Countermeasures, the non-injured state and the idea of international community

Abstract

The evolution of the concepts of jus cogens norms and obligations owed to the international community as a whole has had a strong impact on the work of the International Law Commission for the codification of the law on State responsibility. The acceptance that not all primary international norms were of the same gravity or significance because of the nature of the rights they seek to protect could not but influence the legal consequences to derive from the violation of such norms. However, the categorization of internationally wrongful acts to serious and less serious raises significant questions concerning the enforcement of these 'superior' norms, but also the subjects entitled to invoke the responsibility of the wrongdoing State in case of their infringement. Yet, the adoption of the 2001 Final Articles on State Responsibility has far from concluded the debate over the entitlement of States other than the individually injured to resort to countermeasures. Whilst the ILC has found that State practice supporting a right to third-State countermeasures in response to the violation of these collective interests is still inconclusive, Article 54, which makes a general reference to "lawful measures" rather than "countermeasures", leaves the settlement of the issue to the further development of international law. The question of third-State countermeasures becomes even more compelling in the absence of effective and compulsory mechanisms for the protection and enforcement of the most fundamental interests of the international community. The current research attempts to unfold the notion of third-State countermeasures as explored in the work of the ILC and as developed in international theory and practice. Most important, and in view of the possibility of the recognition of a right to third-State countermeasures in the future, this work places particular emphasis on the need of restraint, and in particular on the principle of proportionality.