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Are Counter-measures Subject to Prior Recourse to Dispute Settlement Procedures?
Christian Tomuschat1
Full text available: PDF format *
It is a challenging task for the International Law Commission (ILC) to frame an adequate regime of unilateral responses to unlawful State conduct. Traditionally, the sovereign State has been free to defend its rights as it saw fit. Self-help was a widely accepted concept of international law before the emergence of the new world order brought about by the UN Charter. Under Article 2(4) of the UN Charter, since 1945 a general ban on the use of force applies, which has additionally acquired the quality of customary international law.2 Thus, no State can enforce a claim by resorting to forcible means, however legitimate and well-founded that claim may be. In dealing with counter-measures, the ILC is called upon to shape rules for other retaliatory actions which, although not reaching the level of force, would constitute a breach of an international obligation if they were not being made in response to an initial breach of international law by the protagonizing State. It is obvious that justifying an act considered per se unlawful by reference to another injustice can easily lead to a chain reaction causing damage far greater than the advantages a counter-measure is intended to secure. Thus, discussing the pros and cons of any suggested regime is not only a technical exercise, but rather a legislative project intimately tied to the particularities of the present-day international order.
I. General Considerations
A. Codification and Progressive Development of International Law
The ILC has a twofold mandate; namely to both codify and progressively develop international law. The current legal position concerning counter-measures, in the past termed `reprisals', still reflects to a large extent the international law of yesterday, where the sovereign State was the main actor in international relations. A State that resorts to counter-measures takes justice into its own hands. In the slow process of building statehood in Central and Western Europe from the Middle Ages to the eighteenth century, the abolition of the right of feud was one of the major challenges and, eventually, achievements of monarchic rulers. The rule of law was guaranteed, at least in principle, only after judicial systems had been established that were exclusively competent for adjudicating legal claims. Likewise, the international community would make a great step forward if it succeeded in bringing unilateral responses by States to encroachments upon their rights under stricter discipline. In other words, there is every reason for the ILC not to confine its efforts to reproducing the law at it stands, but to search for better, forward-looking solutions that are fully adapted to an interdependent world that has much to lose by allowing anarchy to rule bilateral relationships.
B. Counter-measures - A Tool of Powerful and Rich States?
During the discussions in the ILC, time and again concern was voiced that counter-measures were essentially an instrument for powerful States to enforce their interests, with small and weak States never able to use counter-measures to protect themselves. One can easily agree with the proposition that the availability of a legal weapon which solely serves the interests of one group of States - namely the industrialized States of the North - raises serious issues under the principle of equality of States. Yet no speaker made a substantiated effort to prove that indeed such fears were well founded. When haunting spectres of the past are recalled, it is often overlooked that the most serious cause for concern has disappeared. Use of force is unreservedly forbidden under international law, except for purposes of self-defence against armed attack. Consequently, permissible counter-measures do not reach a degree of intensity that puts the existence of a State in jeopardy. Normally, a conflict which commences with an initial act of an allegedly wrong-doing State, and which prompts a response to that act, termed a counter-measure, remains within the area of clashes and frictions that can be settled by diplomatic means. The fourth report of the Special Rapporteur refers to many instances where assets were frozen by way of retaliatory action.3 Indeed, temporary sequestration of foreign property seems to be the most currently used device in case of a major conflict. Unpleasant as such occurrences may be, they do not place new States in a position of inferiority. On the contrary, one may note that foreign investment is mostly located in developing countries, while these countries have few, if any assets in industrialized States.
In any event, in order to understand correctly the actual importance of counter-measures as a fact of life, it would be extremely helpful to undertake an empirical study of the issue. In particular, the trade sector might furnish useful examples. Although the Special Rapporteur made considerable efforts to review the available data, he focused mainly - and understandably - on the most prominent cases. However, some important fields of international life have been totally left aside, in particular the law of armed conflict, the operation of which could provide many useful and even indispensable insights.
