Book Chapter
Reference
Other non-derogable obligations
BOISSON DE CHAZOURNES, Laurence
BOISSON DE CHAZOURNES, Laurence. Other non-derogable obligations. In: Crawford, James.. et al. The law of international responsibility . Oxford : Oxford University Press, 2010. p. 1205-1214
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Chapter 86
OTHER NON-DEROGABLE OBLIGATIONS
LAURENCE BOISSON DE CHAZOURNES
1 Countermeasuces and diplomatie ]aw 1206
2 Countermeasures and measures of economic and politica.l coercion 1209 3 Countecmeasures and international protection of the envuonment 1211
Further r(ading 1214
The topie of prohibited countcrmeasurcs requires considc:racion of (hase norms from which no derogacion is permitted. What is at issue is the intransgressible character of cenain norms, or wherher chey be10ng to the caregory of perempcory norms (jus togem).
Equally, prohibired countermeasures raises
me
issue of the relationship between, on the one hand, the general rules of Srate responsibility, and on the other, the specifie rules which a given creary or group of treaties may enunCÎate in rdation ro thdc violation.According CO Special Rapporteur Arangio-Ruiz:
rhis problem seems ID arise in che presence of mose treaty·based systems or rombinuions of systems which rend to address, within their own contracmaJ or special framework, the legal regime goveroing a considerable number of relationsrups among the States parties, including in particular the conse- quences of any breaches of the obligations of States parties under the system. Such consequences include, in some cases, special, sometimes instirutionalized, measures against violacions. Ir follows thar such systems may, (0 sorne extenc, affect, wich varying degreesof explicicness, the jacultiofSclte5 parties to re50rc to the remediaJ measures which are open to them under general internatÎonallaw.1
The notion of'sdf-contained' regimes has becn evoked in chis regard. Accorcling to Special Rapporteur Riphagen, the notion of 'self-contained regimes' can he conceived as 'an ordered. set of conclliee rules, procedural rules and staeus provisions, which [forrn] a closed legal circuit for a particular field offacrual telacionships'.2 Within such a system, primary and secondary cules are closely inrerrwined. The notion is understood diffe.rently by Bruno Simma, who uses the expression 'self-contained regime' in a narrower and more precise sense to designate a category of sub-systems, namely those comprising, in principle, a complete (exhaustive and defined) collection of secondary rules. A 'sdf-conrained regime' would thus he:
1 G Ar.mgio-Ruiz, Third Report on St:.ue Responsibilicy, ILC ~arbook 1991, Vol IlO), 25.
:.1 /LC Ytarbook 1982, Vol l, 202 (para 16).
1206 Part V The Implementation of International Respomibility
a subsystem which is intended to exclude more or less totally the application of the general legal consequences of wrongfui acts, in particular the application of the countermeasures normally at the disposai ofan injured party.3
In the course ofits work, the ILe has equally used other criteria in addressing the issue of prohibited countermeasures, relating to the content Of nature of the naIms. Without attempting to elaborate a general theory of prohibited countermeasures, one can neverthe- less identify certain elements which appear to be crucial for determining the illegality of resart to certain measures as countermeasures in diplomatie law (Section 1); in the field of economic and political coercion (Section 2); and in the area of the environment (Section 3). This analysis complements studies made by other authors concerning the prohibition of countermeasures in the jus ad bellum, international humanitarian law and international human rights law, and within partieular conventional frameworks, whether the "WTO or the European Union.
1 Countermeasures and diplomatie law
Pursuant to article 50(2) of ARSIWA:
AState taking countermeasures is not relieved from fulfilling ics obligations: {a} Under any dispute setclement procedure applicable between it and the responsible State; (b) To respect the inviolability of diplomatie or consular agents, premises, archives and documents.
It follows that any countermeasures which do not respect the right to inviolabiliry of the person, premises, documents and archives of diplomatie and consular agents would be ilIegal under article 50. The provision must be assessed in the light of the statements of the International Court of Justice in United States Diplomatie and Consu/ar Staffin Tehran.
The Court observed that:
the rules of diplomatie law, in short, constitute a self-contained régime wruch, on the one hand, lays down the receiving State's obligations regarding the facilities, privileges and immunities ta be accorded ta diplomatie missions and, on the other, foresees their possible abuse by members of the mission and specifies the means at the disposaI of the receiving State to coumer any such abuse.
