeschi, supra note 350, at 79-80.
[FN403]. 1985 Report, supra note 324, at 20 (draft art. 9(1)).
[FN404]. Id. (draft art. 9(2)).
[FN405]. See supra text accompanying note 293 (expressing the views of the United States).
[FN406]. The contracts broken involved business between the E.C. member and Iran. For a description of the
views of the United Kingdom on this issue, see United Kingdom Materials on International Law 1980, 51 Brit.
Y.B. Int'l L. 355, 477-79 (1980).
[FN407]. For information on treaties between Iran and various European countries that were still in force in
1951, see annex 2, paragraph 11 of the U.K. Memorial to the International Court in the Anglo-Iranian Oil Company case, I.C.J. Pleadings at 150-51. For various agreements between the United Kingdom and Iran, see id.
paras. 9-10, at 149. As to whether these latter treaties remain in force, there is no record of their having been denounced or suspended. It has been contended that, by entering into a free trade regime such as the European
Economic Community, member states are in some way released from commercial most-favored-nation treaties
with third states. A similar argument was advanced by Canada at the time it entered into the Free-Trade Agreement, Jan. 2, 1988, U.S.-Can., 27 I.L.M. 281 (1988), with the United States, but this view was rejected by Australia, which refused to accept that Canada was thereby released from its obligations under the Trade Agreement,
Feb. 12, 1960, Austl.-Can., 369 U.N.T.S. 89, between the two countries.
[FN408]. In its more recent work the International Law Commission has been considering the proposals in the
Special Rapporteur's Fifth Report for the introduction of a compulsory scheme of third-party dispute settlement
when countermeasures are taken. See Report of the International Law Commission on the Work of Its FortyFifth Session, at 80, U.N. Doc. A/48/10 (1993). This has been regarded by some members of the Commission as
a controversial and unacceptable step. See Robert Rosenstock, The Forty-Fifth Session of the International Law
Commission, 88 Am. J. Int'l L. 134, 136 (1994); Oscar Schachter, Dispute Settlement and Countermeasures in
the International Law Commission, 88 Am. J. Int'l L. 471, 472 (1994).
[FN409]. Under the General Agreement on Tariffs and Trade, article XXIII, the contracting parties may authorize a state aggrieved by a breach of GATT obligations to suspend concessions granted to the offending member.
For the most part this provision has remained a dead letter, but the United States has, in recent years, been moving towards the imposition of its own reciprocal sanctions against trading practices by other members which it
regards as unacceptable. See generally Keith J. Hay & Andrei Sulzenko, U.S. Trade Policy and Reciprocity, 16
34 VAJIL 295
34 Va. J. Int'l L. 295
Page 82
J. World Trade L. 471 (1982) (discussing U.S. efforts to impose, in the name of reciprocity, tough new rules on
America's protectionist trading partners).
Under the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations,
signed at Marakesh on April 15, 1994, there is a substantial Understanding on Rules and Procedures Governing
the Settlements of Disputes, which provides for the establishment of a Dispute Settlement Body
(DSB). According to article 3(7) of this instrument, [t]he last resort which this Understanding provides to the
Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis-'a-vis the other Member,
subject to the authorisation by the DSB of such measures.
34 Va. J. Int'l L. 295
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34 VAJIL 295

34 Va. J. Int'l L. 295

Virginia Journal of International Law

2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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made to the Court.

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cisions terminating the employment of personnel. [FN99]

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1. The Permissibility of Reservations

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A. The Historical Background

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of customary international law, if it is established that:

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tions placed upon the reacting states by the Vienna Convention.

[FNa]. Robert Garran Professor of Law, The Australian National University.

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