C. An Across-the-Board Regime
Perhaps the greatest difficulty the ILC has to face is the necessity to elaborate rules that are suitable for any kind of counter-measure in any conceivable situation. No field of international law will be exempted ratione materiae from the future Draft Articles. Classical rules governing specific inter-State relationships in such areas as title to territory or sea boundaries will be covered in the same way as modern branches of the law, for instance human rights law or law of the environment. Moreover, counter-measures may arise out of trivial disputes, but they can also serve as defences against attacks on a nation's legally protected vital interests. With respect to the origins of international responsibility, the great variety of the possible factual configurations hardly matters. With regard to counter-measures, however, one cannot afford to ignore the substantive background. In particular, the overall expenditure for a procedure prescribed as a condition for the taking of counter-measures should certainly not be out of proportion with the importance of the subject matter in issue. Procedures that appear fully legitimate when a counter-measure affects essential legal positions may be regarded as excessively burdensome when only minor interests are at stake. The ILC cannot evade this conundrum. One of the basic premises of the ILC's work which was originally suggested by Roberto Ago (and later approved by the ILC as a whole) was that it should establish a uniform regime for all kinds of internationally wrongful acts, subject only to some possible modifications for international crimes.
It would be unwise, however, to totally disregard international crimes in drawing up the requisite regime of counter-measures. In the first place, the boundary between international crimes and `ordinary' international delicts is very fluid. Second, one can easily identify quite a number of internationally wrongful acts which, although not being mentioned in Article 19 of Part I of the Draft Articles on State responsibility, nonetheless constitute extremely serious breaches of international law. Consequently, it would be shortsighted to conclude that the ILC is presently engaged in drawing up nothing else but rules for `minor' international delicts. Hence, there is no escaping the necessity to devise a regime that provides suitable legal guidance for counter-measures in response to both grave and less disturbing breaches of international law.
D. The Time Factor
Additionally, the time factor must be taken into consideration. While in a trade dispute an aggrieved party often escapes serious harm if any retaliatory action is postponed until a third party determination has come about, in armed conflict, for instance, counter-measures will normally be effective only if taken immediately. To be sure, counter-measures have been ruled out to a large extent by modern developments. Additional Protocol I to the Geneva Conventions, in particular, contains a considerable number of prohibitions on reprisals (Articles 20, 51, (6) etc.). But there is still enough room for counter-measures that do not affect the core substance of the legal regime for the protection of victims of warfare. Many rules on the treatment of prisoners of war set a relatively high standard,4 and it would not be unlawful to mete out actual treatment (slightly) below such standards as a response to a violation of its duties by a hostile power.5 In such situations, no lengthy proceedings would be appropriate. Restoration of compliance with the law can only be obtained through a swift answer.
E. Fear of Counter-measures - An Incentive for Compliance with the Law
Quite rightly, in the debates of the ILC most speakers highlighted the dangers of unbridled resort to counter-measures. However, counter-measures also have a positive aspect. They are among the few enforcement elements available in the international legal order. According to Hans Kelsen, notwithstanding the large absence of executive and judicial machinery in the international arena, international law may be correctly classified as `law' precisely because it authorizes a victim of an unlawful act to take justice into its own hands.6 In fact, if nations in their mutual relationships had to rely solely or essentially on the bona fides of their counterparts, the effectiveness of international law would be seriously affected. Fear of being exposed to counter-measures may act as a powerful inducement to abide by commitments undertaken by States. With respect to the law of armed conflict, in particular, many authors have argued that its artful edifice of rules and principles is totally based on reciprocity.7 If the parties to an armed conflict knew that they could violate the rules which restrain their actions without consequence, a general break-down of the minimum standards of humanity would be expected. Fear of swift counter-measures can have a law supporting effect. An aggrieved party might be tempted to breach the law at an early stage of a dispute if they were obliged to go through a procedural quagmire before being entitled to respond to violations of the applicable rules on warfare. The only restraining device would then be purely factual considerations of military convenience, not legal arguments. Considerations of humanity, on the other hand, militate against making people the victims of such an approach. Here, the ambivalence of counter-measures reveals itself with its almost unsolvable harshness. Faced with the choice, the international community of today has opted for a far-reaching, though not total ban of counter-measures. However, as far as arms control and inspection of military sites is concerned, counter-measures have retained their full potential.