These means are, by their nature, entirelyefficacious, for unless the sending State recalls the member of the mission objected co forthwith, the prospect of the aImost immediate 10ss ofhis privileges and immunities, because of the withdrawal by the receiving State ofhis recognition as a member of the mission, will in practice compel that person, in his own interest, CO depart at once.4
Article 50 ARSIWA codifies customary internationallaw in this regard. Countermeas- ures may no more derogate from the inviolabiliry of the diplomatie mission than from that of diplomatie agents. Aceording to the Court:
.. there is no more fundamental requisite for the conduct of relations between States than the inviolabiliry of diplomatie envoys and embassies, 50 that throughout history nations ofall creeds and cultures have observed reciprocal obligations for that purpose; and ... the obligations thus assumed, notably those for assuring the personal safety of diplomacs and their freedom from prosecution, are
) B Simma, 'Sdf-contained Regimes' (1985) Neth~rlands Yearbook oflnurnational Law 111, 115-116; and see fùrrher above, B Simma & 0 Pulkowshi, Chapter 13.
4 Unit~d 5taus Diplomatie and ConsularStaffin Tehran {United StaUs of America v fran),Judgmtnt, lC]
Rp'm 1980, p 3, 40 (pa" 86).
CountermtaJures and O,her Non-Dtrogabk Obligations 1207
essendal, unqualified, and Inherent in their cepresentative charance and their diplomatie function .. the institution of diplomacy, with ifS concomitant privileges and immuniries. has withstood the tcS[ of centuries and proved co be an instrument fssenrial for effective co-operation in the inter- national communiry, and for enabling States, irrespective of rheir differing oonstitutional and social systems, to acrueve mutual understanding and ta resolve cheir differences br peaccful means.5
The inviolabiHry of a diplomatie mission in substance means the inviolability of the premises of the mission6 and of the goods. furniture, archives and documencs of the mis- 5ioo.7 The invÎolabiiity of diplomatie agents means the inviolability of theic person.8 Article
50
a1so takes into account the inviolabiJiry of consular posts and agems.9The academie litera turc supports the view that countermeasures are unlawful if taken in violation ofinternarional obligations destined [Q ensure the protection of diplomatie and consular personnel or of heads of State. According co Oppenheim:
... individuals. such as heads of state and diplomatie envoys, who enjoy the privilege of txcracer~
ricorialiry when abroad must not be (he objeet of reprisais, although mac bas indeed occurred on occasion in praccice. JO
Diplomatie agents cannat be subjected ta reprisals, whether against meir person or their possessions. by a nation which has received them in the capacity of envoys (legatt), since rhey have placed themscives and their possessions under its protection in good faith." Examples of authors who contest me existence of a rule of general imernationallaw condemning such acts are rare. 12 Sorne reason
mat
norms ofintecnationallaw cannor he subjecr tO countermeasures by vinue of meir juS" cogmscharacrer. 13 Omers believe meexplanation lies in me peculiar nature of the law of diplomatie relations, in that!his body of cules is a 'self-rontained regime'.14 This position was defended by Special Rapporteur Riphagen in his Foutth Report on the 'Content, Forms and Degrees ofinternational Responsibilicy'." According to Ripbagcn:[a]part from the exclusion of ~peeifie reprisals by a universal rule of jus cogms, and the exclusion of spcci6c reprisais br an objecti~e régime (otherwise than in C3..'ie of a breach of such objective régime), there may be cases of exclusion of specifie reprisais even where no extra-State imerests are involved,
s Ibid, 19 (paras 38-39).
6 An 22, Vienna Convention on Diplomatie Relations, 18 April 1961, 500 UNTS95, underwhich 'The receiving State is under a special ducy to take aIL appropriate steps to protect the premises of che mission
against any intrusion or damage .. .' /
1 Ibid, art 24: '(tJhe archives and documents of the mission shaH be inviolable at anr time and wherever chey ma)" be'.
a Ibid. art 29: '. , . (t)he receiving Stalc shaH unt [a diplomatie agent) wich due respect and shaH take aH appropriale steps to prevent anr attack on his pCr.ion. freedom or dignity'.
9 Seeam 31 and 41, Vienna Convention on Consular Relations, 24 April 1963. 596 UNTS261.
10 L Oppenheim. IntnnatioNlI LAw: A Treatise, vol. Il. DiJpuus, W4r J1ndNeumdity (7th edn. H Lauterpacht (cd), London, Longmans, Green and Co, 1948), Vol Il. p 140.
