682 PDF

Erga Omnes and
Countermeasures
Countermeasures by Non-Injured States in Response to Mass Atrocities
Kandidatnummer: 682
Leveringsfrist: 25-4-2014
Antall ord: 17911

Table of Contents
1 INTRODUCTION .............................................................................................................. 1
2 OBLIGATIONS ERGA OMNES ..................................................................................... 4
2.1 From Individual to Community Interests in International Law ........................................ 4

2.1.1 Historical Overview ............................................................................................. 4
2.1.2 Understanding community Interests .................................................................... 6
2.1.3 The Draft Articles on the Responsibility of States and community interests ...... 7
2.2 The Concept of Erga Omnes ............................................................................................. 9
2.2.1 Introduction .......................................................................................................... 9
2.2.2 Criteria for the identification of obligations erga omnes ................................... 10
2.3 Instantiations of obligations erga omnes ......................................................................... 13
2.3.1 Genocide ............................................................................................................ 13
2.3.2 War Crimes and crimes against humanity ......................................................... 15
3 NON-INJURED STATES AND INDIVIDUAL COUNTERMEASURES – THE ILC

........................................................................................................................................ 18
3.1 Introduction ..................................................................................................................... 18

3.2 The ILC distinction between injured and non-injured States .......................................... 18
3.3 State Practice and Opinio Juris ....................................................................................... 21
4 COUNTERMEASURES .................................................................................................. 24
4.1 Introduction ..................................................................................................................... 24

4.2 The General Content of the Law on Countermeasures ................................................... 24
4.2.1 Defining Countermeasures ................................................................................. 24
4.2.2 Conditions and procedural limitations ............................................................... 26
4.3 Limits to Countermeasures.............................................................................................. 27
4.3.1 Absolute limits ................................................................................................... 27
4.3.2 Proportionality ................................................................................................... 28
4.3.3 Lex Specialis and Self-Contained Regimes ....................................................... 31
4.4 Countermeasures Against States Other Than the Principally Responsible One(s) ......... 32
4.5 Conclusion ....................................................................................................................... 35
i
5 THE RESPONSIBILITY TO PROTECT AND INDIVIDUAL
COUNTERMEASURES BY NON-INJURED STATES.......................................... 37
5.1 Introduction ..................................................................................................................... 37

5.2 The Responsibility to Protect Introduced ........................................................................ 37
5.3 The Security Council and individual measures ............................................................... 41
5.3.1 The Security Council and its influence on States’ competence to take individual
measures ........................................................................................................... 41
5.3.2 The residual and complementary role of individual measures .......................... 42
5.4 A More Prominent General Assembly? .......................................................................... 45
5.5 Conclusion ....................................................................................................................... 46
6 CONCLUSION ................................................................................................................. 47
REFERENCES ....................................................................................................................... 49
ii
ABBREVIATIONS
ARSIWA DRAFT ARTICLES ON THE RESPONSIBILITY OF STATES FOR

INTERNATIONALLY WRONGFUL ACTS
ARSIWAC COMMENTARY TO THE DRAFT ARTICLES ON THE RESPON-
SIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL
ACTS
DRC DEMOCRATIC REPUBLIC OF THE CONGO
ECTHR EUROPEAN COURT OF HUMAN RIGHTS
GA GENERAL ASSEMBLY OF THE UNITED NATIONS
ICJ INTERNATIONAL COURT OF JUSTICE
ICISS INTERNATIONAL COMMISSION ON INTERVENTION AND
STATE RESPONSIBILITY
ICRC INTERNATIONAL COMMISSION OF THE RED CROSS
ILA INTERNATIONAL LAW ASSOCIATION
SC SECURITY COUNCIL OF THE UNITED NATIONS
SG SECRETARY-GENERAL OF THE UNITED NATIONS
UK THE UNITED KINGDOM
UN THE UNITED NATIONS
US THE UNITED STATES OF AMERICA
WSOD WORLD SUMMIT OUTCOME DOCUMENT
iii
1 Introduction
The aim of this thesis is to clarify the status in international law of countermeasures by non-
injured States in the enforcement of norms protecting fundamental community values. For
this purpose it will address two sub-questions: First, whether and to what extent countermeas-
ures by non-injured States as a response to violations of obligations erga omnes are tolerated
in contemporary international law; second, their relationship with collective enforcement of
obligations erga omnes through the United Nations (UN).
The subject covers a potentially wide array of obligations. For the purpose of analytical preci-
sion, the thesis will narrow the discussion to the obligations designed to prevent mass atroci-
ties, namely the prohibitions on genocide, war crimes and crimes against humanity.
“[T]he concept of toleration [is] something which breaks from the binary understanding of
permission/prohibition and which allows for a range of non-prohibited options. That an act
might be ‘tolerated’ would not necessarily mean that it is ‘legal’, but rather that it is ‘not ille-
gal’”.1 The degrees of non-prohibition range from “’tolerated’ to ‘permissible’ to ‘desira-
ble’”.2
This notion of toleration is not something that is outside the framework of the legal system as
considerations of what the law should be, but rather it seeks to grasp “the great shades of nu-
ance that permeate international law”3 in its present state. In this sense, it addresses the legit-
imacy of certain acts that operate in the grey area of normativity of international law.
Employing this conception, the starting position in the evaluation of tolerable enforcement
measures must be the character, protected values and importance within the international legal
system of the norm that is to be enforced. For this purpose, Chapter II will seek to clarify the
concept of obligations erga omnes. First, these obligations will be systemically contextualized
as part of the historical shift from voluntarism to communitarianism in international law. In
1
Kosovo Advisory Opinion (Declaration of Judge Simma) pp. 480-481 para. 9
2
Ibid. p. 480 para. 8
3
1
the next sections, the general concept of obligations erga omnes and the erga omnes character
of the prohibitions on genocide, crimes against humanity and war crimes are discussed more
in detail.
Further, the thesis will address three main recurring arguments against countermeasures in the
general interest:
The first argument is concerned with whether the main actors in the legal system are prepared
to allow for such means in the protection of fundamental norms. The claim is one of non-
fulfilment of the conditions for the emergence of customary international law and is largely a
product of the final position on the matter taken by the International Law Commission (ILC)
in its work with the Draft Articles on the Responsibility of States for Internationally Wrongful
Acts (ARSIWA). Chapter 3 will critically examine the ILC’s final position. The first section
will examine the development from 1996 to 2001 in how the ILC conceived individual en-
forcement of obligations erga omnes. In the second section, the ILC’s final position is con-
trasted with alternative assessments of State practice and opinio juris.
To understand the means of enforcement in question, the object, purpose and limits of coun-
termeasures are presented in Chapter 4. This necessitates an evaluation of the second argu-
ment, which is concerned with the risks of undesirable outcomes involved in tolerating self-
assertive enforcement. It relates specifically to the abuse of power, either in the shape of the
misuse of countermeasures for nefarious purposes or as a reference to a risk of disproportion-
ate measures. To further explore the limits of toleration, the last section is devoted to analys-
ing the scope of States against which countermeasures might be taken and the legitimacy def-
icits connected with allowing individual enforcement against States aiding or assisting in the
commission of the wrongful act or maintenance of the situation thereby created.
The shift to communitarianism in international law involved the creation of institutions for the
protection of collective interests. The third argument operates from a public law ideal of in-
ternational law and its basic assumption is that communitarian norms should be enforced by
institutions representing the international community. Because countermeasures are a product
of necessity in a decentralized legal system, Chapter 5 will address their relationship with
centralized enforcement of obligations erga omnes through the UN. In the first sections, the
2
Responsibility to Protect (R2P) and its implementation is examined. The next section deals
with the influence of the Security Council (SC) on States’ competence to take separate indi-
vidual measures and the complementary potential of individual measures to the R2P frame-
work. Lastly, a possible role for the General Assembly (GA) in coordinating individual coun-
termeasures is examined.
3
2 Obligations Erga Omnes
2.1 From Individual to Community Interests in International Law
2.1.1 Historical Overview

