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

It must be noted that the determination of proportionality is not a precise science. Therefore, a certain approximation is sufficient in order to find countermeasures to be proportionate.

Finally, various scholars and governments have suggested that the presence of alternative methods of dispute resolutions can eliminate, reduce, or delay the right to resort to countermeasures. This book questions such approaches. It opines that an ongoing good faith negotiation and access to a binding dispute settlement mechanism do not prevent an injured state from taking countermeasures. However, in the event and to the extent that the dispute settlement mechanism provides an effective remedy for the injured state, capable of providing comparable results and guarantees as countermeasures, the injured state’s right to take countermeasures might be restricted.

There is no doubt that the elements of countermeasures are and will be a matter of significant debate. Part II concludes by suggesting that the international system needs a regime of countermeasures because its ability to resolve international disputes and enforce such settlements is underdeveloped.

Part III examines six cases where states resorted to unilateral measures in order to protect environmental interests. The cases are divided into two sets. The first set contains two cases regarding unilateral measures taken by coastal states in response to alleged violations of international obligations related to the exploitation of straddling fish stocks. In all of the cases in the second set, the question of the legality of the measures taken was submitted to a WTO panel.

These cases reveal a number of problems and opportunities for the application of the countermeasures doctrine. The one problem that stands out is endemic in the environmental regime—the lack of clear substantive legal obligation to conserve and protect the environment. It is also notable that the cases, which seem compatible to the countermeasures doctrine, involve the law of the sea, which is probably the most comprehensive regime related to the environment.

Five of the six cases are argued in a legal framework that seems, on the surface, not particularly susceptible to the countermeasures doctrine, that is, the WTO framework and the EEA framework.