Il T Twiss, On 1he Rights and Dulies ofNatiom in Timt ofPtact, vol L The Law of Nations (considertd as Indtpmdtnt Political Communitits) (Oxford, London, 1984), 39; sec: also P Cahier, Le droit diplomatique colltnnporain (2nd edn, Geneva, Oroz, 1964), 2; Ch Dominicé, 'Reprisais and diplomatie law', in Recbt ais /Touss und Gtfoge, Ftstschnft for Hans Huber (Berne, Stampfli. 1981), 547.
lZ 0 Anzilotti, COTJO di diritto inumazionak (padova, CEDAM. 1955), vol III, 167. Sec, in che sattlt:
senst:, B Conforti. Diritto inurnttzionak (3rd edn. Napoli, Scit:ntihCl, 1990),360-361.
,) H Rôling, 'Aspects of the Case concerning United States Diplomats and Consular S,affin Tt:hran' (1980) Nnhn/ands ~arbook of Inttrwuionnl Law 125, 147.
l' See eg F Lattanzi, 'Sanzioni inrernazionaH', in Encicwptdi4!kl diritto (Milan, Giuffré, 1958), 544-547, OY Elagab. The Legality ofNon:forâbk Countameasures in InttnuuionalLtw (Oxford, CI3renden Press, 1988), 116ff. 15 W ruphagen. Fourth Report on State Responsibilicy,
ILe
Yrarbook 1983. Vol 11(1),3.1208 Part V 7he Implementation of International Responsibility
A typical example is the case of diplomatie immunities. Ir would sc::em, however, chat chis is a case which does not lend itself (0 generalization within the context of the inadmissibility of specifie reprisais. Indeed. the case seems rather within the scope of a deviation &om the gerreraI rules con·
cerning the legal consequences ofinrernationallywrongful acts, implicitly provided for-a! the rime the primary relationship is esrablished.16
However, in the view of Reuter:
[t]he Court had perhaps been unwise to cefet, in chat coorrection, to a 'self-contained régime', an expression which had been interpreted by sorne as meaning char, in response to the violation by a Stare of rules concerning privileges and immuoities, the injured Stare could ooly break off diplo- matie relations or declare certain persans non grata . .. in so far as more general obligacions such as humanitarian obligacions were not involved, the injured State could respond in kind to a manifest violation of the rules on privileges and immunities. For instance, in the event of the violation of a unanimouslyaecepted cule concerning the diplomatie bag, the injured State should be entitled co act in the same way as the State responsible for the violation. In sueh drcumstances, the régime of privileges and immunities did not seem to be particularly self-eontained.17
The problem is determining the threshold oflegality of countermeasures in diplomatie law, in other words, knowing from what moment and in response to what acts a Stare may adopt countermeasures, and a contrario, to derermine the nature and content of acts whieh are unaceeptable by way of eountermeasure in the field of diplomatie relations.
International practiee demonstrates that flot all forms of reprisais exercised against diplo- mats are eonsidered impermissible. Ir would be difficult to characterize as illegal measures adopted with a view to restraining the freedom of movement of diplomatie envoys.18 Rather, the category of prohibited counrermeasures targets those adopted against dip- lomatie envoys which are direeted against the physica1 person of diplomats, and which thereby breaeh the cule of personal inviolability.19 Aceording to Sicilianos:
there is undoubtedly an irreducible core of diplomarie law having a peremptory character-the inviolabiliry of the person of diplomatie agents, the inviolability of premises and archives-which is rhereby impervious to countermeasures. Conversely, there are other obligarions whieh do not appear to be binding in all cases and which could, admittedly with all precaution, form the object of proportionate countermeasures.20
In 1992, severa! members of the ILC observed that the breaking-o/F of diplomatie rela- tions was a very effective countermeasure which was often resorted to in practice, both on the bilaterallevel (cessation or suspension of diplomatie relations, non-recognition of governments, recall of ambassadors or of the diplomatie mission en bloc, declarations of persona non grata) and on the multilateralleve1.21 Theyalso emphasized that there was
no reason to prohibit reciprocal measures within the framework of diplomatie law which concerned, for instance, restrietions on the freedom of movement of diplomatie agents. Ir followed mat recourse to countermeasures in this area should not be prohibited, but rather eonsiderably Iimited.22 The ILC foUowed this path in the Articles as flnally adopted.
16 Ibid,17. 17 ILC~arbook 1984, Vol l, 264 (para 30).
18 A de Guttry, Lr rl1ppr~l1g1ie non comportanti la coercizione militarr ne! diritto int~ionale (Milan, Giulfré, 1995),282. 19 Ibid, 283.