The Treaty of Utrecht from 1648 established a common European framework for peace by
limiting exercise of power through the principle of sovereign equality. Apart from the abso-
lute sovereignty of other States, the only binding force limiting States’ freedom was the con-
ditional auto-limitation of sovereignty through the establishment of binding relations with
other sovereign entities through quasi-contractual procedures.4 According to liberal theories
prevailing at the time, the binding nature of treaties was essentially justified by reference to
States’ self-interest.5 Entrenched in the notion of sovereign equality was the non-hierarchical
ordering of values.6 The logical consequence of the domestic contractual analogy was the
binary and symmetric structure of international legal rights and obligations. Leaving aside
classical scholars’ conceptual problem of harmonizing liberal freedom with international
community order, the interests of self-serving States remained at the centre. In this respect,
humanitarian law serves as a useful example: until the late 19th century, the ‘humanization’ of
war was justified not by fundamental considerations of humanity, but mainly the self-interest
of States in securing reciprocal treatment.7
As is evident in the Lotus case,8 consensualism reigned supreme in the 19th and well into the
20th century through the ideological purview of liberal positivism. However, the increase of
diplomatic, economic and other relations9 triggered increasing trends of communitarianism,
hereunder the legal acknowledgement of important common values:10 The preservation of
4
Ludwig Klüber’s distinction between ’absolute’ and ’conditional’ rights and obligations was shared by Vattel,
Martens and other scholars in the classical period (15th-19th century), see Koskenniemi (2005) pp. 106-156
5
Ibid. pp. 91-92, 114-115
6
Ibid. p. 94
7
Turns (2010) pp. 815-816
8
France v. Turkey p. 18, where the Court stated, inter alia, that because rules of international law emanate from
the free will of States, “restrictions upon the independence of States cannot […] be presumed”.
9
Neff (2010) pp. 12-13, 20
10
Villalpando (2010) pp 392-394; Simma (1994), p. 235
4
peace within Europe became a collective, albeit political, interest, slave trade was abolished
and humanitarian law gained its humanitarian justification.11 In the inter-war period, increased
attention to human rights and the regulation of the use of force and its institutional enforce-
ment through the League of Nations provide further examples.12 In an increasingly intercon-
nected world, the promotion of certain public goods and values demanded concerted ap-
proaches; a development that took full speed after the Second World War, with increased use
of multilateral treaties and coordinating efforts through the creation of a multitude of interna-
tional organizations; most importantly, the United Nations.13 The shift from bilateralism for
certain treaty and customary obligations (erga omnes partes and erga omnes) and the hierar-
chical superiority of certain customary norms (jus cogens), marked another hallmark; first, in
that it acknowledged a community interest in individual States’ compliance with certain
norms; second, in that that the morally grounded nature of erga omnes and jus cogens now
evidenced a hierarchical order of values;14 third, in that the community interest in compliance
with jus cogens norms override any possible individual interest in departing from it.15 Alt-
hough Simma’s ideal of a “re-conception [of international law] as a system of public law,
proceeding from the axiom of social responsibility and accountability of its subjects”16 may
not yet have materialized, community norms present a bold step in that direction.
Granting these and other developments, bilateralism still remains the “basis on which the new
developments take place”.17 Furthermore, while all jus cogens and erga omnes norms protect
community interests, it is not necessary that all community interests take the shape of norms
erga omnes or jus cogens.18 Before moving on to the ILC’s incorporation of community inter-
est norms into the ARSIWA, what is meant by ‘community interests’ should first be clarified.
11
Neff (2010), p. 13, 20; Turns (2010) pp. 815-816; e.g. the Geneva Convention of 1906 and 1899 Hague Decla-
rations I and II
12
Neff (2010) pp. 22-23
13
Ibid. pp. 24-25
14
e.g. de Wet (2006) pp. 57-63; Simma (1994), p. 234
15
VCLT art. 53 and 64
16
Simma (1994), p. 234
17
Ibid. p. 230
18
See below, section 2.2.2.
5
2.1.2 Understanding community Interests
Defining the concept of ‘international community’ is not an easy task. Under the traditional
conception, one would regard States as its sole components. In the other extreme, one could
take it to refer to the entirety of humanity. Restricting the concept to the actors with legal per-
sonality under international law (itself a somewhat contested subject) would not necessarily
bring further clarity to the matter.19 In any event, even though the concrete interests “go far
beyond the interests held by States as such”20 it is clear that States remain at centre stage in
the formation of international law. Leaving aside the question defining the ‘community’, iden-
tifying the community interests is far less cumbersome. As was made clear by the ICJ, “the
existence of an ‘interest’ does not of itself entail that this interest is specifically juridical in
character”.21 For our purposes, only interests that are “given juridical expression [and are]
clothed in legal form”22 through the creation of primary norms of international law are rele-
vant.23 Clearly they include, inter alia, the maintenance of “international peace and securi-
ty”;24 respect for “human rights and […] fundamental freedoms”;25 environmental protec-
tion;26 the right to self-determination;27 the protection of peoples28 and the prevention and
prosecution of international crimes.29 In more abstract terms, community interests can be un-
derstood as representing shared values by the international community, the protection of
which demand cooperation and collective commitment, and the frustration of which are con-
sidered to be an issue that affects the community as a whole.
19
See Simma (1994) p. 246-249 for an overview of the different positions
20
Ibid. p. 244
21
Ethopia/Liberia v. South Africa p. 34 para. 50
22
23
de Hoogh (1996) p. 17
24
UNC art. 1(1), reaffirmed, inter alia, in GA resolutions 5/377 and 37/10; WSOD paras. 69-72
25
See e.g. UNC art. 1(3); UDHR, preamble; ICCPR, preamble; ICESCR, peamble; WSOD para. 120
26
Hungary v. Slovakia p. 118 (Separate Opinion Judge Weeramantry); Rio Declaration, preamble; UNFCCC,
preamble; CBD preamble; WSOD paras. 48-56
27
Wall Advisory Opinion p. 199 para. 156
28
WSOD paras. 138-139
29
ICC Statute, preamble. Moreover, the preamble of the ICC Statute links the prosecution of international crimes
to the maintenance of international peace and security. Clearly, it also serves the purpose of protecting fun-
damental human rights.
6
2.1.3 The Draft Articles on the Responsibility of States and community
interests
Moving on to observe in what way community interest norms influenced the ILC’s ARSIWA,
focus will be on the provisions established outside the framework tailored for traditional con-
tractual relations. As will be seen, the evolution and development of primary community in-
terest norms in international law have also permuted the field of secondary norms in the field
of State responsibility. ARSIWA Art. 54 and countermeasures by non-injured States are treat-
ed in Chapters 3-4.
2.1.3.1 As an absolute limit to circumstances precluding wrongfulness

Arts. 26 and 50(1) of ARSIWA restrict the scope of acts for which wrongfulness is precluded
in the preceding provisions. In other words, breaches of the obligations encompassed in these
two provisions are always wrongful. While art. 26 restricts itself to ‘peremptory norms’, a
reference to jus cogens as codified in VCLT arts. 53 and 64, art. 50(1) narrows the scope of
lawful countermeasures further by including community interest norms not necessarily of a
jus cogens nature.30
2.1.3.2 Additional obligations for serious breaches of peremptory norms

Chapter III of Part 2 in the ARSIWA is dedicated to serious breaches of obligations under
peremptory norms. Although the earlier proposal by special rapporteur Ago of distinguishing
between international delicts and crimes was discarded, the ILC nevertheless considered that
certain consequences followed from the fundamental values that peremptory norms are de-
signed to protect.31 The provisions in art. 41 are not exhaustive, and the ILC acknowledged
the possibility of consequences not contained in the draft articles being lawful as well.32 Fur-
ther, State practice supports that only serious – i.e. gross or systematic – breaches activate the
additional duties enshrined in art. 41.33 States have a duty to cooperate – by lawful means – to
30
This is clear by the inclusion of “other” in art. 50(1)d the ILC acknowledged the jus cogens of certain norms
contained in art. 50(1)b-c, but did not restrict art. 50(1)b-c to these norms; see ARSIWAC p. 132 para. 9.
31
ARSIWAC para. 7 to Chapter 3 of Part II and para. 3 to art. 40.
32
ARSIWA art. 41(3); ARSIWAC paras. 13-14 to art. 41
33
ARSWA art. 40; ARSIWAC para. 7 to art. 40
7
bring the serious breach to an end. This is not limited to cooperation through international
institutions.34 The duty not to recognize the situation as lawful includes both formal and de
facto recognition.35 In addition, States are prohibited from rendering assistance in maintaining
an unlawful situation.36
2.1.3.3 Invocation of responsibility and claims

