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Law Notes Public International Law Notes

State Responsibility Essay

Updated State Responsibility Essay Notes

Public International Law Notes

Public International Law

Approximately 460 pages

Public International Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the major LLB aspects and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Canada, Hong Kong or Malaysia (University of London). See if you like them by referring to the samples below. We've also included our previous years' authors free of charge, to give you some extra materials to refer to for the tricky topi...

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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 3rd 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...

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