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

There is no doubt that countermeasures can put in motion forces that are destructive for the international system. Therefore, countermeasures have to be exercised with caution and with full respect for their limitations and restrictions. Their justification is sought in the imperfection of the international system, that is, the lack of effective adjudication mechanism associated with equally effective enforcement mechanism. In such a system of international law, “the risk of countermeasures may actually be the only effective deterrent to the commission of internationally wrongful acts.”⁶

Part II clarifies the countermeasures doctrine by addressing the individual elements of it. This part suggests that the doctrine’s primary element is the presence of a prior violation of an international obligation owed to the state taking the countermeasures, attributable to another state or states. Although states other than the one directly injured by the violations can take countermeasures, their authority to take such measures is somewhat in proportion to the injury and much more limited than the right of the directly injured state to resort to such measures.

This part also suggests that prior to taking countermeasures, the injured state has to comply with certain procedural requirements, such as requesting the offending state to comply with its obligations and/or pay reparation, notifying the responsible state of the prospective countermeasures, and offer negotiation.

Part II suggests that even if the right to resort to countermeasures has been established, the means and methods are not unlimited. First, the injured state is precluded from violating certain obligations. Among them are the ban against the use of force under the UN Charter, fundamental human rights, prohibition of reprisals against protected persons under humanitarian law, and peremptory norms of international law. In addition to an absolute ban against certain methods, the principle of proportionality also restricts the means chosen by the state. This means that the measures taken should be proportionate to the injury suffered and the rights in question, as well as what is necessary to obtain the legitimate objectives of the measures.