The ILC distinguishes between injured and non-injured States for the purposes of invocation
of responsibility. Subject to the provisions in arts. 43-45, injured States are generally entitled
to invoke the responsibility of another State. Non-injured States however, are not generally
entitled to invoke such responsibility, unless the rule breached is either valid erga omnes37 or
erga omnes partes.38 In the latter instance, non-injured States are entitled to claim cessation of
the wrongful act and reparation in the interest of the injured State or beneficiaries.39 Although
the claim of reparation was part of the progressive development of international law, the ILC
justified its inclusion with reference to the protection of the “community or collective inter-
ests at stake”.40 The rights enshrined in art. 48 for non-injured States need not be spearhead-
ed by an IO.41 The logical consequence would be that, although a State might lose its possibil-
ity of invoking responsibility under arts. 43-45,42 this has no consequence for other non-
injured States also entitled to bring claims under art. 48.
34
ARSIWA art. 41(1); ARSIWAC para. 2 to art. 41. Cooperation outside the auspices of IO’s however, was
included as part of the progressive development of international law.
35
ARSIWA art. 41(2); ARSIWAC para. 5 to art. 41
36
ARSIWA art. 41(2)
37
ARSIWA art. 48(1)b; ARSIWAC para. 8 to art. 48
38
ARSIWA art. 48(1)a; ARSIWAC para. 6 to art. 48
39
ARSIWA art. 48(2).
40
ARSIWAC para. 12 to art. 48
41
42
ARSIWA art. 48(3)
8
2.2 The Concept of Erga Omnes
2.2.1 Introduction
This section is devoted to explore more thoroughly the notion of erga omnes obligations. As a
starting point, the famous obiter delivered by the ICJ in the Barcelona Traction case is cited:
33. […] In particular, an essential distinction should be drawn between

the obligations of a State towards the international community as a whole,
and those arising vis-à-vis another State in the field of diplomatic protec-
tion. By their very nature the former are the concern of all States. In view
of the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.
34. Such obligations derive, for example, in contemporary international

law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some
of the corresponding rights of protection have entered into the body of
general international law (Reservations to the Convention on the Preven-
tion and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23); others are conferred by international instruments of
a universal or quasi-universal character.43
As noted by Tams, the ICJ has not always employed a uniform usage of the concept of erga
omnes. In the Namibia case44 and the Nuclear Weapons advisory opinion45, erga omnes was
used to widen the scope of States bound by a GA resolution and a non-proliferation treaty.
The same holds true for the references to the erga omnes concept before the Barcelona Trac-
tion case. In the 1996 Genocide case,46 erga omnes was taken to widen the scope of attribu-
tion under the Genocide Convention. In the Nuclear Tests47 and Nicaragua (jurisdiction)48
43
Belgium v. Spain p 33, paras. 33-34
44
South West Africa Advisory Opinion p. 56 para. 126
45
Nuclear Weapons Advisory Opinion pp. 273-274 para. 23
46
Bosnia v. Serbia 1996 p. 616 para. 31
47
Australia v. France, p. 269 para. 51; New Zealand v. France, p. 474 para. 53
48
Nicaragua v. US 1984 p. 416 para. 55
9
cases, erga omnes was used descriptively to interpret the scope of the unilateral declaration
made by France and the US withdrawal of the optional clause declaration respectively.49 In
the paragraphs cited from the Barcelona Traction case, the Court used erga omnes as indicat-
ing the universal scope of States with legal interest in compliance with a primary obligation.
As implied by the Court in the cited paragraphs in the Barcelona Traction case and the ILC in
its distinction between injured and non-injured States, a right of enforcement of international
obligations presupposes legal interest in protection. Therefore, it is the understanding em-
ployed in the last sense that will be examined in this section.
2.2.2 Criteria for the identification of obligations erga omnes

To understand the obligations erga omnes, the starting point is the dictum by the ICJ in the
Barcelona Traction case. In the paragraphs cited above, the Court considered certain obliga-
tions to be universally opposable by virtue of their ‘nature’, i.e. the intrinsic value they pro-
tect, and contrasted them with obligations arising vis-à-vis another State in the field of diplo-
matic protection. In addition, the Court established a qualitative threshold in that the ‘rights
involved’ must be of a certain ‘importance’. That they are ‘the concern of all States’, inter-
preted as a descriptive statement, suggests they are considered by the international community
to be ‘important’ and that concerns of protection transcend an ordinary interest in compliance
with international law. The questions that then remain to be answered relate to the nature and
threshold of importance indicated by the Court.
Despite the last sentence in the last paragraph cited in section 2.2.1, the source of obligations
erga omnes are in customary international law and must as such be contrasted with what is
commonly referred to as obligations erga omnes partes, which are classically exemplified by
human rights and environmental treaties.50 The two categories are alike in that they express a
collective interest in the protection of values and that they cannot be conceptualized within
the framework of reciprocity. Furthermore, obligations erga omnes partes may serve as evi-
dence of the existence of obligations erga omnes.51 The difference between the two lies not
49
Tams (2005) pp. 106-115; similarly, Simma (1994) p. 299.
50
The two are distinguished in ARSIWA art. 48(1)(a) and (b)
51
Tams (2005) p. 128
10
necessarily in substance, but in that the source of the obligation determines its scope and ef-
fects. Therefore, although a universal or quasi-universal treaty could yield the same reality,
three factors distinguish them from obligations erga omnes; new States or States contracting
out of the treaty would limit the scope of opposability;52 the contracting parties might confer
opposability for obligations that are not opposable strictly in virtue of “the importance of the
rights involved”;53 the effects of breaches will be determined by the treaty itself.54
In identifying what sort of obligations could meet the qualitative threshold of obligations erga
omnes, commentators have used a variety of methods based on the examples given by the
Court in its paragraph 34, where it listed the “outlawing of acts of aggression, and of geno-
cide, […] the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination”.55 Later, the ICJ included “the rights of
peoples to self-determination”.56
Ragazzi summarizes his descriptive examination of the examples in the obiter of the Barcelo-
na Traction case as follows: they are (1) narrowly defined obligations, (2) prohibitions, (3)
obligations in the strict sense, (4) jus cogens obligations, and they (5) reflect basic goods or
moral values.57 The persuasiveness of the finding, and especially points (1)-(2) is convincing-
ly criticized by Tams by its failure to encompass the positive right of self-determination of
peoples,58 and proposes instead comparative observations from jus cogens. His point is that
there is evidence that, as Simma points out, jus cogens and erga omnes are “two sides of one
and the same coin”,59 observing the same primary obligation from different perspectives. The
primary function of jus cogens is in the law of treaties – a treaty conflicting with an existing
jus cogens norm or which conflicts with a jus cogens norm emerging after the conclusion of
52
VCLT art. 34
53
Belgium v. Spain para. 33; Sicilianos (2002) p. 1136
54
Tams (2005) pp. 126-127
55
Belgium v. Spain para. 34
56
Portugal v. Australia p. 102 para. 29; Wall Advisory Opinion p. 199 para. 156
57
Ragazzi 2000 pp. 132-134.
58
Tams (2005) pp. 128-129 footnote 56
59
Simma (1994) p. 300
11
the treaty, is void.60 The peremptory norms relevant are those that prohibit conduct that pre-
sent, in the words of the ILC, a “threat […] to the survival of States and their peoples and the
most basic human values”61 – what Tams coins ‘substantive jus cogens’.62 Ragazzi presents
similar views in that “universal opposability is [to be found] in the recognition of the univer-
sal validity of the basic moral values that these obligations are meant to protect”.63
Undeniably, the partial identity between substantive jus cogens and obligations erga omnes
seems persuasive; all the obligations erga omnes mentioned in the Barcelona Traction and
East Timor cases are also widely recognized to be jus cogens.64 If the “elementary considera-
tions of humanity”,65 which clearly imply that the nature of the value is not governed by a
principle of reciprocity, is considered a concern for the “international community as a
whole”,66 then the vague criteria established by the ICJ in the Barcelona Traction case would
seem to be met. Differences however, should not be overlooked; the Court did not set up a
test-approach similar to VCLT art. 53, and consequently there is no formal approach to con-
firm the status erga omnes of an obligation. Also, although a substantive jus cogens norm
necessarily entails erga omnes status, the opposite is not necessarily the case67 leading com-
mentators to speculate in possible dispositive candidates.68 This would have consequence,
inter alia, for the applicability of the rule of the persistent objector and the validity of con-
flicting treaties. The result would presumably be that the dispositive obligation erga omnes
60
VCLT arts. 53 and 64.
61
62
E.g. Tams (2005) p. 147
63
Ragazzi (2000) p. 183. This apparent moral utopianism is modified later in the same paragraph; ”No State can
elude the binding force of these obligations, not only because States recognize that it must be so […]”
64
cf. e.g. Nicaragua v. US 1986 pp. 100-101 para. 190 (use of force); Reservations Advisory Opinion p. 23
(genocide); DRC v. Rwanda pp. 31-32 para. 64 (genocide); DALTC para. 3 to draft art. 50 of the VCLT (use
of force, genocide, slave trade); ARSIWAC paras. 4-5 to draft art. 40 (acts of aggression, genocide, slave
trade, self-determination, racial-discrimination, torture, humanitarian law)
65
UK v. Albania p. 22
66
VCLT art. 53
67
Tams (2005) pp. 152-153; Simma (1994) p. 300;
68
Ragazzi (2000) explores areas such as human rights and development and environmental protection.
12
could be “owed to a group of States”, thus blurring even the theoretical lines between erga
omnes and erga omnes partes.69
In sum, obligations erga omnes and jus cogens norms are to a large degree two sides of the
same coin; if a fundamental norm protecting basic human values cannot be derogated from,
then the interest in ensuring compliance with the norm lies with the international community
as a whole. Although formal criteria for the identification of obligations erga omnes cannot be
given, the intrinsic moral ‘nature’ which underlies the norm is a necessary component. In the
clear examples given by the ICJ, the protected values are all essential for the protection of
human life, dignity and integrity. It could therefore be argued that the threshold of importance
would easier be met if a norm were designed to protect these values. The notion that obliga-
tions erga omnes are restricted to prohibitions cannot be maintained as a formal criterion.
2.3 Instantiations of obligations erga omnes