20 L~A Sicilianos, Les riactions diccntra!isùs il l'i/liâu- Drs contrr-mesures il la ligitimrdifmu (Paris. LGD), 1990), 351. 21 Report of the ILe, 44th Session, ILC Yearbook 1992, Vol 11(2), 34.
22 Ibid.
CountermeilJUrtS and O,ha Non-Derogable Obligatiom 1209
2 Countermeasures and measures of economic and political coercion
In the Dran Articles adopced in 1995 (rhere seems ta have been no specifie provision on ecanomie and policical coercion before chis dace), the ILe incorporaced a provision providing chat an injured Stace may not rcson, by way of countermeasures. [0 'extreme economic or polilical coerdan designed (0 endanger the territorial inccgrity or political independence of the Scare which has commitced an inrernationaJly wrongfui act .. :.23
Article 50 of the Articles 3S finalLy adopted makes no mention of the illegality of countet- measures adopted by way of ecanomie and political coercian. In truth chis issue gave rise co rnuch equivocation wühin the ILC.24 Ir is ofinecresr to retrace certain elemenrs of the debace sa as ta evaluace the impact of the ILC's silence on chis matter.
In 1979 the ILC provided for the possibility for aState to resort to eeonomie and poLitical countermeasurcs,25 However, in the commemary adoproo in 1995, the ILe indicaced mat:
[a] grear variery of forms of economic or political rneasures are &equendy resorted ra and are con- sidered admissible as counrermeasures against imernationally wrongful acts. Their adrnissibility, however, is not totally exempt from restriction since extreme economic or polidcal measures may have consequences as serious as mose arising from the use of armed force.26
The rhreshold of seriousness27 required in order for an economic or policical measure
tO be judged illega1. namely that of'extreme' economic or political coercian, bears wimess
[Q a movement which tended to approximate such measures to countermeasures involv- ing the use of force. This appears clearly from the ILC's Commentaries, which themselves seem oriented in favour of a broad interpretation of the notion of use of force. According to the ILe, State practice, although oot going sa far as ta permit the conclusion that cer- tain forms of economie or political coercion are equivalent to forms of armed aggression, nonetheless reveals a distinct and very clear rren4 towards limiting the abUicy of States to [csort lO economie or political measures.28
However, the ILC Limited irs assessment of rhe illegality of economie and poLitical countermeasures by drawing on rhe principle of non-intervention. To this end it evoked a
23 Draft art 14(b), Report of the ILC, 47th Session, ILe Yearhook 1995, Vol 11(2), 66.
24 Sc<: G Arangio-Rui1., Third Reporr on State Responsibility, ILe Yearbook 193/, Vol II(l), ~ 1-32, which gives a brief account of the di/ferenr doctrinal opinions concerning the ülegality of pardcular economie and polîdcal rneasures. See also G Arangio-Rui1., Founh RepOrt on State Responsibility, ILC Y,llrbook 1392.
Vol 11(1), 28-30 whkh examines the state practice conceming che admi.s.sibiliry of economic and polilical countermcasures.
2> See the Commc:ntary ta art 30, wruch states that' ... modern internationallaw does not normally place any obstacles of principle in the way of the application of certain forms of reacrion ra an internationally wrongful act (economic reprisals, for example)'; Repon of the ILe, 31st Session, ILe Ye4rhooft 1973, Vol 11(2), 116.
26 Reponofthe ILe, 47th Session. ILC ~4rhook 1995, Volll(2), 68.
21 According ta the ILC, 'the prohibition of economic Of political coercion by way of counrermeasures contained in subparagraph (h) is based on the extreme nature of the meUlures as determined b)' the seriousness of their potential consequences in [efffiS of endangcring ''the territorial integrity or political independ(nce" of the: Srale concemed', Report of the ILC. 47lh Session, ILe Ytarbooft 1995, VollI(2), 70.
18 0 Bowett, 'Economie Coercion and Reprisais by Stares' (1972) 13 VirginiajoumaJ oflnln'n4donAi Law l, 2-3; J Seidl-Hohe:nveldern, 'The United Nations and EconomicCoercion' (1984-85) 18 &f)~ Belge de droit intenuzûonal9, 11; L Boisson de Chazoumes, us contre-mesura dam les rekttions internationtlus IconomiqueJ (Paris, Pedone, 1992), 148-156.
