The essential aim of the Special Rapporteur's Draft Articles for Part HI 1 on the settlement of disputes arising in connection with countermeasures is to ensure that clear restrictions on the taking of countermeasures 2 are agreed and met. This is to be achieved by affording to the States involved in the countermeasures the right to submit any resulting dispute to conciliation or, failing settlement by conciliation, to arbitration, or, failing settlement by arbitration, to the International Court of Justice. The question to be considered in this paper is how the intervention of the Security Council will affect this system for allocating responsibility. For, in principle, the Security Council could either authorize countermeasures or prohibit countermeasures. In either case the question will arise whether such a decision by the Council will be regarded as conclusive of the legality, or illegality, of the measures taken. There is an apparent illogicality in making the right of a State to take countermeasures subject to carefully-formulated conditions, but leaving the Security Council free to authorize institutionalized countermeasures , subject to no such conditions. It is this illogicality which has seemingly worried the Special Rapporteur. The question had, of course, been anticipated in Riphagen's earlier drafts, although not limited to situations of countermeasures and peaceful settlement. 3 Article 4 of Part Two 4 provides as follows:
Few propositions about international law have enjoyed more support
than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal. Although, indeed, the words “reprisals” and “retaliation ” are not to be found in the Charter, this proposition was generally regarded by writers2 and by the Security Council as the logical and necessary consequence of the prohibition of force in Article 2(4), the injunction to settle disputes peacefully in Article 2(3) and the limiting of permissible force by states to self-defense. The U.N. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, adopted by General Assembly Resolution 2625 (XXV) on October 24, 1970, contains the following categorical statement: “States have a duty to refrain from acts of reprisal involving the use of force.”
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