In this section, the focus shall be to clarify the content of certain primary obligations and their
status erga omnes. The obligations selected are those enumerated in the 2005 World Summit
outcome document70 (WSOD), namely the content of the prohibitions against genocide, war
crimes and crimes against humanity. ‘Ethnic cleansing’, because it is void of legal signifi-
cance and partially encompassed within the three former categories,71 will not be treated.
2.3.1 Genocide
Under the 1948 Genocide Convention, State parties recognize genocide “whether committed
in time of peace or […] war, is a crime under international law which they undertake to pre-
vent and to punish”.72 For our purposes, only the duty to prevent will be examined. The duty
69
ARSIWA art. 48(1)(a)
70
WSOD para. 138
71
Amnéus (2013) p. 24; Strauss (2011) pp. 49-50
72
Genocide Convention art. 1
13
to prevent incorporates a negative obligation to refrain from the acts enumerated in art. III73
and a positive duty to prevent acts of genocide.74
The negative duty implies a duty to ensure that organs of the State, individuals exercising
authority of State or being directed or under the overall control of the State75 or that otherwise
might be attributed to it do not act in contravention of art. III of the Convention. The positive
duty implies a duty to, by all means reasonably available to the State, prevent genocide76
within and outside of its territory.77 The extent of acts incumbent on the State under the posi-
tive duty is not fixed, but must be determined in concreto based on the State’s “capacity to
influence effectively the action of persons likely to commit, or already committing, geno-
cide”.78 The obligation for the State to act is effective from the time the State “learns of, or
should normally have learned of, the existence of a serious risk that genocide will be commit-
ted”.79 The breach by omission of the positive duty to prevent and consequent responsibility
incurs only when acts of genocide actually are carried out.80
What then is the legal status of these obligations? In its 1951 advisory opinion, the ICJ held
that, “the principles underlying the Convention are […] binding on States, even without con-
ventional obligation”,81 thus suggesting the principles in question at least pertain to the corpus
of customary international law. As already mentioned, the negative obligation is of perempto-
ry status owed erga omnes. In the cited paragraph of the Barcelona Traction case, the Court’s
example given was the “outlawing […] of genocide”, presumably referring only to the nega-
tive obligation. In a more recent case the Court stated that the “rights and obligations en-
73
These are ”(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit gen-
ocide; (d) Attempt to commit genocide; (e) Complicity in genocide.”
74
Bosnia v. Serbia 2007 p. 222-223 para. 432
75
See ARSIWA Part I Chapter II
76
Bosnia v Serbia 2007 p. 221 para. 430.
77
78
Bosnia v. Serbia 2007 p. 221, para. 430
79
80
Ibid. p. 222 para 431
81
Reservations Advisory Opinion p. 23
14
shrined by the Convention are rights and obligations erga omnes”,82 thus seemingly also re-
ferring to the positive obligation to prevent. The erga omnes character of the positive obliga-
tion to prevent would not harmonize well with Ragazzi’s conception of obligations erga om-
nes as only narrowly defined prohibitions.83 However, as noted by Tams, the ICJ awkwardly
used the erga omnes concept to widen the scope of attribution, a characteristic typical of jus
cogens.84 Others have argued that the Court should instead have made reference to jus co-
gens.85 Granting a jus cogens status also to the positive duty to prevent would necessarily im-
ply that is opposable erga omnes.86 Even if this were not the case, the Court showed aware-
ness of the special importance also to the positive obligation to prevent. The protected value
underlying the prohibition on genocide – “the right of existence of entire human groups, a
denial which shocks the conscience of mankind and results in great losses to humanity, and
which is contrary to moral law”87 – seems therefore strongly to suggest that both compliance
with the negative and the positive obligations are the concern of the international community
as a whole – that they are opposable erga omnes.
2.3.2 War Crimes and crimes against humanity

As expressed by the ICTY Appeals Chamber in the Tadic case,88 an act, to constitute a war
crime, must be a serious violation of a rule of international humanitarian law protecting im-
portant values, involving grave consequences for the victim and which entails individual
criminal responsibility for the perpetrator.89 This holds true both for international and internal
armed conflict.90
82
83
See above section 2.2.3
84
Tams (2005) pp. 110-112
85
Ibid, p. 110 references in footnote 61
86
For a similar view, see Amnéus (2013) p. 17
87
88
The Prosecutor v. Tadic
89
Ibid. para. 94; Cassese (2008), p. 81; Similarly, the ICC Statute art. 8, restricts war crimes to
“grave”(art.8(2)(a)) or “serious” (art.8(2)(b)) breaches of humanitarian law.
90
Cassese (2008) p. 81
15
Crimes against humanity are “widespread or systematic attacks directed against any civilian
population”.91 The prohibition applies both in times of peace and war.92 The classes of of-
fences93 are intimately connected with the protection of fundamental human rights and digni-
ty.
In the Nuclear Weapons and the Wall advisory opinions, the court stated that some rules of
international humanitarian law “are so fundamental to the respect of the human person and
‘elementary considerations of humanity’” that they constitute “intransgressible principles of
international customary law”,94 suggesting they are peremptory norms.95 The jus cogens and
erga omnes status of the prohibition against crimes against humanity and at least the more
egregious instances of war crimes constituting grave breaches96 are therefore logically en-
tailed in that their nature is to protect the fundamental rules of international human rights and
humanitarian law.97 What then of the duties on the part of States?
Within the framework of the 1949 Geneva conventions,98 common art. 1 imposes a duty on
States to “respect and ensure respect” the conventions “in all circumstances”. The status of
common arts. 1 and the applicability of common arts. 3 for internal conflicts were confirmed
in the Nicaragua case to be representations of customary international law.99 The duty to “re-
spect” implies that States or any entities attributable to them are prohibited from breaching
international humanitarian law. To “ensure respect” implies a wide range of positive obliga-
tions, including the duty to ensure that humanitarian law is complied with within the jurisdic-
tion of the State.100 This clearly applies in respect to war crimes. As to crimes against humani-
91
ICC Statute art. 7(1); Statute of the Special Court for Sierra Leone art. 2.
92
Cassese (2008) p. 99
93
ICC Statute art. 7; Cassese (2008) pp. 109-114
94
Nuclear Weapons Advisory Opinion p. 257, para. 79; Wall Advisory Opinion p. 199 paras. 155 and 157
95
96
See Geneva I art. 50; Geneva II art. 51; Geneva III art. 130; Geneva IV art. 147; AP1 arts. 11 and 85; ICC
Statute art. 8(2)(a)
97
This position seems generally accepted; Bellamy (2011) p. 91-92; Kadelbach (2006) p. 39; Strauss (2011) p.
49
98
Geneva Conventions (I)-(IV)
99
Nicaragua v. US 1986 p. 114, para. 220
100
Bellamy (2011) p. 94; Amnéus (2013) pp. 20-21
16
ty under general international law, somewhat equivalent obligations can be derived from the
principle of effectiveness in the field of human rights and the corresponding duty of due dili-
gence to prevent violations of human rights by non-State actors.101 The question then to be
answered is whether there also exists a positive extraterritorial duty to ensure respect.
The 2005 ICRC study on customary international humanitarian law concludes that the duty to
ensure respect entails a positive extraterritorial obligation to prevent.102 Others are more cau-
tious.103 Although a definitive answer to the question cannot be given, a general feature of jus
cogens norms is that they impose greater burdens on States to ensure compliance. This is evi-
dent, inter alia, from the duties outlined by art. 41 in ARSIWA as affirmed by the ICJ.104 Alt-
hough the ICJ in the Application of the Genocide Convention case reserved the effects on the
duty to prevent to the Genocide Convention,105 the Court considered that the “nature of the
acts to be prevented”106 generally influence the content of a duty to prevent. The judgment, in
light of universal policy developments to protect populations from mass atrocities and the
fundamental nature of the crimes encompassed in R2P, could be interpreted as an indicator of
a nascent international extraterritorial obligation to prevent war crimes and crimes against
humanity.107 The similarity and importance of the values protected by these two obligations
and the close analogy to the justification for the prohibition on genocide support the argument
that the extraterritorial duty should be applied also to serious war crimes and crimes against
humanity.
101
Rosenberg (2011) p. 168-169
102
ICRC Rule 144; Similarly, Brollowski (2012) p. 103 derives a comparable duty from the Geneva Conven-
tions common art. I; Amnéus (2013) p. 31
103
e.g. Rosenberg (2011) p. 192 and Chhabra (2012) p. 57
104
Wall Advisory Opinion p. 200, para. 159.
105
Bosnia v. Serbia 2007 pp. 220-221 para. 429
106
107
Rosenberg (2011) p. 192
17
3 Non-injured States and Individual
Countermeasures – the ILC
3.1 Introduction
State A invades State B to annex part of its territory. To ease the forcible transfer of people
from the territory in question, State A massacres part of the inhabiting civilian population
causing fear and terror. As is clear from the preceding chapter, State A is clearly in violation
of community interest norms; the prohibition on acts of aggression and crimes against human-
ity. From the perspective of State B however, the situation can be understood within tradition-
al bilateralism.108 The same is true of State C, whose affected nationals were working and
living in State B’s territory. But what of State E, who is now burdened by a massive influx of
refugees?
Depending on how the boundaries between ‘injured’ and ‘non-injured’ are drawn, the scope
of States with full rights under the law of State responsibility may vary greatly. In this chap-
ter, the first section will compare the distinction in the draft articles by the ILC from 1996 to
2001 and their consequences for the scope of States entitled to take countermeasures. In the
second section, the ILC final position will be contrasted with alternative conceptions on
whether States tolerate enforcement by way of countermeasures in the general interest.
3.2 The ILC distinction between injured and non-injured States