1210 Part V The Impfmtentation of International ReIpQnribility
certain number ofinternarional and regional instruments condemning recourse ta economic and polilical coercion which breaches the principlc of non~intervention. In this vein. the Declaration on the InadmissibUity of Intervention in the Domestic A1Iàjrs of States and [he Pro<ec<ion of [hei[ Independence and Sovereigmy adop<ed by [he UN General Assem- bly affirmed [hat:
No State may use or encourag~ the use ofeconomic, poticical or any other type of measures co coerce another Stace in order co obtain From it the subordination of the exercise ofirs sovereign righrs or co sceuee from ie advantages of any kind.29
Similarly, the Charter of the Organization of Amcric3n States prohibits States from using 'coercive measures of an economic or political character in order to force che saver- eign will of another Stare and obtain from it advamages of any kind',30 and in the same way, the Helsinki Final Act of the Conference on Security and Co-operation in Europe provides m .. ail panicipating States should:
in ail drcumstances refrain from any ocher ac[ of military, or of political, economic or ocher coercion designed ta subordinate to cheir own inrerest the exercise by anocher parcicipating Sure of the righrs inherent in its sovereignry and chus co secure advantages of any kind.31
ln the same manner. the rCl has recognized the îIlegality of economie measures in the context of
me
principle of non-intervention prindple in the Military and Paramilitary Activiti(S in and against Nicaragua case. According co the Court:... [a} Stare is not bound co continue particular trade relations longer than it sees fit co do so, in the absence of a treaty commitrnent or ocher specifie legal obligation; but where there exists such a cornmitment, of the kind implied in a (reary of friendship and commerce, such an abrupt act of terminadon of commercial intercourse as the general trade embargo of 1 May 1985 will normally constÎrute a violation of the obligation not to defeat the object and purpose of the treaty.32
Special Rapporœur Arangio-Ruiz explained tha[. unlike me general prohibition of armed COUfltermeasures in a11 circWll5tances, the prohibition on economic or political coercion concerned only 'non-armed measures with specincally reprehensible aims, such as che 'subordination of the exercise of [the rarget State's] sovereign righcs', or the effort co secure 'advantages of any kind',H The condemnation of coercive measures other rhan those consisring of the threat or use offoree therefore targets only those economic or polic- ical measures destined to cause very grave, if not catasrrophic, consequences for the targer state, Such consequences are not necessarily differem tO chose which may result from an illegal use of force. I[ is [his which h.., led certain aumors to dispute [ha< me dislinclion bet\Veen the two prohibitions---of recourse ro che use of force, and of recourse rD extrerne eeonomie or political coercion-is valid in practice.
29 GA Res 2131 (XX); see also the Declaration on Principles of Imernacionall.aw Concerning Friendly Relacions and Co-operation Among State.'\.(GA Res 262S{XXV»), which prodaims '[n]o State may use or encourage the use of economic, policical or any other type of measures tO coera: another State in arder ta obtain from it the subordination of the exercise of its sovereign fights and ta secure from it advantages of any kind'.
30 Art 20, Charter of the Organization of Americrn Sr::ates, 27 February 1967, 119 UNTS 3.
'1
Prindple Vl, Final Act of the Conference on Securiry and Co-operation in Europe, signed at Helsinki, 1 August 1975. 14 !LM 1292 ..
n MiliraT)'llnd PaTamilirary Acti/);ua in and Against NiCllTagttll (Nicaragua v United States of America), M"in, ICj &ports 1986, p 14, 138 (para 276).
" G Arangio-Ruiz, Founh Repon on Sene Responsibility, ILe ~Ilrbook 1992, Volll(l), 29.
