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Countermeasures as International Law deals with them fall under the head of state responsibility. State responsibility in International Law refers to liability – that of one state to another for the non-observance of the obligations imposed by the international legal system. The basic rule of which is defined in the International Law commission Draft of 2001‘s Article 1 namely, “Every internationally wrongful act of a State entails the international responsibility of that State.” Alternately recognized defense pleas which may be utilized by the state to deny responsibility are consent, self-defence, countermeasures, force majeure, distress and necessity. Countermeasures as the word web defines it, is an action taken to offset another action. In the field of International Law a reference to countermeasures would mean, “A concept within the general area of state responsibility for internationally wrongful acts, referring to proportional and unilateral non-forcible measures which an injured state may take in response to another state’s wrongful act so as to induce that state to cease its conduct, to make reparation and – where appropriate- to offer assurances and guarantees of non-repetition.” The wrongful acts here would be as supplemented by the I.L.C. Draft article 2, which states that, “There is an internationally wrongful act of a State when conduct consisting of an action or omission:
- is attributable to the State under International Law and;
- constitutes a breach of an international obligation of the State.”
In the aforementioned definition of Countermeasures in International Law the keywords are proportional and non-forcible. If they are forcible measures then they are included in the list of prohibitions. This is because there is a body of principles that exists in international law, which are inherent to it and override every other principle. It is known as jus cogens and the prohibition of use of force is one of the most basic of those principles. Also the countermeasures need to be proportional and reasonable to the damage caused to the injured state. However there are also times when certain countermeasures even though proportional to the injury caused are prohibited on humanitarian grounds in the interests of the international community. Therefore principles that disregard principles of respect for human rights and in particular regard for the fundamental needs of the population of the wrongdoing state and countermeasures producing extreme economic and political coercion designed to endanger the territorial integrity or political independence of the wrongdoing state are prohibited. In the same vein, obligations under any applicable dispute settlement procedure between the two states continues, and the state taking countermeasures is expected to, rather must respect the inviolability of diplomatic or consular agents, premises, archives and documents.
However it is not as simple as it looks. There are a lot many aspects to proportionality of countermeasures employed by states. While one theoretical perspective would talk about the link between the breached rule and the response to it, another theoretical perspective will talk about the aim of the response being more important and draw linkages to proportionality in terms of the reparations sought to be achieved by pursuing that aim. This gets us to realize that countermeasures or proportionality are in no way of just one kind, performing a single function. They are multifaceted just like the tools of self-redress made available in the field of International Law.
Therefore the 1st part of the article will deal with the basic idea of what countermeasures are, while the second part will in brief will deal with the various forms of countermeasures taken by the international community and consequentially the proportionality of these measures, which in effect will give us an idea of the various kinds proportionality and the various fashions in which it is tested or measured as the case may be.
Countermeasures – An Overview
The ability to take countermeasures is considered to be a very vital means by which a state can respond effectively to the breaches of its international rights. This is so because complete dependence on methods of peaceful settlement, even if such measures are readily available, may take years to produce desirable results. It does not in any way indicate that interim measures such as injunctions are not available. It only points to the fact that getting such interim measures enforced is not that easy. Given that a certain process of peaceful dispute settlement, might just settle the issue at hand, the compensation however got in the process (even if paid fully and promptly) is never an exact match or real substitute for performance of the broken obligation. Also, given the fact that enforcement of international law unlike municipal law is not done within a legal system comprising of a hierarchy of courts supported by various mechanisms of enforcement, a state sometimes has to resort to such self – help measures to protects its own as well as its citizens rights effectively.
Article 49(1) of the Draft Article of the International Law Commission of 2001 states that countermeasures are exceptional and limited in the sense that they are so fashioned that they are a necessity and not a punishment. The taking of countermeasures therefore has several preconditions and conditions that need to be fulfilled. Preconditions being that before the taking of countermeasures, the injured state must have called upon the injury-causing state to fulfill its obligations and also must have notified that state of any decision to take countermeasures while offering to negotiate and settle. However, the injured state can take such countermeasures as are necessary to preserve its rights.
The conditions attached to it are- where the wrongful acts have ceased or the matter is ‘pending’ before a court or tribunal with powers to take binding decisions, then countermeasures should have been ceased (or where plausible, not been taken). Countermeasures should also be terminated as soon as the responsible state has complied with its obligations of cessations and reparations. Therefore countermeasures must be taken in a way so as to permit the resumption of performance of the responsible state’s obligation, that is, the countermeasure must be reversible. However countermeasures maybe continued to be taken, if the responsible state fails to implement dispute settlement procedures in good faith or comply with the decisions of the tribunal or court.
The International Court stated in the Gabˇc´ıkovo-Nagymaros Project case that
In order to be justifiable, a countermeasure must meet certain conditions. . . In the first place it must be taken in response to a previous international wrongful act of another state and must be directed against that state . . . Secondly, the injured state must have called upon the state committing the wrongful act to discontinue its wrongful conduct or to make reparation for it In the view of the Court, an important consideration is that the effects of countermeasure must be commensurate with the injury suffered, taking account of the rights in question . . [and] its purpose must be to induce the wrongdoing state to comply with its obligations under international law, and the measure must therefore be reversible.