The notions of injury and legal interest are interconnected, however, they are not interchange-
able.109 While both injured and non-injured States might have a legal interest in cessation and
reparation110, the status has consequence for the scope of measures available as a result of the
breach.
108
Cf. ARSIWA art. 42(b)(i)
109
See art. 48; ARSIWAC para. 2 to Chapter I of Part III; That injury does not affect legal interest in compli-
ance, is evident from Spain v. Belgium para. 34
110
ARSIWA arts. 43 and 48; ARSIWAC para.1 to art. 54
18
Under the draft articles adopted on first reading in 1996, ”’injured State’ means, if the interna-
tionally wrongful act constitutes an international crime, all other States”.111 International
crimes were serious breaches112 of obligations ”essential for the protection of fundamental
interests of the international community”.113 These types of breaches are now encompassed
within ARSIWA art. 40. Thus, in 1996 the understanding of ‘injury’ in cases of international
crimes was a purely legal one, abstracted from the causal effects of the breach. The conse-
quence was that, in case of an international crime, the international community as a whole
was entitled to resort to countermeasures.114
By the year 2000, the ILC had moved away from the notion of international crimes, and in-
stead replaced the notion with that of “serious breaches of essential obligations to the interna-
tional community”.115 Despite additional changes narrowing the definition of the injured State
to those States “specially affected” by the breach of communitarian norms,116 non-injured
States were still not precluded from taking countermeasures for serious breaches of obliga-
tions erga omnes provided that the responses were coordinated.117
The condition of “specially affected” in art. 42(b)(i) in the final 2001 draft makes clear that it
restricts the scope of injury with reference to the causal effects of the breach. For breaches of
obligations erga omnes, all States are injured in the moral sense that they “shock the con-
science of mankind”.118 The intention of the ILC however, was to distinguish the category of
‘specially affected’ from the generality of States.119 The example given – of pollution of the
high seas with only specially affected coastal States experiencing the effects pollution consid-
ered ‘injured’ – and the reference to art. 60(2)(b) of the VCLT indicate that the condition is an
111
ARSIWA 1996 art. 40(3)
112
See ARSIWA 1996 art. 19(3)
113
ARSIWA 1996 art. 19(2)
114
ARSIWA 1996 art. 47(1);
115
Simma (2001) pp. 195-196
116
Ibid. p. 198
117
Ibid. pp. 204-205
118
119
19
analogy to the reciprocal framework outlined in ARSIWA art. 42(a) and consequently that the
threshold is high.120 Because obligations erga omnes often protect extra-State values, the
normal scenario will include few or no injured States, e.g. where the effects of the breach are
confined within the territory of the wrongdoer and to its own population.
To the extent that injury in the 2001 draft is a condition right to resort to countermeasures121 it
constitutes a cautious step back towards bilateralism in that the notion of ‘specially affected’
preconditions prejudice to the interests of States themselves, contrary to the universal values
protected by the primary obligations. Because the subject of countermeasures by non-injured
States was left out entirely,122 the question then to be answered is what enforcement measures
are envisaged for non-injured States.
Overall and as expected, the Draft Articles seem to prefer collective enforcement of commu-
nitarian norms.123 Apart from mentioning existing institutional mechanisms, the ILC specified
neither what collective nor individual enforcement means are available for non-injured
States.124 As to individual enforcement for non-injured States under the general provision in
art. 54 the most prominent example of a ‘lawful measure’ is retorsion. Ironically, because the
ILC’s distinction between injured and non-injured is irrelevant for non-formal claims and
diplomatic unfriendliness,125 art. 54 would seem redundant to make this point.126
In sum, the final 2001 ARSIWA seems to be a step back in the enforcement of fundamental
norms in comparison with the ILC’s 1996 draft. In addition ARSIWA leaves open a great deal
of questions regarding alternative enforcement measures of communitarian norms. As a
120
121
ARSIWA art. 49
122
ARSIWAC para. 8 to Chapter II of Part III
123
e.g. ARSIWA arts. 41(1) and art. 59
124
ARSIWA arts. 41(1) and 54; ARSIWAC para. 3 to art. 40
125
126
ARSIWAC para. 3 to Chapter 2 of Part III defines retorsion as “’unfriendly conduct which is not inconsistent
with any international obligation […] even though it may be a response to an internationally wrongful act”,
thus indicating that they essentially are within the discretion of States
20
commentator put it, the reference to “legal” and “lawful” means in arts. 41(1) and 54 are “of
an ambivalence worthy of the Pythian oracle”.127
3.3 State Practice and Opinio Juris