Coumemwnum and Oth" Norz-Derogable Obligatiom 1211 Is the absence of any reference [0 the unJawfuJness of certain economk and policical counrermeasures in article
50
indicative of an intention to assimilate the prohibition of recourse to measures of economic and political coercion ta that of countermeasures involv- ing the threat or use offorce? ln this regard, it may be argued that this follows from the faet that during the discussions leading to the adoption of the firS! reading draft in 1996, the members of the ILC enthusiastically adopted article 50(b) which addressed measutes of economie or political coercion.34 However, Îe should also he recalled mac in Miiitary and Paramilitary Activities in Nicaragua. the Court used the generic concept of force to refer to the economie measures talten by the US againS! Nicaragua." It may equally he asked whether the absence of any reference to the prohibition of 5uch measures might not indicate a desire to exclude extcerne measures of economic and political coercion From the field of prohibited countermeasures. On balance, the better view appears te be that eco- nomie and political countermeasures may be illegaJ if they are aimed at coercing a Stare COsubordinate the exercise of ÎtS sovereign rights or its independence.36
3 Countermeasures and international protection of the environment
Article 50 of ARSIWA makes no mention of the possible illega/iry of eounrermeasures by reason of potential damage co the environment. The Gabéikovo-Nagymaros Project case has, however, shed light on sorne aspects of che ques[Ïon which deserve menrion. During the course of the proceedings before the Court, Slovakia argued that Hungary's decision ra suspend. then to abandon, {he construction of the works had made it impossible for Crechoslovakia 10 carry out the construction work as originaJly envisagcd by the 1977 Treaty, and that the latter thus was entirJed tO resort co a solution as dose as possible ta the original design.37 Slovakia equaJly maintained that Czechoslovakia had been under an obligation to mitigate the damage resulting from Hungary's iIIegal aets. Ir argued that a Stace which is confronte'ct
by
the ilIegaJ act of anorner Stace is bound to minimize itS losses, and thus reduce the damages daimable from the responsible Stare." The damages daimed by Slovakia were nonetheless considerable, taking into account the investments made and the extra damage, economic as much as ecological, which would have resulted from leaving the works at Dunakiliti/Gabéikoyo unfinished and from the non-operation of rhe system; on this basis it was argued that Czechoslovakia had not only a tight, but was even under an obliga[Ïon, CO put Variant Cinto action. Although Slovakia had asserted that Czechoslovakia's conducr had been lawful, it mainrained, as a secondary argument, chat. even were the Court co find omerwise, the putting into action ofVariam C could be justified as a countermeasure.Was such a <countermeasure' lawful? ln anrnrering mat question, the Court enumerated the conditions ro he satis6ed in relation to the reCOUIse to countermeasures, induding the condition according [Q which the 'etfects of a countermeasure must be commensurate with the in jury sufferoo, caking accounr of the rights in question'. 39 It concluded mat the
Ho SeeILC~arbookI996,VoJI.13S.
35 Mi/itary and Parami/itary Activities in and.Agaimt NiCAragua (Nic.:lrdpA v United States
of
AmeriUl), M"iu, ICj &pcrn 1986, P 14, 107-110.)6 L Boisson de Chazournes, 'Economie Countermeasures in an Interdependent WorJd' (1995) ASfL l'roc«dingt 340-341 .
;'7 Gabèikovo-Nagym4ros Projett (Hungary/Slcvakia), ICf Reports 1997, p 7, 51 (para 67).
;" Ibid, 51-52 (paras 68-69). 39 Ibid, 56 (para 85).
1212 Part V The Implnnentation of International Responsibility
counrermeasure was unlawful
by
reason of the facrthat
ie deprived Hungary of irs cight [0a &ir and reasonable share of the narural resources of the Danube. The Court thus n.vourea an economic approach. wühour atcaching much importance to an ecological approach to proportionalicy.40 Ir was only in an inddental and ramer dm,d manner chat che COUrt considered chat the unilaœcal diversion of the Danube could have continuing effecrson the ecology of the riparian region of Szigetkiiz. 41 The ;udicial body adopted a c1assic approach to assessment of the impact of councermeasures, one which is cenainly important, bue nevertheless is somewhat Iimited, given the way in which international environmentallaw is currently developing and taking root in the internationallegal system.
Could ie nevertheless be argued chat countermeasures disrucbing the ecological and eco- sysremic balance afa given areaare prohibited?
Can
countermeasures be permitted to have negative repercussions on the environment? In othec words, above and beyond the issue of proportionality or potential reversibility, could it not be envisaged that there are measures prone to damage the environment whïch cannat be taken in any circumstances?Having found Siovakia's countermeasure co be iIIegal by ,eason ofits disproportionaliry.
the Court went on to hoJd that it did not nced tO cule on further conditions on which the legaliry of countermeasures depend~. namely chat rhe latter musr have the aim of encourag- iog the responsible stare (0 carry out its obligations under ilHernarional law. and that the measure must consequencly be 'reversîble'.42 However, the issue of 'reversibilityJ could have provided the Court with an opporruoîry ro hold that Countermeasures having an impact 00 the environmenr ace unlawful. Afrer ail, rhe particular and substantial charac- terÎsric of much environmemal damage is Î[s irreversibiHry.
