CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ COUNTERMEASURES AND THEIR ȍINȎCOMPARABLE CONGRUENCE … From a functional point of view, countermeasures – alone, slightly reminding us of a speedy move in a Warcraft gameplay – would pass for a pure violation of the state’s – “ the reactor’s ” international obligations, but for their vital function of being a direct, temporary and non-violent counterpunch of the reactor, performed with a help yourself attitude 13 or, formally put, a unilateral (and not necessarily reciprocal) reply to an internationally wrongful act, committed by the other state – “ the target .” 14 According to McRae and Van Zimmeren, 15 countermeasures “ are symptomatic of a system with few or ineffective methods of recourse for wrongful acts and validate a form of unilateral retaliatory sanction. ” In contrast, Fitzgerald 16 has recently come up with a less upfront definition, defining countermeasures as “ the non- performance of State A’s international obligations towards State B, where State B is responsible for a prior internationally wrongful act, for the purpose of inducing State B to comply again with its international obligations .” Essentially, countermeasures may be adopted not only on political, but also on economic grounds to the advantage of either individual states or the whole society in case they were imposed to protect common interests, covered by obligations erga omnes . 17 Traditionally, they were related to the treatment of aliens, including their economic interests. 18 Amusingly, it is no secret that those were exactly the countermeasures that had turned out to be one of the main concerns during the International Law Commission’s deliberations (“the ILC”) on state responsibility before the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts were adopted (“the ILC Draft Articles”), 19 causing some vivid criticism in the past, as they were seen in plain sight as a muscular vision of enforcing what had to be done in order to enforce international norms. 20 Nonetheless, countermeasures 21 currently occupy a firm position among several other doctrines, including the doctrine of the state of necessity, 22 force majeure and consent. Together with distress and self-defense, they all serve as justifications of the wrongfulness of the state’s conduct in international law and are embedded as circumstances excluding wrongfulness in Articles 20-25 of the ILC Draft Articles, being currently the most authoritative source from which they have been derived. Simultaneously, it is notable that countermeasures are also well 15 VAN ZIMMEREN, E., MCRAE, D., Chapter 35: Countermeasures and Investment Arbitration, op. cit., p. 496. 16 FITZGERALD, E., Helping States Help Themselves: Rethinking the Doctrine of Countermeasures. Are Countermeasures an Effective Means of Resolving Disputes Between States?, Macquarie Law Journal , 2016, Vol. 16, p. 67-88. 17 CHAZOURNES, L.B., Economic Countermeasures in an Interdependent World, American Society of International Law Proceedings, 1995, Vol. 89, p. 338. 18 PAPARINSKIS, M., Investment Arbitration and the Law of Countermeasures, British Yearbook of International Law, 2009, Vol. 79, No.1, p. 270. 19 International Law Commission , Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10 (2001). 20 BEDERMANN, D., Counterintuiting Countermeasures, op. cit., p. 817. 21 International Law Commission , Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 22, U.N. Doc. A/56/10 (2001). 22 On treaty based necessity see in detail CHOVANCOVÁ, K., Non-Precluded Measures in International Investment Arbitration, Czech Yearbook of Public & Private International Law , 2016, Vol. 7, pp. 391-410. 13 Self-help of states. BEDERMANN, D., Counterintuiting Countermeasures, op. cit., p. 818. 14 CALAMITA, N. L., Countermeasures and Jurisdiction: Between Effectiveness and Fragmentation, Georgetown Journal of International Law, 2011, Vol. 42, p. 240.

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