F. A Balanced Regime
Rules on permissible use of counter-measures must be well balanced. It would be a serious mistake to favour a wrong-doing State. In this connection, one has to acknowledge that any State can violate its obligations, be it a weak and poor or a rich and powerful State. On the other hand, the basic difficulty is that at the time when an injured State considers taking counter-measures, the legal position may still be unclear. Its government may be fully convinced that the act it is complaining of involves a breach of an international obligation. However, at that stage its view is no more than a partisan allegation that may or may not be true, unless the prevailing circumstances permit no serious doubt. Given this situation, the Special Rapporteur's wish to make the taking of counter-measures dependent on prior assessment by a third party has fully legitimate underpinnings.
G. Counter-measures Disguised as Measures of Retorsion
If the regime to be constructed should prove to be unfair to the victim State, that State would certainly feel tempted to simply refrain from terming the retaliatory action a counter-measure, in an attempt to evade requirements which it finds too time-consuming and burdensome. For example, in the economic sector, there is often no clear dividing line between unfriendly acts, which a State can put into operation in the exercise of its sovereignty, and measures which, viewed in isolation, would have to be characterized as unlawful. Only if fairness is ensured can one hope to channel the underlying conflict into a procedural framework facilitating speedy and effective resolution.
H. Trend Towards Formalized Dispute Settlement Procedures
The ILC must be clearly aware of the growing trend towards establishing formalized dispute settlement procedures. In many international treaties provision is made for unilateral resort by one of the parties to a dispute to a third-party body. Examples are provided by the Vienna Convention on the Law of Treaties and the UN Law of the Sea Convention (Part XV). Yet, the lesson to be drawn from the relevant provisions of the instruments is ambivalent. Neither of them makes dispute settlement by a third party generally compulsory; rather, certain areas of particular concern to the participating States have been identified where such formalized procedures seem to be both necessary and suitable to promote law and justice. An important step was recently taken within the framework of the GATT Uruguay Round.8 Dispute settlement through panels whose reports set forth `recommendations and rulings' of a binding nature has now become an institutionalized feature of the new GATT regime. Counter-measures in the form of suspension of concessions or other obligations may be taken only after the exhaustion of a carefully drafted step-by-step procedure, and only if the State infringing the relevant rules fails to bring its conduct into compliance with the panel's recommendations and rulings. However, here again, one is faced with a special sector of international relations, having a limited scope, where the rights and interests in issue can be clearly identified ex ante. Additionally, the framers of the new GATT panel system have been extremely diligent in setting a strict timetable for every stage of the complex procedure. Reliance on the GATT dispute settlement mechanism is therefore not tantamount to an adventure with a totally unpredictable outcome.
Generally, international practice reveals a close relationship between substance and procedure. International dispute settlement mechanisms have always been introduced in the light of given substantive issues judged as both requiring, and being suitable for, intervention by a third party. Nowhere does one find examples of comprehensive submission of international disputes to settlement, without any exception ratione materiae. Even in the European Communities, where the role of the Court of Justice is such a powerful one, matters pertaining specifically to the overarching structure of the European Union have been removed from the jurisdiction of the Court.
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1 Professor of Public Law, Director of the Institute of International
Law, University of Bonn; Member of theInternational Law Commission.
2 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, ICJ Reports (1986) 14,
para. 188 (hereafter referred to as the Nicaragua case).
3 UN Doc. A/CN.4/444 (1992), paras. 37, 38.
4 Take, for instance, Article 74(1) of the Convention Relative to the
Treatment of Prisoners of War (Convention III), according to which `all relief
shipments for prisoners of war shall be exempt from import customs and other
dues'.
5 Article 13(3) of Convention III applies only to reprisals `sur les
personnes', see J. de Preux, La Convention de Genève relative au
traitement des prisonniers de guerre (1958) 151; see also A. Rosas, The
Legal Status of Prisoners of War (1976) 445-448.
6 Reine Rechtslehre (2nd ed., 1960) 321.
7 See, for instance, G. Schwarzenberger, International Law as
Applied by International Courts and Tribunals, Vol. I (1968) 452-453; J.
Stone, Legal Controls of International Conflict (2nd ed., 1959)
354.
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