The restrictive list as set out in article 50 ARSIWA does not take ioto accoum aIl of the complexity of the system of countermeasures. Scientitlc uncertainty in environmental matters makes it necessary ta rethink the criteria of validiry or legality of countermeasures according ra different paradigms.43 One is led ta the condusion chat the uncerrainry which might surround the risks and effects of a countermeasure on the environment couId be a factor in assessing the inadmissibility of a countermeasure. In this context the precau- tionary principJe could act as a framework norrn which would oblige all States ta refrain from adapting in any significant way countermeasures which would threaten the environ- ment and human health."
40 See also the Separate Opinion of Judge Bedjaoui: 'In any case, Variant C is not a countenneasure whose iIIegalicy can bc excusoo. It is not proportionate. bccausc from the outsee je deprivcs Hungaryof the waters of the Danube. a sharcd rcsource. ;and of ail right to invotvement in a common invcstment provided far by the treacy of 1977', ibid, 134 (para 52).
" Ibid, 56 (p= 85). " Ibid. 56 (p'" 87).
<43 ln his separate apinion, Judge Weeramantry explained that 'The protection of the environrnent is Iike\.\lÎse a vital part af contemporary human righrs doctrine, for it is a tin(qlla non for numuous human rights such as the right ta health and the fight to life itself. Ir is scarcdy necessary 10 daborate on this, as damage to the environment can impair and undermine ail the human rights spoken ofin me Universal Declaration and other human rights instruments. White, t~erefore, aU peoples have (he right ta initiate devdopment projccrs and enjoy their beneflrs, there is likewise a ducy tO ensure chat chose projecrs do not signiflcancly damage che environment': ibid, 91-92.
44 See Principle 1 S, 1992 Rio Oeclaradon on Environment and Devdapment, whereby '[iln order to prorect the environ ment, the precaucionary approach shall he widely applied br States according ta their capabilities. Where there are threals of serious or irreversibJe damage, lack of full scientiflc certaimy shall nor he used as a reason for postponing cost-elfeaive measures tO prevent environmental degradation', rcproducoo in L Boisson de Chazournes, R Desgagné. M Mbcngue, & C Romano. Protection internarionau th l'mvironnnncnt (Paris, Pedone, 2005), doc 1.1.
CounttrmltlJUyeI and Otha Non-Dlrogabk Obligations 1213 In Ihis context, the notion of'collective/muhilareral treaties' appears to
he
anather rele- vant criterian for comprehenrung the applicability of countermeasures in the environmental field. This category of treaties highlighrs the nodon of 'collective interests', 45 The tradi- tional approach, bearing the imprint of bilateralism, is ill-adapted to rhe subject of the environment because it places countermeasures in a c10sed relationaI pracedure.limited to the injured/responsible State relacionship.46 The prmoction of the environment demands the incorporation of an open relational process, mat is to say. one which takes inta account in the raklng of countermeasures the damage which could affect States othee than the Scare breaching its international obligation due to me relationship between rhe different componenrs of the environment in areas under the jurisdiction of a Stare (the notion of ecosysrem . thus calls iota question again the comparrmenralized view of the regime of countermeasures, in favour of a global vision), but aIso, and above ait because of the necessicy and obligation to preserve the environmem as a corn mon good or as a common interesr of mankind. As early as his 1970 report on State Responsibiliry, Special Rappor- teur Ago argued that:whilst in all cases an internationally wrongful ace ereares a new relationship between the gullry stare and che injurt:d state ... new problems present themselves once one considers chat the new tegal relationship may extend not only to che guilry stace but co othec states and ta international organizations; chus, a stace committing an internationally wrongful acr can assume responsibilities cov.'3rds all srates.47
Alrhough Aga's analysis is interesting. it is nevertheless limited; it does nat cake into account the fact mat the injured Stare, in raking countermeasures, can cause damage to othec States not guilry of the original wrongful act, and rhus engage its responsibiliry towards chese States. This concern is ever-presenr in relation to me caregory of muJtilatera! treaties.48
lhus the assessmenc of the legality of a response tO a violation ofinternadonallaw byway of countermeasures cannot . .be limited to the relarionship between the States responsible for, or injured by, the violation: Ir must refIect the global dimension of the relationship berween the injured State, the State commiuing the violation and mher States which could beinjured by a countermeasure. For instance, in the Nuckar Tests cases, New Zealand sought to draw a distinction berween France's violation of erga omneI obligations (prohibition of nuclear experiments causing radioactive fanour, prohibition of unjustified contamination resulting from arriflciaJ radioactiviry of the tertestrial, maritime or aerial environmenr) and France's violacion of New Zealand's own rights (violation of territorial inregricy, harm to the health ofics population, infringement ofirs navigational freedom, etc).49
~) ln chis regard, $(':c K Sachariew, 'State responsibiliry for mulrilaleral treaty violations: identifying the
"injured State" and its Jegalsr:uus' (1988) 35 Ncthcrln.ruIs Imtrnational Law Rroùw 273. According to Sachariew, 'multilateral t~aTies play an increasingly important role in the structure and process of pr~nt-day intemationallaw. They have proved to be a flexible, multi.purpose instrument for 6nding a common denominator to the intere.stS of a growing number of States and co·ordinating the international effort for dealing with global problems fadng mankind. Thcrc is a gro,,:ing awareness that the tr:ilditional bilateralisT approach is inadequate for the solution of problems such as the maintenance ofinrcrnational peace and securiq.', ensuring world-wide respecr for hwnan rights, democra(Ïzing international economic relations, preserving me human environment, ctc:
