Countermeasures, the International Legal System, and Environmenta ...

The right of countermeasures is partly based on the assumption that a sovereign state has an inherent right to self-preservation to prevent violations of international obligations that deprive it of peaceful enjoyment of its legal rights. It is partly based on the fact that there is no supranational institution with broad powers to enforce international law; the enforcement is still largely in the hands of the sovereign states. The ILC suggested that countermeasures be seen as “a form of self-help, which responds to the position of the injured State in an international system in which the impartial settlement of disputes through due process of law is not yet guaranteed.”³ Even when such a dispute settlement mechanism is present, states often choose not to refer their disputes to a third party; arguably, all states have the propensities “to refuse to accept any higher authority.”⁴ Because the use of countermeasures infringes legal rights belonging to other sovereign states, it might be said that the countermeasures doctrine represents the fault lines of the Westphalian state system, a collision between the international legal order and the exercise of sovereign state powers. Because of the constraints of the Westphalian state system, one might say that attempts by a state to interfere with actions of another are attempts to create cracks in the system. Such assertion is, however, mistaken; unilateral acts of states, including countermeasures, are an inherent part of the system. They are woven into the fabric of relations between the sovereign states, an indispensable part of the dynamic of the international system, and an important source of changes within it.

(C) Use of Countermeasures in Defense of Environmental Interests of States

In the past 3 decades or so, environmental interests have received increased attention by states. Perhaps this is because of advances in science, increased awareness about relations between the environment and public health, the emergence of acceptable alternatives to environmentally harmful practices, or general economic development, which increases pollution and pressure on natural resources and provides wealth to counter such pollution and pressures.