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Countermeasures by Non-Injured States in the Law on State Responsibility

Lookup NU author(s): Dr Elena Katselli

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Abstract

The adoption of the Final Articles on the Responsibility of States for Internationally Wrongful Acts in 2001 by the International Law Commission (hereinafter the ILC), has far from concluded the debate over the entitlement of non-injured States to resort to countermeasures. Whilst Article 54, due to lack of sufficient State practice, limits the right of any State entitled to invoke responsibility under Article 48 only to lawful measures rather than countermeasures, the Commentary leaves the settlement of the issue to the further development of international law. The increasing significance of the notions of peremptory norms and obligations owed to the international community as a whole in contemporary international law, and the lack of effective and compulsory enforcement mechanisms in the international legal arena, make the question of third-State countermeasures even more compelling than ever before. The purpose of this paper is to give an account on how the notion of third-State countermeasures first made its appearance and developed in international law and within the work of the ILC, and address the main concerns that made the ILC abandon the idea at least for the time being. It will then focus on how these concerns might be met today, especially in the light of lack of consensus among States on what safeguards could be provided against abusing the right to countermeasures, in particular the principle of proportionality.

Publication metadata

Author(s): Katselli E

Publication type: Report

Publication status: Published

Series Title:

Year: 2005

Pages: 8

Institution: European Society of International Law

URL: http://www.esil-sedi.eu/fichiers/en/Katselli_874.pdf

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