#2405 - State Responsibility Essay - Public International Law

Does present-day international law allow third-party countermeasures and, if not, should it do so?

A question concerning countermeasures must be placed in the context of State responsibility more broadly: art.1 provides that “every internationally wrongful act of a state entails the international responsibility of a state” – as such, there must be a “wrongful act”, which implies the existence of an obligation not to commit the said act. Then, there must be an attribution of this act to the State (otherwise there can be only individual responsibility) and there must be no circumstances precluding the wrongfulness of the act i.e. a defence. If all of the above requirements are satisfied, it is possible to 1) invoke responsibility and potentially 2) use countermeasures to force cession of the breach of the state’s obligations. This work is concerned with the latter 2 stages (invocation and use of countermeasures). We will examine the draft articles, in so far as they can inform us of the current state of the law: articles 48-54 will be analysed and the conclusion drawn that the ambiguity evident in their language and the explicit desire to allow the law to progress is indicative of international law not allowing third-party countermeasures currently. The second part of this work will then address whether international law should allow them: the traditional argument in favour of third-party countermeasures will be set out, giving the conceptual reason based on the argument that obligations must have correlative rights and that all States have a public interest in the observation of international obligations, and the practical reason of “enforcement”. It will be argued that the conceptual reason is based on an impossible understanding of “obligation” and that the practicality is not reason enough for the exercise of coercive actions, and further that the risk of abuse of third-party countermeasures is too great a risk.

We begin with the question “does present-day international law allow third-party countermeasures”. This can only be answered by identifying binding legal norms, which provide (or as we shall see, perhaps prevent) for 3^rd party countermeasures. Art.38 (1) of the Statute of the ICJ sets out the sources of international law as (in summary): a) international conventions/treaties b) customary international law c) general principles of law d) judicial decisions and the teachings of the most highly qualified publicists (subsidiary means for the determination of rules of law).

It follows therefore that if there is no source of law that establishes a right for third-parties to use countermeasures, the ICJ could not legitimately find that such a right exists, and as such international law does not allow third-parties to use countermeasures.

This conclusion is important for the purpose of understanding the status of the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. It is unnecessary for the purposes of the work here to give the history of the draft articles: it is enough to know that they have been commended to the attention of governments, and currently, the issue of a convention based on the draft articles is supported by some States and not others. As such, they cannot be considered as a binding source of law without external justification from the formal sources enunciated in art.38(1) of the ICJ Statute: as of yet, the draft articles do not bind as an international convention or treaty (art.38(1)a). However, Harris acknowledges the ILC’s exercise in creating the draft articles as “a combination of codification and progressive development” of the law on state responsibility. We therefore must be cautious in the examination of the articles on invocation (art.42 and 48) and countermeasures (art.49 – 54), as while they do set out some agreed principles of international law, there is danger in assuming these articles are universally accepted by the international community.

With the above qualification in mind, we will examine the articles and customary international law to determine whether international law allows third-party countermeasures.

What is a countermeasure?

Countermeasures are “peaceful unilateral coercive measures”¹ in derogation from a subsisting treaty obligation but justified as a necessary and proportionate response to an internationally wrongful act of the State against which they are taken. The introduction to Chapter II in the draft articles states that “they are essentially temporary measures, to achieve a specified end, whose justification terminates once the end is achieved”. The definition in the draft articles is not disputed, though as we will see below, its scope of application is.

Who can use them?

The Draft articles², supported by customary international law³, confirm that directly injured States can use countermeasures. However, there is ambiguity over whether countermeasures can be used by other non-directly, or third-party, injured States, evident in both the draft articles and the existing law.

Articles 49 – 54

Notwithstanding the fact that the articles themselves are not binding without further customary international law justification, a significant amount can be deduced about the state of the existing law by looking at the language used in the draft articles.

Article 49(1) states “an injured State may only take countermeasures against a State...in order to induce that State to comply with its obligations”. Arguably, this article simply posits the rule that countermeasures may only be used to achieve a specified aim of compliance with treaty obligation, and there can be no punitive element. However, it is possible to read “an injured State may only...” as implicitly prohibiting non-injured states, that is to say “third parties” from taking countermeasures. This view is further supported by the language used in article 51 stating that “countermeasures must be commensurate with the injury suffered”, implying there must be an injury to use a countermeasure (which 3^rd parties do not have), and further by article 52, stating “before taking countermeasures, an injured State shall...” It would surely be illogical to read article 52 as laying down obligations (to be fulfilled before using countermeasures) for only injured states, implying that third parties can use countermeasures without fulfilling these prior obligations: the more logical reading of the article is that these obligations must be fulfilled by injured States prior to using countermeasures and necessarily, only injured states may use countermeasures.

Dawidowicz argues the draft articles do provide a “savings clause” for third-party countermeasures in article 54, which provides:

This Chapter [on countermeasures] does not prejudice the right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligations breached.

Art.48(1) provides that a state other than the injured state is entitled to invoke the responsibility of another State if it is protecting a collective interest or the obligation is owed to the whole international community. International law is clear on the existence of obligations owed to the international community as a whole: Barcelona traction at p.33 stated that an erga omnes obligation is owed by a State to all other members of the international community. As such, any state, injured or not, may “invoke” the responsibility of the breaching State; however, it does not follow that an erga omnes obligation necessarily gives rise to an erga omes right with a scope broad enough to include the use of countermeasures. This is so for 2 reasons:

1. The existence of a correlative erga omnes right to an erga omnes obligation is doubtful in international law since its only mention in international law is in a dissenting opinion of judge Weeramantry p.172 in East Timor. This mention in a single case, as well as conflicting academic opinion on its existence, is certainly not enough to regard it as a settled principle of international law.

2. If such a correlative right does exist, it does not include the use of countermeasures. This is evidenced by the language of article 54: in using “lawful measures” instead of “countermeasures”, combined with the commentary on this usage, which states this was intentional so as to leave the question of third-party countermeasures to be determined by the progressive development of international law, it is clear that the law does not yet permit third-party countermeasures.

As such, whether one argues these articles are a codification of customary international law or a progressive suggestion of what the law should be, the articles are, as Dawidowicz argues, “agnostic”, they do not confirm the existence of third-party countermeasures or promote their adoption.

CIL does not present a clear picture of third-party countermeasures: it is notable that all the instances of third-party countermeasures (as defined above) lack the required clear opinio juris (that such conduct is required by law). This view is supported by statements by some members of the ILC stating that State practice on third-party countermeasures was simply indicative of ‘politically motivated measures’. Dawidowicz counters that political motivation may not actually have replaced legal motivation, however, it is submitted that the “confusion of opinio juris”...