CYIL vol. 8 (2017)

KATARÍNA CHOVANCOVÁ CYIL 8 ȍ2017Ȏ rooted in Articles 49-54 of the ILC Draft Articles, which stipulate their objects and limits 23 as well as obligations, which are from the viewpoint of the countermeasures’ applicability practically “untouchable” and can under no account be affected by countermeasures. 24 At the same time, there are five procedural and substantive conditions to fulfil before a lawful imposition 25 of countermeasures may be anticipated, 26 and finally, their termination and also an inevitable proportionality as the general principle for assessment of the countermeasures’ lawfulness. 27 Conceived initially with the highest goal being an inducement by the acting state of the targeted state into compliance with its international obligations, which leads to restoration of equilibrium, desolated by the wrongful act of the targeted state, countermeasures have actually shown much broader stabilizing potential by their very existence, even without being applied against anyone. Accordingly, as Fitzgerald 28 noted, “the mere existence of countermeasures as a potential consequence of derogation from international rules can be coercive, restraining the conduct of states that would otherwise breach international obligations with impunity.” Thus the mechanism of countermeasures should be perceived as a unique horizontal enforcement mechanism, available to all states willing to fight for their international rights. It is submitted that hitherto the outcome of the most cited cases concerning countermeasures in international law has been two arbitral awards, delivered with a fifty-year-long gap, first in the Naulilaa arbitration 29 in 1928 and later in Air Services Agreement arbitration 30 in 1978, before the third relevant decision on countermeasures – though being criticized as not of much help due to the paucity of its consistence 31 – was made by the ICJ in its notoriously known judgement rendered in the Gabčíkovo-Nagymaros Project 32 case. First and foremost, the Naulilaa arbitration concerned countermeasures within the context of forcible reprisals, but except for following the rule that fragile things need special handling 33 when stressing that reprisal should not be too disproportionate, otherwise left the prospective acting states perplexed and – said as metaphor – without a guide or light. 26 Draft Articles, op. cit , see art. 52. The countermeasure, proportionate, reversible and taken for a coercive purpose must be a response of the reacting state to an internationally wrongful act of the targeting state. Preceding negotiations are unavoidable and obligatory, as well as an explicit call for discontinuance of the wrongful conduct, or to provide appropriate reparations. See also Draft Articles, op. cit , art. 52 (1) in conjunction with art. 43 (2). 27 FRANCK, T.N., On Proportionality of Countermeasures in International Law, The American Journal of International Law , 2008, Vol. 102, p. 715. See also Draft Articles, op. cit , art. 51. 28 FITZGERALD, E., Helping States Help Themselves, op. cit ., p. 71. 29 Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (Portu v. Ger.), 2 R.I.A.A. 1011 (1928). Avaliable at http://legal.un.org/riaa/dtSearch/Search_Forms/dtSearch.html 30 Air Services Agreement of 27 March 1946 (U.S. v. Fr.), 18 R.I.A.A. 417 (1978) Air Services Award. Available at http://legal.un.org/riaa/dtSearch/Search_Forms/dtSearch.html 31 BEDERMANN, D., Counterintuiting Countermeasures, op. cit., p. 820. 32 Gabcikovo-Nagymaros Project (Hungary/Slovakia) , Judgment of 25. September 1997, I. C. J. Reports 1997. 33 The arbitral tribunal in the Naulilaa arbitration at least laid down two basic rules with respect to armed reprisals which served later as a model for launching countermeasures. In the first place, reprisals might be taken only against a previously committed international wrongful act. In addition, arbitrators made a demand for compliance or reparation obligatory as a condition preceding taking of reprisals. 23 Draft Articles, op. cit , see art. 49. 24 Ibid ., see art. 50. 25 See e.g. CALAMITA, N. L., Countermeasures and Jurisdiction, op. cit ., p. 239.

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