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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 thirdparties 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.
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