‘The concept of third-party countermeasures […] was among the most controversial topics addressed by the ILC [International Law Commission] in its work on State responsibility. In a decentralized international legal system, which lacks an institutionalized regime of general law-enforcement, there is a straightforward question: Should States be permitted to act unilaterally as “international [police]” and enforce the most serious breaches of international law; or should this rest with treaty-specific enforcement mechanisms, in particular the UN Security Council’ (Dawvidowviczh).
In 2001 the Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission (ILC), brought about much lacuna to the widespread debate that has grappled the arena of international Law on the entitlement of third-party States to recourse to countermeasures. What would have ordinarily been an illegal act by one state to another in the form of unilateral sanctions of a peaceful nature as provided for in Article 48 of the ILC on State Responsibility. I am of the view that since 2001 enough practice coupled by opinio juris have evolved has developed to accept third party countermeasures as part and parcel of contemporary international Law. “Third-party countermeasures are often resorted to by a large (and increasingly diverse) number of States acting in concert as part of a broader strategy to deal with major assaults on multilateral public order. And yet their legal position ‘has been and remains uncertain” (Dawvidowviczh). Due to the growing importance of peremptory norms and jus cogens and the fact that there is still the unwillingness of the UN Security Council to effectively serve as enforcement agent and the total lack of effective enforcement mechanism in the sphere of International law the issue of third-party counter measures is of fundamental importance and seemingly very compelling and the widespread use of third-party countermeasure by a large amount of states has now made it more relevant in International Law and should thus take its rightful place with the right legal standing so to do.
In discussing the above question I shall proceed to list the state practice on third party countermeasure and the opinio juris that has been developed in International Law and then conclude by giving reasons why I am of the view that In a decentralized international legal system, which lacks an institutionalized regime of general law-enforcement, States should be permitted under International Law to adopt third party counter measures and enforce the most serious breaches of international Law rather than leave this to the United Nations Security Council nor with Treaty- specific enforcement mechanisms.
State Practice on Third-party Countermeasures
In retaliation to the violence in Libya against the civilian population by the Government of Colonel Gadaffi, Switzerland took measures that froze assets belonging to the Libyan Central Bank and Mr. Gadaffi himself. The United States soon took similar measures and so did the Council of the League of the Arab states when they unanimously voted to suspend Libya from the Arab League (Dawidowicz). It is worthy to note that this decision by the Arab League was welcomed by the Security Council. There are some arguments being advanced that the decision of the Council of the League of Arab states was effectively third-party countermeasure ad this went further to demonstrate their acceptance of this principle and what is worthier to note is the fact that all these decisions were taken prior to the Security Council’s decision to effect enforcement measures against Libya.
In May 2011, EU Member States imposed various unilateral sanctions against Syria in response to the massive violations of international human rights and humanitarian law committed by the Syrian regime. The EU sanctions regime against Syria has since been renewed and broadened on numerous occasions. It includes, inter alia, the freezing of assets belonging to President Al-Assad and the Central Bank of Syria. Several countries have since associated themselves with the EU sanctions regime and vowed to guarantee its implementation. Australia, Canada, Japan, Switzerland and the United States have also taken similar action against Syria (Dawidowicz).
Again, just as in the case of Libya the Arab League unanimously suspended Syria from its membership which was clearly not in conformity to the provisions of Article 18 of the Pact of the League of Arab States. They went on to unilaterally freeze assets of the Syrian government and senior government officials. The league proceeded to impose a ban on civil aviation though the implementation of this was not carried out however this was against Treaty obligations owed to Syria with respect to aviation and there has been no justification or legal standing to do so. Turkey in solidarity with the Council of Arab States also froze assets belonging to President Al- Assad and the government of Syria (Dawidowicz)
The OIC suspended Syria from its membership without any clear legal base for doing so under the OIC Charter and in February 2012, US Secretary of State Clinton called for ‘friends of democratic Syria’ to unite against President Al-Assad based on the following rationale:
“Faced with a neutered Security Council, we have to redouble our efforts outside of the United Nations with those allies and partners who support the Syrian people’s right to have a better future” (Dawidowicz).
The widespread willingness and seemingly systematic approach of a large number of states that have identified themselves as “group of friends of the Syrian people” which is being championed by Sarkozy- President of France clearly demonstrates the general acceptance and adoption of third party counter measure as an effective tool in enforcement mechanisms that is void due to the lack of the willingness and seeming refusal of the Security council to implement enforcement measures against Syria. The group continues to call for all states who are yet to implement such measures against the Syrian government and they have demonstrated public support to sanctions by the EU and other member states that have taken a similar approach against the Syrian regime of Al-Assad that would eventually see the total isolation of the Syrian regime.