46 L Boisson de Chazournes, 'Thc State ofStatc Rcsponsibility' (2002) 96 ASIL Procudings, 171-172.
~7 R Ago, ~cond Report on Stnc R~ponsibility, ILe Ytarbook-1970, VoIU, 177, 193.
~8 Scc L~A Sicilianos, above Chapter 80.
49 NUc/l!ar Tms (Nl!wZealandv Francr), Intaim Protcaion, JC} &pons 1973, p 135, 139 (para 23).
1214 Part V The Impkmentation of International Respomibility
Although it does not prohibit countermeasures completely, the environmentallaw regime imposes additional conditions co the procedural framework governing theic exercise. For example, obligations to notify and consuIt other States beforehand, or indeed to obtain authorization from a collective body, Of to undenake stlldies of environmental impact may be applicable, although it may be envisaged that sorne adjustments may have to be made to the procedure. These remarks cantribule to the broadening of the scope of conditions for validity of countermeasures, and thus to the restriction of recourse to them.50
Further reading
D Anzilotti, Corso di dîritto internazionale (Padova, CEDAM, 1955)
L Boisson de Chazournes, Les contre-mesures dans /es "!arions internationales économiques (paris, Pedone, 1992)
P Cahier, Le droit diplomatique contemporain (2nd edn, Geneva, Droz, 1964) B Conforti, Diritto internazionale (3rd edn, Naples, Scientifica, 1990)
OY Elagab, The Legality of non-forcible counttrmeasures in International Law (Oxford, Clarendon Press, 1988)
A de Guttry, L~ rappresaglie non comportanti la coercizione militare nel diritto internazionale (Milan, Giuffré, 1995)
L Oppenheim, International Law: A Tr~atis~, vol IL Disputes, ~r and Neutrality (7th edn, H Lauterpacht (ed), London, Longmans, Green and Co, 1948)
L-A Sicilianos, Les réactions dicentralisées à tillidte- Des contre-mesures à la légitime défense (Paris, LGD],1990)
T T wiss, On The Rights and Duties of Nations in Tim~ of P~ace, vol. L Th~ Law of Nations (considered as Indeptndent Political Communities) (London, OUP, 1984)
L Boisson de Chawurnes, 'Economie Countermeasures in an Interdependent WorId' (I995) 89 ASIL Procudings 337
L Boisson de Chazournes, 'La mise en œuvre du droit international dans le domaine de la protection de l'environnement: Enjeux et défis' (1995) 99 RGDIP 37
D Bowett, 'Economie Coereion and Reprisals by States' (1972) 13 Virginia Journal of International Law 1
Ch Dominicé, 'Reprisals and diplomatie law' in Recht ais Prozess und Ge.foge, Festschrift for Hans Huber (Berne, S,ampHi, 1981), 547.
F Lattanzi, 'Sanzioni internazionale', in Endclop~dia dei diritto (Milan, Giuffré, 1958),536 H Roling, 'Aspects of the case concerning United States diplomats and consular staff in Tehran'
(1980) N"herlands Yea,book of International Law 125
K Sachariew, 'State responsibility for multilateral treaty violations: IdentifYing the "injured State"
and its legal status' (1988) Netherlands Int~ational Law Review 273
1 Seidl-Hohenveldern, 'The Uniced Nations and Economie Coercion' (1984-1985) 18 Revue
Belg~ de droit international 9
G White, 'Legal Consequences ofWrongful Acts in International Economic Law' (1985) 32 NYIL 137
50 See L Boisson de Chawurnes, 'La mise en oeuvre du droit internationaJ dans le domaine de la protection de l'environnement: Enjeux et défis' (1995) 99 RGDIP37-76.
