Countermeasures in International Law

by

Enzo Cannizzaro, Beatrice I. Bonafè

• LAST REVIEWED: 09 July 2020
• LAST MODIFIED: 30 November 2015
• DOI: 10.1093/obo/9780199743292-0159

Introduction

Attention of legal scholarship for countermeasures has been constantly growing. The reason probably lies in fact that, in spite of the tendency of the international legal order to endow itself with an institutional setting, countermeasures still represent the main, if not the only, instrumental mechanism of enforcement at the disposal of individual states for securing implementation of their rights and interests. This explains why countermeasures do constitute a litmus test for characterizing international law and its role in contemporary international relations. In the traditional conception of international law, regarded as a legal order composed almost exclusively of primary rules and mainly based on mutual consent by states, countermeasures were prevailingly regarded as an instrument of self-help, aimed at inflicting a social cost for the wrongdoing. Coherently with that vision, the classical scholarly view tends to regard countermeasures as the object of a right of the injured states to inflict such a punishment and a duty for the wrongdoer to accept it. In the most modern views of international law, conceived of as a sophisticated set of primary and secondary rules, countermeasures are commonly regarded as an instrument of enforcement, mainly, if not exclusively, aimed at securing compliance with the law. In all evidence, this conception tends to see countermeasures not so much as a right, but rather as a power conferred by the international legal order to the injured state to have recourse to unilateral action for restoring compliance with the law. Not surprisingly, therefore, the debate among scholars has been constantly conditioned by their respective conceptions on the role of international law in the international society and on its capacity to construe an efficient legal framework for controlling unilateral action. The theoretical underpinnings of countermeasures have also influenced the scholarly debate on the precise identification of their legal regime. That debate has mainly unfolded along three different strands. The first concerns the existence of procedural limitation to the resort to countermeasures, mainly identified in the need to exhaust preliminarily amicable means of dispute settlements. The second focuses on substantive limitations to countermeasures and, in particular, the most important one: proportionality. The third strand regards the power of non-directly injured states to adopt unilateral countermeasures against a state, which has committed serious violations of erga omnes obligations and the relationship between unilateral countermeasures and institutional sanctions.

General Overviews

Countermeasures, as wrongful acts that an allegedly injured state is entitled to take against an allegedly wrongdoing state, entail a major drawback because the determination of the existence of a prior breach is left to the unilateral appreciation of the state resorting to countermeasures. Alland 1994, Focarelli 1994, Matsui 1994, and Sicilianos 1990 provide for a general account of the international regime of countermeasures. While there is general consensus on their lawfulness under international law—a consensus emerging from both state and judicial practice—the discussion has revolved around the role of countermeasures and the requirements that would reduce the risk of abuse of countermeasures by powerful states. As regarding the former, countermeasures are regarded by some (see Zoller 1984) as proper “sanctions” of the international legal order (i.e., acts by which the legal order itself represses violations of the law) and by others, such as Leben 1982, as unilateral measures of self-help whose lawfulness depends on the assessment of a prior breach. With respect to the conditions that must be met in order to consider resort to countermeasures as lawful, substantive constraints include the prior existence of a wrongful act, the principle of proportionality, and the prohibition of countermeasures involving a breach of peremptory norms, notably the use of force. O’Connell 2008 includes a detailed review of the most important case law on peaceful unilateral countermeasures. The codification work of the ILC confirmed a restricted notion of countermeasures, having no punitive purpose, and prompted debate on the procedural conditions of countermeasures, in particular on the relationship between countermeasures and dispute settlement (see following section). Noortmann 2005 offers a general study that pays particular attention to the relationship between self-help and peaceful dispute settlements. Elagab 1988 provides an analysis of more specific issues such as the lawfulness of economic coercion, the relationship between countermeasures and centralized sanctions, and the relationship between countermeasures and the law of treaties.

• Alland, Denis. Justice privée et ordre juridique international: Etude théorique des contre-mesures au droit international public. Paris: Pedone, 1994.

  In-depth theoretical analysis of the concept of countermeasures under general international law, including a comprehensive survey of the substantive and procedural conditions of countermeasures.

• Elagab, Omer Yousif. The Legality of Non-Forcible Counter-Measures in International Law. Oxford: Clarendon, 1988.

  Comprehensive analysis of the legal regime of international non-forcible countermeasures, including a discussion of the relationship between countermeasures and recourse to peaceful dispute settlement procedures, between countermeasures and the law of treaties, and the lawfulness of economic coercion under general international law.

• Focarelli, Carlo. Le contromisure nel diritto internazionale. Milan: Giuffrè, 1994.

  In-depth account of international practice concerning resort to countermeasures forming the basis for a discussion of the lawfulness of countermeasures, the proportionality requirement, and the prohibition of countermeasures involving a violation of jus cogens norms.

• Leben, Charles. “Les contre-mesures interétatiques et les réactions à l’illicite dans la société internationale.” Annuaire français de droit international 28 (1982): 9–77.

  DOI: 10.3406/afdi.1982.2483

  Stands out for its detailed analysis of international practice as well as for the contextualization of the discussion of countermeasures in the general framework of a theory of sanctions in the decentralized international legal order.

• Matsui, Yoshiro. “Countermeasures in the International Legal Order.” Japanese Annual of International Law 37 (1994): 1–37.

  The place of countermeasures in the decentralized international legal order is examined through a clear survey of the debate on the role of countermeasures as well as their substantive and procedural conditions of application.

• Noortmann, Math. Enforcing International Law: From Self-help to Self-contained Regimes. Aldershot, UK: Ashgate, 2005.

  Offers a general study of enforcement measures in a decentralized legal system. Particular attention is paid to the relationship between self-help and peaceful dispute settlements as well as to the existence of self-contained regimes under international law.

• O’Connell, Mary Ellen. The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement. New York: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780195368949.001.0001

  Chapter 6 of this book is devoted to peaceful unilateral countermeasures taken by individual states and includes a detailed review of the most important case law on the matter together with an analysis of the 2001 ILC Articles on State Responsibility.

• Sicilianos, Linos-Alexandre. Les réactions décentralisées à l’illicite: Des contre-mesures à la légitime défense. Paris: L. G. D. J, 1990.

  Besides offering a clear analysis of the conditions for resorting to countermeasures, this study sheds some light on the collective dimension of countermeasures and their countroversial use for ensuring compliance with human rights and self-determination of peoples.

• Zoller, Elisabeth. Peacetime Unilateral Remedies: An Analysis of Countermeasures. Dobbs Ferry, NY: Transnational, 1984.

  Clear and concise study of the doctrine of self-help, paying particular attention to the development of countermeasures as this concept has unfolded in international adjudication. Includes a two-fold analysis of the legal concept and the legal framework of countermeasures.