The last section revealed that the ILC veered from what seemed to be a steady course of ac-
knowledging countermeasures by non-injured States for serious breaches of fundamental
norms. This warrants a critical examination of the reasons given by the ILC for the exclusion
in the final 2001 draft.
First, the ILC considered State practice relating to countermeasures to be “scanty”,128 “sparse
and involving a limited number of States”.129
Three factors are essential in the assessment on whether the conduct of States is sufficient for
the formation of customary international law: The virtual uniformity, extensiveness and repre-
sentativeness of the practice.130 As to uniformity, minor departures from practice are not nec-
essarily detrimental. The requirement is both that the individual practice of a State is con-
sistent131 and that there are no substantial discrepancies in the collective practice of States.132
As to ‘extensiveness’ and ‘representativeness’ requirements, although no precise threshold

can be set, practice must at least include those States that are specially affected.133 However,
in respect of countermeasures by States that are not ‘specially affected’, this requirement does
not fit. In addition, the formation of primary and secondary rules should be distinguished;
reactions to breaches of international law will depend on a high variety of factors, including
that only States with legal relationships with the wrongdoer can take countermeasures.134
127
Sicilianos (2002) p. 1142
128
Crawford (2002) p. 884
129
130
Germany v. Denmark/Netherlands p. 44 para. 74; ILA (2000) Statement 12(i) on p. 20
131
ILA (2000) Statement 13 pp. 21-22
132
ILA (2000) pp. 22-23
133
Germany v. Denmark/Netherlands p. 44 para 74; ILA (2000) Statement 14 pp. 23-25
134
Alland (2002) p. 1239 for a similar view
21
Various commentators135 consider the many instances of countermeasures taken by non-
injured States to constitute a settled practice. In response to serious violations of peremptory
norms, the practice is consistent136 and stretches from at least the 1970’s.137 The practice is
not restricted regionally, nor limited to a few States:138 From the 1970’s to the 1990’s, the
G77 and socialist countries’ supported liberation movements in contravention of the rule of
non-interference in the international affairs of States. Prior to the SC resolution in 1990, Ja-
pan, Australia, EC Member States, the US and Czechoslovakia imposed economic sanctions
on Iraq. In 1996 trade boycotts were taken by Kenya, Rwanda, Uganda and Tanzania against
Burundi in violation of WTO law, in response to inter-ethnic terror and coup d’état resulting
in a humanitarian catastrophe.139
As to opinio juris, subjective beliefs and consent of States play their main role to compensate
for lacking or ambiguous practice or to prevent a certain practice from developing into cus-
tomary law.140 In other words, opposition can have the effect of blocking the emergence of
customary international law.
The separate article on countermeasures in the general interest was discarded during the ILC’s
work in 2000, because of strong opposition by some States.141 However, as Tams has shown,
in virtually all the cases where countermeasures were taken, they were justified by violations
of fundamental norms.142 In these cases States other than the target State did not voice opposi-
tion to the legal basis.143 With the exception of three States, all States were positive to the rule
135
Alland (2002) p. 1239; Sicillianos (2002) p. 1143; Tams (2005) p. 231
136
Tams (2005) pp. 230, 234-235
137
The US Uganda Embargo Act in 1978 in contravention of GATT 1947 in response to Idi Amin’s reign of
terror, see ibid. p. 210
138
Ibid. pp. 235-236.
139
See Ibid. pp. 212, 219 and 221
140
ILA (2000) Statements 16-18 pp. 32-40; Tams 2005 p. 238
141
Crawford (2002) p. 884
142
Tams (2005) p. 239
143
Ibid. pp. 236-237
22
on countermeasures by non-injured States in the 1996 draft.144 There was some opposition to
art. 54 in the 2000 draft.145 However, the vast majority of States did either did not oppose or
were positive to the proposal.146
In sum, the ILC and prominent scholars have reached diametrically opposed conclusions
based largely on the same set of facts. To say the least, the factual basis for the legality of
countermeasures by non-injured States in response to serious breaches of peremptory norms
does not exclude its potential status as customary international law. As to toleration, the con-
sistency and time lapse of practice, the diversity of States taking part in it and the opinions of
States strongly suggest that countermeasures by non-injured States in response to serious
breaches of peremptory norms are not prohibited under international law.
144
The opposing States were, Japan, France and the Czech Republic (Ibid. p. 244). As mentioned, Japan had
already taken part in the practice. Ironically, the same year France imposed a flight ban of Yugoslavian air-
lines in breach of its obligations, see Ibid. p. 223.
145
Ibid. p. 246
146
Ibid. pp. 247, 249
23
4 Countermeasures
4.1 Introduction
Countermeasures are a form of private justice and who find their “raison d’être in the failure
of institutions; they intersect with and affect the responsibility that they may serve, but are not
an emanation of it”.147 Although their exculpatory character is confined within the law on
responsibility,148 their coercive character is wider and relates to decentralized enforcement of
compliance with obligations arising out of breaches of international law.
This chapter will address two subjects: The first two sections provide a concise examination
of the content and limits of countermeasures. Emphasis will be placed on the principle of pro-
portionality in order to tackle the second argument listed in the introduction. The second sec-
tion will examine legal arguments for extending the scope of States targeted by countermeas-
ures to include States aiding or assisting in the breach of norms protecting fundamental com-
munity interests.
As a response to mass atrocities, countermeasures and other ways in which the international
community may respond must be viewed from the perspective of the duty to prevent and the
positive obligation to ensure respect (treated in Chapter 2). However, States’ “capacity to in-
fluence effectively”149 the commission of mass atrocities through countermeasures will vary
depending on the legal relationship between them and the target State, and hence also the de-
gree that one could speak of a duty to take countermeasures.
4.2 The General Content of the Law on Countermeasures
4.2.1 Defining Countermeasures
In the Naulilaa arbitration, the tribunal spelled out the general rules of the now outdated insti-
tution of reprisals some of which remains relevant for our purposes. Reprisals were acts of
147
Alland (2002) p. 1226
148
ARSIWA art. 22
149
24
self-justice by one State in response to a prior act in contravention of international law by
another State. It had the effect of temporarily suspending the observation of a particular rule
of international law in the relationship between the two disputing States.150 In the Air Service
Agreement arbitration, the tribunal affirmed that countermeasures are “contrary to internation-
al law but justified by a violation of international law allegedly committed by the State
against which they are directed”,151 now also expressed in ARSIWA art. 49(2). Stated suc-
cinctly, if State A violates an obligation owed to State B, State B is entitled to suspend an
obligation owed to State A. This excludes countermeasures impairing the rights of third-
States. Furthermore, because countermeasures are acts of self-justice, they are per definition
unilateral and their taking is fully within the discretion of the State. Lastly, the State taking
the countermeasures bears the risk that the claim of wrongful conduct by the target State is
consistent with the facts.
Countermeasures must be taken in order “to induce that State to comply with its obliga-
tions”.152 The ‘obligations’ referred to are those of cessation and reparation.153 Inherent in
their instrumental aim is the condition that they may only be taken in response to a wrongful
act.154 It may be argued that the ‘suspension’ of international obligations and the instrumental-
ity of countermeasures imply that the measures imposed must be temporary. This was an-
swered in the affirmative by the ICJ,155 but is stated conditionally in ARSIWA art. 49(3). As
the ILC example of suspension of the duty to notify makes clear, the condition is not abso-
lute.156 The distinction between punitive measures and countermeasures and the final effects
of countermeasures is addressed in detail below (section 4.3.2.)
150
Portugal v. Germany p. 1026
151
US v. France para. 84 p. 444
152
ARSIWA art. 49(1); Hungary v. Slovakia pp. 56-57 para. 87; similarly in Portugal v. Germany p. 1026,
where function of reprisals were a means to return to legality or secure reparation
153
See ARSIWA arts. 43(2) and 48(2)
154
Hungary v. Slovakia p. 55 para. 83; Portugal v. Germany p. 1026; ARSIWAC art. 49(1)
155
Hungary v. Slovakia pp. 56-57 para. 87
156
25
Up and until the general outlawing of the threat or use of force in the UN Charter157 reprisals
were not limited to non-forcible measures. However, as was clearly pointed out in the Air
Service Agreement arbitration, the prohibition on the use of force had since limited the scope
of measures available to States in response to unremedied breaches of international obliga-
tions, provided that the prior unlawful act did not qualify for use of force in self-defence.158
The concept of reprisals has since been limited to action taken in time of international armed
conflict equivalent to the now strictly limited notion of belligerent reprisals.159 In the example
given above, this implies that State B may not suspend its obligation to refrain from the use of
force. Thus, as far as the G77 and socialist countries’ support for national liberation move-
ments against colonial regimes between the 1970’s to the 1990’s involved arming opposition
groups in breach of the prohibition against use of force, they where outside the scope of law-
ful countermeasures.160
4.2.2 Conditions and procedural limitations
