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

Part I addresses the foundations of unilateral measures: the concept of sovereignty, the limitation of international law, and the tensions between these two forces when they shape the landscape of international relations. The part also puts countermeasures in its legal context, that is, the context of unilateral acts of states. It examines the flora of unilateral measures and where countermeasures belong in that chaotic structure.

Some authors suggested that the concept of sovereignty is a mistaken one and that its role in the international system is over bloated.⁵ Nevertheless, its underlying principles are arguably a shaping force in international relations—a resilient restraint on the development of international law. The scholarly debate suggests that state sovereignty is the basis for a state’s right to take unilateral measures, whereas international law limits this right. However, under the countermeasures doctrine, a state can go beyond the limits of sovereignty and exercise rights they otherwise would not have.

In part I, the countermeasures doctrine begins to form. This part suggests that the doctrine only includes measures that require a special justification to be legal. Other unilateral measures might require a political justification, but the determination whether the measures taken are, in fact, politically justifiable is outside the scope of this book. Among such measures are sanctions authorized by the United Nations Security Council. They cannot be seen as countermeasures, even if they are taken in response to violations of international obligations; their immediate justification is sought in the UN Charter and the authority of the Council to adopt resolutions binding upon all United Nation (UN) member states.

In part II, the elements of the countermeasures doctrine are analyzed. It is divided into four main chapters. The first chapter (chapter 8) examines certain considerations related to the basis for the legality of countermeasures, such as the presence of a prior breach. The second chapter discusses certain procedural requirements states have to fulfill before countermeasures are taken. Then the issues of proportionality and prohibited countermeasures, that is, what acts cannot be justified as countermeasures, are addressed. The last substantive chapter of part II examines conditions under which some theories might preclude the legality of countermeasures.