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The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community

Submitted by on 18/05/2010 – 11:23 am3 Comments

The problem of enforcement in international law is one that has undermined not only the effectiveness of the international normative system but also its credibility. For many international law sceptics there is only so much that international law can do. To expect the international system to offer true justice to the states comprising it is perhaps a utopian idea that cannot be fulfilled simply because the system does not have the required mechanisms in place and the ability to achieve this.

This book does not disregard the realities on the ground and the limitations of international law which prevent it from being effective and enforceable. Nevertheless, it pursues to demonstrate that certain changes of compelling legal significance have occurred in the last five or six decades strengthening the rule of international law.

The book starts with an analysis of how the concepts of peremptory norms (jus cogens) and obligations owed to the international community as a whole (erga omnes) emerged in international legal thinking and practice. The understanding that certain fundamental legal principles exist, the preservation of which lies in the legal interest of the international community as a whole, has provided a new basis for the understanding of international law. Accordingly, whilst concepts such as state consent, sovereignty and equality still constitute the foundation stones of the international legal system, these new concepts illustrate that there are certain common legal interests that keep the system together.

The emergence of these concepts has exercised a huge influence on the work of the International Law Commission (ILC) on state responsibility. This means not only that wrongful acts are now categorised as “serious” and “less serious”. Most importantly, it signifies that the spectrum of states interested in invoking the responsibility of the wrongdoing state that infringes these common legal interests is widened. In this context, countermeasures, namely non-forcible unilateral measures in violation of international law in response to another violation, play a pivotal role in international enforcement. Nevertheless, the entitlement of not directly injured states to resort to countermeasures in protection of fundamental community interests has proved to be more controversial.

The book explores the manner with which the ILC incorporated the notions of jus cogens and erga omnes in its deliberations on the codification of the law on state responsibility. Critically assessing the ILC’s conclusions that state practice does not support a right to third state countermeasures, the book provides an extensive analysis of state practice and opinio juris which demonstrate, sufficient evidence for the existence of such norm.

Truly, the analysis of the ILC’s conclusions and state practice has not been without obstacles. On the contrary, such analysis stumbled on often confusing and contradicting findings. The ILC itself, whilst for a number of years seemed to support the concept of third state countermeasures, reflected in the Draft Articles on State Responsibility adopted in 1996, drastically changed its position with the adoption of the Final Articles a few years later. Disagreement between states, but also fears of abuse of such mechanisms of “private justice” led to the preclusion of the concept from the 2001 Final Articles. Quite significantly, however, the ILC did not intend to conclusively settle the matter, leaving it to the progressive development of international law.

In concluding that current customary international law does not support the existence of a norm allowing not directly injured states to resort to countermeasures, the ILC did not engage in in-depth consideration and analysis of state practice and opinio juris. The book thus undertakes detailed research on the conduct of states which provides substantial evidence that such conduct satisfies both elements for the development of such customary rule.

After close consideration of state practice, the book then looks into the inter-relationship between countermeasures under general international law and obligations emanating from self-contained regimes such as the European Union and the World Trade Organisation. It is submitted in this regard that whilst states must abide by their international obligations emanating from such regimes, they retain their general right to resort to countermeasures. This is so even if this results in the violation of such specific obligations. This is justified on the fact that countermeasures constitute a powerful legal mechanism of enforcement of general international law, particularly when fundamental community interests are at stake.

Finally, the danger of abuse is considered in the last chapter of the book. Construing countermeasures within very specific legal parameters and only after the legal requirements as set out in customary international law have been met the book argues that the principle of proportionality is very important. This is particularly so in relation to third state countermeasures which must not lead to disproportionate reaction significantly undermining the rights of the targeted state. In this regard, it is emphasised that for purposes of legal certainty and predictability the principle of proportionality must be clearly set out. To this end, countermeasures should not be confined to an assessment of equivalence between the breach and the response. Rather, they should be individually assessed in the light of the aim to be pursued and the appropriateness of the means and methods used to achieve cessation and non-repetition of the wrongful act.

The book aims to make a contribution to the literature on the question of enforcement of fundamental community interests. In this regard, it aims to show that the significant changes that occurred with the emergence of the concepts of jus cogens norms and obligations erga omnes have altered the way the law on countermeasures should be construed, ensuring effective protection against violations. This can be achieved through reliance on customary international law empowering states other than the injured to resort to countermeasures with the purpose of ensuring cessation of the wrongful act and non-repetition.

Any comments and thoughts are much welcome.

Dr Elena Katselli Proukaki
Lecturer in Law
Newcastle University