Prior to taking countermeasures, States must call for cessation of the wrongful act.161 In addi-
tion, ARSIWA proposes a duty to notify of the intention to take countermeasures, except in
cases of urgency.162 Because countermeasures in the first instance are based on a subjective
assessment on the part of any State taking countermeasures, the limitation looses some of its
constraining force. This is especially so in respect to mass atrocities, where urgency is the
normal state of affairs.
The permissibility of taking countermeasures does not relieve the parties from attempting – at
least to a minimum degree – to reach an amicable solution.163 This duty derives from the prin-
157
Art. 2(4)
158
US v. France p. 443 para. 81; UNC art. 51; ARSIWA art. 50(1)(a); also affirmed in the Declaration on
Friendly Relations (GA 25/2625), First Principle
159
ARSIWAC para. 3 to Chapter II of Part III
160
Tams (2005) pp. 211-212
161
Hungary v. Slovakia p. 56 para. 84; ARSIWA art. 52(1)(a)
162
ARSIWA art. 52(1)(b) and 52(2)
163
de Hoogh (1996) p. 236
26
ciple of peaceful settlement of international disputes codified in the UN Charter art. 33.164 As
to the ILC proposal establishing a duty to negotiate,165 it is neither elaborated on in the com-
mentaries nor is it mentioned in judicial awards, and its status as a general condition seems to
be in the spirit of progressive development of international law. The right to take counter-
measures does not relieve the parties from engaging each-other, including by resort to com-
pulsory dispute settlement. In this situation, ARSIWA outlaws countermeasures if the wrong-
ful act has ceased, binding dispute settlement is pending and the responsible State is acting
good faith.166 In this sense, the ARSIWA does not harmonize well with the Air Service
Agreement arbitration167 and the legal status of the provision is therefore unclear.168
4.3 Limits to Countermeasures
4.3.1 Absolute limits
4.3.1.1 Hierarchy of international law – peremptory norms
ARSIWA arts. 50(1)(d) and 26 limit restrict the permissibility of countermeasures with refer-
ence to peremptory norms. The situation envisaged is clear: State A imposing countermeas-
ures on State B is not entitled to enslave nationals of State B in the territory of State A as a
countermeasure to genocidal acts on the part of State B.
4.3.1.2 Limits based on fundamental human rights and humanitarian law
Many of the rights encompassed in ARSIWA art. 50(1)d will also constitute fundamental hu-
man rights under ARSIWA art. 50(1)b. Although no catalogue of rights is offered, the gen-
eral reference to non-derogable rights169 and analogies to humanitarian law170 indicate that the
ILC did not intend them to be restricted to rights of peremptory status. Despite the vagueness
164
165
ARSIWA art. 52(1)(b)
166
ARSIWA art. 52(3) and 52(4)
167
See US v France para. 91 p. 445
168
de Hoogh (1996) p. 238
169
ARSIWAC para. 6 to art. 50; ICCPR art. 4(2); ECHR art. 15; ACHR art. 27
170
ARSIWAC para. 7 to art. 50; AP1 art. 54(1), which also falls under the category of ARSIWA art. 50(1)(b)
(ARSIWAC para. 7 to art. 50)
27
of the category, the human rights in question are those safeguarding fundamental considera-
tions of humanity.171
The limitation in art. 50(1)(c) refers to the humanitarian law on reprisals against protected
categories of persons and objects. Those prohibitions are codified among others in the 1929
Geneva Convention Relative to the Treatment of Prisoners of War, the Geneva Conventions
(I)-(IV) and their Additional Protocol I.172
4.3.2 Proportionality
4.3.2.1 The Principle of Proportionality
Already in the context of reprisals, international law recognized a loose proportionality re-
quirement in that clearly disproportionate reprisals were unlawful.173 The central feature of
the principle of proportionality is that the countermeasure must have “some sense of equiva-
lence with the alleged breach”.174 In the examination of the alleged breach, not only the injury
actually suffered but also the importance of the questions of principle arising from the alleged
breach must be taken into account.175 In the Gabcikovo-Nagymaros case, the ICJ affirmed that
the countermeasure must be “commensurate to the injury suffered, taking account of the
rights in question”176 – a clear reference to the principle of proportionality.
In responding to mass atrocities, the situation will often involve balancing incommensurable
values. It would therefore pose the challenge of quantifying (in most cases) a non-quantifiable
value; when do the adverse effects of trade restrictions outweigh the prevention of further
massacres?
171
Portugal v. Germany p. 1026; ARSIWAC para. 5 to art. 50
172
173
Portugal v. Germany p. 1028; Nolte, (2010) pp. 249-250; ARSIWAC para. 2 to art. 49
174
175
176
Hungary v. Slovakia para. 85 p. 56
28
Some have argued that the correct approach to proportionality, thus avoiding incommensura-
bility, is to assess whether the measure taken in fact induces compliance.177 This approach is
not supported either by the case law cited above or the ILC, which correctly considers the
injury suffered, importance of the interests protected by the rule breached and the effects on
the right of the target state to be essential.178 Additionally, determining the proportionality of
a measure with reference to its success in inducing the target State towards compliance would
make proportionality fully dependent upon the actions of the target State, potentially leading
to “a spiral of more numerous or more severe countermeasures”.179
The precise threshold of proportionality cannot be stated in abstract, but must be assessed in
light of specific facts.180 However, de Hoogh, following Arangio-Ruiz, considers that, in re-
spect of international crimes (now serious breaches of peremptory norms) even extreme eco-
nomic coercion would not amount to disproportionality.181 The rationale is obvious; non-
occurrence of serious breaches of fundamental rules is essential for the proper functioning of
international law. On the other hand, if either retorsion or countermeasures have the direct or
indirect causal effect of depriving the population of the responsible State of its fundamental
human rights, they would not be disproportional, but outright unlawful.182
The general risk of disproportionate abuse associated with self-assertion was noted by the ICJ
in Corfu Channel, where, in response to the UK’s unilateral minesweeping operations in the
territorial waters of Albania, the Court stated that the right to intervention was a manifestation
of a “policy of force, such as has, in the past, given rise to most serious abuses” and that it
therefore could not be accepted.183 Especially in instances where violations of erga omnes
obligations do not damage State interests, “the danger of abuse will be great, as will be the
lack of any regularity, objectivity and evenhandedness”.184 However, current State practice
177
White (2010) pp. 539-540
178
179
de Hoogh (1996) pp. 267-268
180
181
de Hoogh (1996) p. 269 with references.
182
ARSIWA art. 50(1)(b); Portugal v. Germany p. 1026; de Hoogh (1996) pp. 260-261
183
UK v. Albania p. 35
184
Simma (1994) p. 319
29
shows that countermeasures imposed generally are of a far more trivial magnitude, often lim-
ited to severing air links and temporary economic embargoes.185
4.3.2.2 The Relationship to Punitive Measures and Economic Coercion
These measures will usually involve a combination of retorsion and countermeasures in large
scale. The ILC notes that the concept of sanctions is vague and restricts its meaning to
measures taken within the auspices of international organizations.186 Within the ILC itself, the
notion of countermeasures evolved from the earlier concept of punitive sanctions.187
Some commentators insist on making a strict distinction in that “countermeasures are instru-
mental while [non-forcible] reprisals are punitive”.188 It is true that “reprisals are illegal if
imposed with the purpose of punishment or coercion of the sovereign will of the target
State”.189 However, “evidence of the existence of punitive intent on the part of the injured
State would appear to be present only to the extent that the injured State did not abide by the
rules on (dis)proportionality”.190 Because of these evidentiary circumstances, the final, non-
temporary effects, the punitive and exemplary character of measures should be seen as ele-
ments in the proportionality analysis and not as a means to distinguish punitive from instru-
mental measures. This seems also to be acknowledged by the ILC.191
The same applies to instances of extreme economic coercion (e.g. the US economic blockade
of Cuba).192 Clearly, these cases will usually involve several prima-facie breaches and they
may, by their magnitude, ultimately incapacitate fully the target State to the severe detriment
of its population. Whether or not they constitute lawful retorsion depends on whether the
measures are contrary to international law; whether they ultimately are unlawful must be de-
185
Tams (2005) p. 229; Tams (2011) p. 392
186
ARSIWA para. 3 to Chapter II of Part III
187
Alland (2002) pp. 1223-1224
188
White (2010) pp. 546-547
189
Ibid. p. 548
190
de Hoogh (1996) p. 217
191
ARSIWAC para. 9 to art. 49 and para. 7 to art. 51
192
Commented on in White (2010) pp. 546-547
30
termined on the basis of absolute limits on the right to take countermeasures and the more
flexible principle of proportionality.
4.3.3 Lex Specialis and Self-Contained Regimes
Despite the duty to prevent and ensure respect and the arguments for its hierarchical status,
the means to comply with the obligation is largely within the discretion of States.
The notion of ‘self-contained regime’ referred to in this subsection is a narrow one denoting a
subsystem of law with an exhaustive list of secondary rules excluding the general legal con-
sequences of wrongful acts.193 The secondary rules of general international law are generally
derogable194 and the legality of suspending a specific obligation is therefore also dependent on
the regime to which it pertains. A clear example of a self-contained regime is diplomatic
law.195 This sub-section will examine the area of non-fundamental human rights.
4.3.3.1 International Human Rights Outside the Scope of Fundamental Human

