Countermeasures

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Definition

Countermeasures
Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.[1]

An injured State may only take countermeasures against the responsible State if the following conditions are met:

  1. The existence of a prior internationally wrongful act of the responsible State against the injured State;[2]
  2. The internationally wrongful act has not ceased and “the dispute is [not] pending before a court or tribunal which has the authority to make decisions binding on the parties”, unless the “responsible State fails to implement the dispute settlement procedures in good faith”;[3]
  3. The injured State has called upon[4] the responsible State to fulfil its obligations arising from its internationally wrongful act;[5] and
  4. The injured State has notified the responsible State of its decision to take countermeasures, and offered to negotiate with that State, unless it is taking “urgent countermeasures as are necessary to preserve its rights.”[6]

Additionally, the countermeasures must fulfil the following requirements:

  2. Their aim must be to induce the responsible State to comply with the legal consequences of its internationally wrongful act;[7] in other words, the aim of countermeasures is restoration, not retribution; and the countermeasures can only target the responsible State;
  3. They “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question;”[8]
  4. They shall not affect “obligations under peremptory norms of general international law”[9], obligations under any dispute settlement procedure between the injured and responsible State, and obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents;[10] and
  5. They must be “commensurate with the injury suffered, taking into account the gravity” of the prior unlawful act and of the rights in question (i.e. the requirement of “proportionality”).[11]

Taken countermeasures must be suspended if the internationally wrongful act has ceased or if “the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties”, and they must be terminated as soon as the responsible State has complied with its (secondary) obligations.

Only the injured State may take countermeasures. Other States can only take other lawful measures.[12]

Whether a particular measure fulfils these conditions is an objective question,[13] while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.[14] The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely in this regard on the standard of “clear and convincing evidence”.[15] This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true.”[16] Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur responsibility for its own wrongful conduct.[17]

Appendixes

See also

Notes and references

  1. ↑ Articles on State Responsibility, part III ch II at para 1.
  2. ↑ Articles on State Responsibility, Art. 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para. 83.
  3. ↑ Articles on State Responsibility, Art. 52(3) – 52(4).
  4. ↑ Articles on State Responsibility, Art. 52(1)(a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’.
  5. ↑ Articles on State Responsibility, Art. 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  6. ↑ Articles on State Responsibility, Art. 52(1)(b) – 52(2).
  7. ↑ Articles on State Responsibility, Art. 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para. 87. The list of consequences in Art. 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  8. ↑ Articles on State Responsibility, Art. 49(3).
  9. ↑ Such as the obligation to refrain from the threat or use of force as embodied in the UN Charter, obligations for the protection of fundamental human rights, and obligations of a humanitarian character prohibiting reprisals. Articles on State Responsibility, Art. 50(1).
  10. ↑ Articles on State Responsibility, Art. 50(2).
  11. ↑ Articles on State Responsibility, Art. 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para. 85.
  12. ↑ Articles on State Responsibility, Art. 54.
  13. ↑ Articles on State Responsibility, Art. 49, para. 3.
  14. ↑ See Articles on State Responsibility, commentary to Part One, Chapter V, para. 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”).
  15. ↑ See, eg, Trail Smelter case (United States v Canada) (Award) (1941) 3 RIAA 1905, 1965; see also R Geiss and H Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in K Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”).
  16. ↑ J Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
  17. ↑ Articles on State Responsibility, Art. 49, para 3.

Bibliography and further reading

  • MN Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017)
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