Countermeasures: Concept and Substance in the Protection of Collective Interests

Katselli, E

doi:10.1163/ej.9789004175877.i-594

Countermeasures: Concept and Substance in the Protection of Collective Interests

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Abstract

Recent violence and human rights abuses targeted against political opponents or specific ethnic groups such as in Zimbabwe under the regime of Robert Mugabe and in Sudan bring to the fore questions regarding the role of the international community and individual States in situations like these, but also the significance of countermeasures taken in the collective interest, so-called solidarity measures. While international law has progressed in some respects by allowing the international criminal responsibility of the perpetrators of atrocities which amount either to war crimes or crimes against humanity, international law has remained under-developed in the area of State responsibility and enforcement of international norms owed to the international community as a whole. The concept of countermeasures taken in the collective interest is one which has developed through the work of the International Law Commission (ILC) on the codification of the Law on State Responsibility, but also through State practice and opinio juris. The growing recognition that certain principles and norms are owed to the international community as a whole has led to the understanding that the circle of states affected by a given infringement of a norm of this nature is necessarily wide, giving rise to the question of whether States not directly affected by such an infringement may resort to countermeasures. The question has proved to be a controversial one with some States expressing their concerns over giving a blank cheque to States to act in violation of their international obligations in the pretext of collective interests and with the ILC deciding not to incorporate a right to solidarity measures in its 2001 Final Articles on State Responsibility. Nevertheless, the possibility of future recognition of a right by States other than the injured to resort to such countermeasures makes their study of a continuous interest. This chapter provides a brief analysis on how the concept of third-State countermeasures has evolved, but also on the legal parameters that should be attached to such a right. Finally, the chapter looks into some examples of State practice not considered by the ILC and which in the author’s view re-enhance the existence of a right to solidarity measures.