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 principleThe 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 principleCounter-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 principleThe 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 principleA 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.
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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