Proportionality And Countermeasures
The role of proportionality in state responsibility is a very important one, especially so in public international law as is evident from the introduction of this paper. This is so because it represents a key element for controlling the exercise of the decentralized power conferred on states to react individually to internationally wrongful acts. There is always a question of the appropriateness of the means chosen for the furtherance of the aim of the injured state, but in the legal field of countermeasures, there is also the question of the appropriateness of the aim chosen. This does not in any way mean that a state cannot chose its own method of self- redressal or the aim of its action in self- redress but the presence of the notion of proportionality curtails the otherwise unbounded discretion of the state to pursue any which action it so deems fit by requiring that the aim pursued is not manifestly inappropriate to the situation considering the structure, content of the breached rule and the magnitude of the breach. Therefore keeping in mind the multifarious functions that proportionality has to perform in terms of its application to countermeasures, Prof. Cannizaro in his article The Role of Proportionality in the Law of International Countermeasures categorises proportionality into two kinds on the basis of ends and the means to that end. Internal proportionality therefore being the name attributed to the operation that consists in appraising the appropriateness of the content of the measures adopted in relation to the result that they seek to achieve. And external proportionality being term which conveys the idea that what is required by proportionality is not only that the means chosen are appropriate to the subjective aim of the respondent state, but also, more so primarily, that the aim in itself is reasonable and appropriate in the context of the breached norm and of the legal consequences deriving from the breach.
The categorization of proportionality however makes us ask the question of whether countermeasures are as generic as they have been made to look so far? In the common genus of self redress several species of redress exist each of them having their own identity in terms of a distinct and proper nature and functions. While response to injuries caused must abide by proportionality, the very content of these responses and the results they desire could vary, quite considerably at times. The general idea here is that each measure taken is connected to the performance of its own desired function.
Countermeasures but obviously therefore are of different kinds. The first kind is Normative Countermeasures, which work best in case of bilateral structures, and they are those which are aimed at reproducing the legal balance that has been breached. In a bilateral structure the obligations of one party are counterbalanced by the performance of those obligations by the other party and vice- versa. Hence proportionality is in a way parallel to reciprocity. This kind of proportionality is usually applied to international trade agreement breaches.
In cases of unilateral obligations, where the breach of such an obligation calls for retributive measures with the aim of putting the cost of action on the wrong-doer and preventing it from benefitting from its own conduct, proportionality is measured by a comparison of equivalence between the injurious effects of both the breach and the response. The countermeasures applied here are called retributive countermeasures and usually work with the basic aim of inducing the wrongdoer to comply with its obligation, accept responsibility and offer reparation. Retribution hence assumes a coercive garb in such cases and usually the countermeasures applied are reversible in nature.
When the function of the response is not to make the wrongdoer pay compensation for the harm caused but make the wrongdoer state reverse its course of action and abide by the obligation, we apply what are known as coercive countermeasures. Such countermeasures are permissible for the protection of the interests of the international community and enforcement of essential interests. Proportionality in these cases is also the relation between breach and response, however it is not a measure of equivalence but rather a relation of appropriateness between the wrongful conduct and the need to restore a pre-existing legal balance.
The last and final kind of countermeasures would be executive countermeasures, which are like the extreme form of conceived countermeasures, whereby the injury causing state is not made to fulfill its obligation, but simply substituted with some other state or the function is then performed by the injured state itself, by the breach of a different obligation. The proportionality of these measures is measured against the idea that such a step taken is necessary for securing the protection afforded by the breached rule.
Thus to conclude, it is seen that countermeasures is a debatable section of the International Law, more so the lawfulness of such measures given the fact that the state pursuing such measures runs the risk of the action taken by the other state being held lawful, consequentially making its countermeasure unlawful and the flip side of the coin being the proportionality of such unilateral measures as the provision of blanket powers to enforce countermeasures would in a generic sense mean, provision of sweeping powers to the injured state to seek redressal which might in most cases border on abuse of such powers given the fact that the international system we deal with is still essentially devoid of compulsory third party settlement of disputes and central law enforcement. Proportionality therefore plays the central role in making the use of countermeasures lawful. It plays this role in a two fold process. One by making the distinguishing of various tools of self-redress possible, which would give its users a fair idea of which form of countermeasures is permissible in a certain situation and which is not. The other one being the making of the user of that certain countermeasure aware of validity and proportionality of the outcome of the response chosen by it and also enlightens the injured state proportionate – disproportionate status of the response as against the magnitude of the offence, chosen by it to be invoked against the injury causing state. Hence it is not the question of only the means to an end, but also the end in itself. Therefore, whenever there is a use of countermeasures, it is necessary for the involved parties to keep in mind the nature of legal relation between them.
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