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The Problem of Enforcement in International Law: Countermeasures, the non-injured state and the idea of international community
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Dr Elena Katselli
Katselli Proukaki E
Routledge Research in International Law
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The evolution of the concepts of
norms and obligations owed to the international community as a whole, as developed in international legal theory and practice, has had a strong impact on the work of the International Law Commission for the codification of the law on state responsibility. The acceptance that not all primary international norms are of the same gravity or significance because of the nature of the rights they seek to protect could not but influence the legal consequences to derive from the violation of such norms. However, the categorization of internationally wrongful acts to serious and less serious raises significant questions concerning the enforcement of these ‘superior’ norms through countermeasures and also the subjects entitled to invoke the responsibility of the wrongdoing state in case of their infringement. This becomes even more compelling in the absence of effective and compulsory centralized mechanisms for the protection and enforcement of the most fundamental interests of the international community. The adoption of the 2001 Final Articles on State Responsibility has far from concluded the debate over the entitlement of states other than the individually injured to resort to countermeasures, which falls at the heart of this book. While the ILC has found that state practice supporting a right to third-state countermeasures in response to the violation of these collective interests is still inconclusive, the book challenges these conclusions and demonstrates, through extensive analysis of state practice, that a right to solidarity measures has become an integral part of the international legal order. The book starts with an analysis of how the notion of fundamental community interests emerged in international legal thinking and in the law on state responsibility, and proceeds to a detailed account of evidence in support of a right to countermeasures by third states in their protection. It further considers the interrelationship between the right to solidarity measures and obligations emanating from self-contained regimes amidst claims of risks of fragmentation of the international legal order and explores in some depth the significance of proportionality as a necessary legal restriction of such right.
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