“In March 2014, EU Member States imposed various unilateral sanctions against Russia for its role in the destabilisation of Ukraine. The EU sanctions regime against Russia has since been renewed and broadened on several occasions. It includes, inter alia, unilateral sanctions against the financial, energy and defence sectors of the Russian economy. The US and Switzerland have also joined the sanction regime against Russia. As all states mentioned belong to WTO, it may thus appear that what has been adopted by them is a third party countermeasure.” (Dawidowicz)
opino juris on Third-party Countermeasures
“Article 54 of the Articles on Responsibility of States for Internationally Wrongful Acts -Measures taken by states other than the injured state This chapter [on countermeasures] does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached”(ILC Draft Articles 2001).
The above provision clearly shows the refusal or lack of commitment of the ILC in addressing the issue on the controversy surrounding third-party countermeasures. It also serves to show that as far as the ILC was concerned there were “no clearly recognised entitlement to take third-party countermeasures under international law”. However there has been significant and widespread state practice on the matter and there seems to be ample opinio juris on the issue as opposed to 2001 when the draft Article was adopted. In 2001 the ILC commentaries stated that the issue of third-party counter measure was at its embryonic stage and was very limited and being practiced by a few western states.
The situation is rather different as demonstrated in the examples of Libya and Syria. State practice on third-party countermeasures is far from being in its embryonic stages nor can it be described as limited. It is virtually impossible to now limit its practice to western states alone and even though they remain key players the position taken by the Arab League has now shifted the post from a western state affair to that of a global position. This then begs to put third-party countermeasures in its place as a rule of customary International law.
ICJ in the Asylum case, practice on third-party countermeasures was apparently ‘so much influenced by considerations of political expediency’ that it was not possible to discern any opinio juris (Davidovich). Thus, one can conclusively argue that the difficulty in distinguishing third-party counter measures as a rule shaped by law or as a political tool is very hard to discern because states clearly as shown above do not refer to the legality as the basis of their actions. With considerable opinio juris on the matter of politics and international relations being the determinant factor to third party countermeasure or whether it finds its place in international law, I am firmly of the view that the former takes precedence as demonstrated in the following Opinio juris:
- “The Council of the European Union in 2004 released a policy statement on the use of sanctions (known in EU parlance as ‘restrictive measures’ or ‘autonomous sanctions’), which in relevant part provides:
‘If necessary, the Council will impose autonomous sanctions [including third-party countermeasures] in support of efforts to … uphold human rights, democracy, the rule of law and good governance. We will do this in accordance with our common foreign and security policy, as set out in Article 11 TEU, and in full conformity with our obligations under international law.”
- ILC Special Rapporteur Wood has also made a distinction based on cases involving the assertion of a legal right and those acknowledging a legal obligation. By parity of reasoning, it may be presumed that the sheer adoption of third-party countermeasures by a State entails recognition of the legal power to do so”
The mere fact that the ILC after much debate on the issue of third-party countermeasure deliberately failed to address the issue in ILC Articles on Responsibility of States for Internationally Wrongful Acts and rather left it to be developed under International Law demonstrated the lack of ample state practice and the embryonic nature of this principle at the time. Also, key was the lack of agreement amongst states with regards to how countermeasures may be protected from wanton abuse by states especially where the issue of proportionality is in question. Article 54 limits the right of a state to invoke lawful measures under Article 48 and not countermeasures. Should states be allowed to carry out acts that may put their population or the international community at risk simply because the security council has failed in their foremost duties and responsibilities? My answer to this is no and the only remedy available now is the effective use of third-party countermeasure to give some semblance of functionality to the international order. There are no better words to justify the imminent place that third-party countermeasure as a rule of customary International Law than to end with the words of Dawidowicz where in full agreement with the opinion of EU member states he stated thus:
“In the opinion of EU Member States, third-party countermeasures (e.g. in the form of otherwise unlawful asset freezes) are evidently a frequent tool of communitarian law enforcement used in full conformity with international law. To conclude, the argument that opinio juris is unclear is ultimately unconvincing – it is not borne out by international practice. The category of third-party countermeasures is needed to explain this practice in legal terms. During the final stages of the ILC debate, supporters argued that recognition of third-party countermeasures would have been ‘a legitimate form of progressive development of international law”( Dawidowicz).
Melville Robertson Roberts
University of Oxford
Dawidowicz, M. (2017). Third-Party Countermeasures in State Practice
Dixon, McCorquodale & Williams Ch 11
Crawford J, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries (CUP 2002) – Introduction (pp1-60)