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1.
Introduction
One of the most important tasks today in State responsibility is
to establish a satisfactory regime for the settlement of disputes.
Within that regime, the issue of disputes over counter-measures is
of particular significance. At present there are few established
legal constraints on non-forcible counter-measures, apart from the
criterion of proportionality and the prohibition of
counter-measures violating individual human rights or rights of
protected persons under international humanitarian law. Since
counter-measures are quite frequently used, and can tend to
exacerbate disputes, there is a clear need for the Commission to
propose a balanced regime to allow disputes over allegedly
unlawful conduct leading to the taking of counter-measures to be
resolved.
It is necessary first to
identify what principles should apply to the settlement of
disputes in relation to counter-measures. This needs to be done,
independently of the question whether any of them reflect present
international law.
I would discuss six general principles which should apply to the
settlement of disputes in relation to counter-measures. Stated
somewhat schematically, they are as follows.
A. First principle
The function of a civilized legal system is to restrict the scope
for reprisals (as distinct from collective action).
Unilateral breach of an international obligation in response to
the breach of another international obligation is a crude and
unhappy way of responding to unlawful conduct. This is especially
so when (a) the breach need not relate directly to the initial
wrong; (b) the principle of proportionality will necessarily apply
in a rather approximate way.
Both (a) and (b) seem to be necessary corollaries of the
permission of counter-measures. Except in the context of special
reciprocal regimes such as diplomatic relations, where every
sending State is also a receiving State, to limit counter-measures
to strictly reciprocal action would be arbitrary in its incidence.
In respect of any particular rules or institutions, States are in
unequal positions - upstream and downstream States;
primary-producing States and importers of primary produce;
capital-importing and capital-exporting States; States with
extensive military capacities as against States with little or no
capacity, etc. A system limited to reciprocal counter-measures
would be unworkable. But once one has allowed that
counter-measures may be taken in relation to rules of a different
character than that alleged to have been violated, it follows that
the principle of proportionality has to be applied in a rather
loose way.
The point is that once these two positions are allowed, the need
for other safeguards in relation to counter-measures becomes more
pressing.
B. Second principle
Counter-measures can only be taken in response to an actual breach
of the law, and only by or on behalf of a State which is injured
by that breach. It is not sufficient for a State to justify
unlawful conduct (as distinct from lawful but unfriendly conduct,
i.e. retorsion) by asserting a belief that this is in response to
conduct which is unlawful. The conduct must actually be unlawful.
A State which takes counter-measures to that extent acts at its
peril.
As to which States are to be regarded as ‘injured’ for this
purpose, the International Law Commission has already adopted a
broad definition of ‘injured States’, especially in relation to
multilateral legal wrongs such as international crimes and
breaches of human rights. On the one hand it would be a mistake to
limit counter-measures to conduct directly injuring another State,
given the importance of human rights protections. On the other
hand if third States are to be regarded as injured by breaches of
human rights, all third States should be so regarded. The
‘protection of human rights and fundamental freedoms’ is not the
same thing as the protection of nationals, co-religionists,
members of one’s own culture, etc. although the two overlap.
Again, this conclusion necessarily broadens the range of States
which can take counter-measures, and thus increases the need for a
satisfactory system for resolving disputes. It also presents a
range of problems under the rubric of ‘differently interested
States’. For example, what if a dispute over a given multilateral
violation has been resolved through negotiation between the State
concerned and one or more States which protested against the
violation but are now satisfied with the action taken? Can a third
State which has not participated in those discussions effectively
reopen the issue? How is the principle of proportionality to be
applied to counter-measures taken by a number of States, perhaps
with little or no coordination between them? These problems are
not unique to the topic of counter-measures: they apply equally,
for example, to the question of what constitutes ‘full
reparation’.
C. Third principle (corollary of the first two principles)
A State taking counter-measures places in issue between itself and
the target State both the legality of its own conduct and the
legality of the conduct to which it is responding. Neither State
should be able to insist on a unilateral judgment of legality in
either respect. Moreover, ‘each move and countermove cannot be
definitively appreciated legally otherwise than on the basis of a
settlement of the original dispute of fact and law relating to the
primary rules’.
D. Fourth principle
The purpose of counter-measures should be to redress the grievance
of the State taking the counter-measure in respect of the conduct
of the target State. As we have seen, that grievance only exists
if the latter conduct is in truth unlawful (second principle,
above), although the position will be aggravated if the injured
State is continuing to suffer actual damage as a result of any
breach. Thus the purpose of counter-measures should be regarded as
met if (a) an expeditious procedure for determining the legality
of the conduct in question is triggered; and (b) the injured State
is not continuing to suffer avoidable damage as a result of the
breach, i.e. the target State is doing all it can reasonably do to
avoid or mitigate the damage.
E. Fifth principle
A primary form of redress for unlawful conduct is restitution (restituo
in integrum). Similarly the regime of counter-measures should
encourage counter-measures which can themselves be reversed in
their effects, and should discourage counter-measures which do
irreversible harm.
The proportionality rule may be too general in character to be
relied on as the only way of achieving this result. Moreover the
proportionality rule seeks to measure the character and effects of
the breach as against the character and effects of the
counter-measures taken in response. It may not be well adapted for
taking into account any continuing effects of the counter-measures
after restitution or reparation has been provided or the primary
dispute settled. The latter issue will almost always be
speculative and hypothetical at the time the counter-measures are
taken.
On the other hand what is irreversibility for this purpose needs
to be viewed broadly. For example, the cancellation of a licence
or permit can be reversed in effect by the issue of a new licence.
Damage of a financial character (e.g. loss of profits or interest)
is rarely irreversible, although the consequential effects of such
damage (e.g. the insolvency of the company in question) might well
be irreversible. To some extent the latter problem may be avoided
through a distinction between direct and indirect or consequential
effects of unlawful conduct.
F. Sixth principle (corollary of principles 1-5)
Counter-measures should be regarded as equivalent to interim
measures of protection of the interests and rights of the injured
State, differing only in that they are decided on, in the first
instance, by the State itself and secondly that the State may be
entitled to take further action if the target State fails to
cooperate in the resolution of the dispute. By contrast, in the
case of interim measures of judicial protection this would require
a further application to the court or tribunal, a step which would
often not be taken on the grounds that it would be futile.
Conclusion:
Discussions about counter-measures tend to take place at two
levels. At one level the position is clear: in the white corner we
have the injured State, innocent and aggrieved; in the black
corner, ‘the State which has committed the internationally
wrongful act’, truculent but clearly in the wrong. And this is
sometimes the case. One's habituation as a student of
international relations and of international law to discerning
minute variations in shades of grey must not be allowed to prevent
the recognition and even the denunciation of real evils, by
whomever committed. Thus at another level many disputes over State
responsibility raise genuinely difficult issues, where it is not
clear which State is ‘in the wrong’, and where the encouragement
of counter-measures is likely to exacerbate matters still further.
No doubt the interests of good relations, policy and reciprocity
will mean that States will be cautious before taking
counter-measures, and the recognition that when doing so they must
offer a form of third party settlement should assist in that
regard.
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The
author can be reached at:
AashishSrivastava@legalserviceindia.com /