Rights
The strict limitation in subsection 4.3.1.1 does not include the observance of ‘non-
fundamental’ human rights. This would imply, inter alia, that restrictions on the freedom of
movement and the right to property196, but also the freedom of speech and assembly, of pri-
vate life and non-discrimination of other reasons than racial could be suspended in case of
countermeasures taken by State A against State B directed at State B’s nationals in State A.
De Hoogh argues that, because of the fact that most human rights treaties do not include ex-
press prohibitions on reprisals, the whole bulk of non-fundamental human rights are not off
limits to countermeasures.197 This view seems to be too formalistic.
193
Koskenniemi (2006) p. 66 para. 124
194
195
US v. Iran para. 86 p. 40
196
de Hoogh (1996) p. 262
197
Ibid. pp. 261-263
31
In the Nicaragua case the Court noted that when human rights are protected by international
conventions, the proper procedures for ensuring respect are those enshrined in the conventions
themselves.198 Although the Court referred to use of force, Koskenniemi interprets the judg-
ment to express that reciprocal breaches of human rights are generally impermissible, and
suggests that it might constitute a self-contained regime.199 First, it might be noted that in the
case of responsibility for genocide, crimes against humanity and egregious war crimes, these
acts will necessarily also constitute breaches of human rights, and therefore fall within the
framework of universal human rights instruments thus excluding reciprocal breaches. Second,
even in cases where the target State is not a party to the human rights instrument (e.g. a re-
gional human rights treaty), human rights instruments seek to enhance protection. To general-
ly allow suspension of human rights for groups of people as a response to gross human rights
violations would seem to be contrary to the general purpose of human rights regimes.
A more nuanced view would be to require limitations on non-fundamental rights to be in con-

formity with the human rights regime itself due to their character lex specialis. Whether this
allows for countermeasures remains to be seen. It may be noted that within the ECHR regime,
the ECtHR has in a series of cases concerning immunity shown awareness in the interests of
States in complying with obligations under international law,200 and allowed for those exten-
sions of immunity beyond what was strictly prescribed under international law201 that are pro-
portionate202 to “the legitimate aim of complying with international law”.203
4.4 Countermeasures Against States Other Than the Principally

Responsible One(s)
The situation in this section is not where there are several States either in isolation or through
cooperation committing serious breaches of obligations erga omnes, but rather where one or
more States provide aid or assistance to the breach or the maintenance of the situation created
198
Nicaragua v. US 1986 p. 134 Paras. 267-268
199
Koskenniemi (2006) p. 66 para. 125
200
See e.g. Al-Adsani v. UK para. 55
201
Fogarty v. UK, para. 37; McElhinney v. Ireland para. 38
202
McElhinney v. Ireland para. 36
203
Ibid. para. 35
32
by the breach. The question is whether non-injured States would have legal grounds for taking
countermeasures in response to such acts against the aiding or assisting States.
To illustrate the point of this subsection, we begin with a semi-hypothetical example:
Due to geopolitical interests in the region, certain States are providing arms and other material
to different parties to the on-going conflict in Syria. The parties gradually take control of dif-
ferent regions within the territory.204 It is clear that all parties to the conflict are responsible
for serious breaches of humanitarian law committed prior to and after the delivery of material.
As to the delivery of arms, this could constitute use of force in contravention of art. 2(4) of
the UN Charter.205 In addition, States supplying weapons and other material may be responsi-
ble for providing aid or assistance and failing to comply with the extraterritorial duty to pre-
vent and ensure respect.
The general rule is that countermeasures cannot affect the rights of third States not responsi-
ble.206 As Tams notes, condoning grave or systematic breaches of obligations erga omnes will
“usually not give rise to obligations erga omnes”.207 The alternative, aid or assistance208 is of
a different nature involving wrongful acts that facilitate breaches of international law. It there-
fore presupposes greater involvement on the part of the third State in the wrongful act com-
mitted and, although aiding or assisting will imply condoning, the opposite is far from neces-
sary.
Under art. 16, as recognized under international law,209 States may incur international respon-
sibility for aiding or assisting in the commission of an internationally wrongful act. First, a
distinction should be made between cases where the aid or assistance is necessary for the act
to take place and cases where the aid or assistance is only incidental for the act. In the first as
opposed to the second instance, the State aiding or assisting may be principally responsible
204
See ARSIWA art. 9
205
Nicaragua v. US 1986 p. 119 para 228
206
ARSIWA art. 49(1); ARSIWAC para. 4 to art. 49
207
See above, section 4.2.1; Tams (2005) footnote 160 on p. 230
208
ARSIWA art. 16 and similarly art. 41(2)
209
ARSIWAC para. 7 to art. 16; Crawford (2013) p. 401; Bosnia v. Serbia 2007 p. 217 para. 420
33
along with the State directly committing the wrongful act.210 In our example, the supply of
arms and material was merely incidental for the commission of the subsequent wrongful acts
and not at all relevant for the wrongful acts already committed. Second, responsibility will
only be relevant if the aid or assistance facilitates the commission of the wrongful act.211 Re-
sponsibility presupposes that the State has actual knowledge of the circumstances of the inter-
nationally wrongful act. The Application of the Genocide Convention case might be interpret-
ed to the effect that the knowledge must also include the intent of the perpetrator to commit
the wrongful act.212 The question is whether the State must have intended to facilitate the
commission of the wrongful act. The ILC’s position seems to be that the requirement is sub-
jective/psychological.213 However, an objective/factual requirement would seem to harmonize
better with UNGA practice,214 the wording of art. 16(a)), and with the general law in that re-
sponsibility for acts (as opposed to omissions) generally does not presuppose fault.215 The
assumption is therefore that the intent of States is manifested in their acts. In our example,
strengthening geopolitical influence in the region, and not the breach of fundamental rules,
motivated the aid. However, because it is highly unlikely that the aiding States would be un-
aware of the unlawful conduct by all parties to the conflict and the serious risk of further un-
lawful conduct, the case for responsibility for the aiding States is strong.
Suppose further that a secular liberation movement, having established its own administration
in the northeast of Syria, and constituting a secular front against religious armed opposition-
groups, takes control over border towns in the northern Iraq and subjects them to its own
permanent administration. The liberation movement’s military capability is maintained with
the help of aiding States seeking to halt the expanding power of religious armed groups in
Syria. In this example, the material-providing States may be responsible for aiding or assist-
ing in maintaining the situation created by the unlawful annexation of territory through acts of
aggression.
210
211
ARSIWA art. 16(2)
212
Bosnia v. Serbia 2007 pp. 218-219 paras. 422-423
213
ARSIWAC para. 9 to art. 16; Crawford (2013 p. 407) argues that the passages in Bosnia v. Serbia 2007 paras.
422-423 translate into a requirement of positive intent also for the aiding or assisting State.
214
As restated in ARSIWAC para. 9 to art. 16
215
Crawford (2010) pp. 457-458
34
The prohibition on providing aid or assistance in maintaining a situation216 that constitutes a
breach of obligations erga omnes is universally valid and in itself opposable erga omnes.217 In
this case, the aiding State is effectively maintaining the unlawful situation created by the lib-
eration movement’s use of force against the territorial integrity of Iraq.
The examples exacerbate the legitimacy deficit connected with self-assertion in two ways:
first, in that it would substantially widen the scope of potential States against which counter-
measures may be imposed; second, in that the factual scenario is less obvious in these cases
than for the principally responsible State. In consequence, the stability of international rela-
tions may be compromised. It also shows the challenges of international law in balancing the
legality of self-assertion with the legal constraining of political power.
As a matter of legal consistency however, if legal interest on the part of non-injured States
first is acknowledged, it would seem to follow logically that breaches of obligations erga om-
nes through aiding or assisting in the commission or maintenance of serious breaches of obli-
gations erga omnes, clearly undermining the duty to prevent, entail a legal interest for the
international community as a whole in enforcing compliance against aiding or assisting
States. Nevertheless, it should be stressed that this issue is far from clear. In State practice so
far, countermeasures by non-injured States seem to have been directed against principally
responsible States only.218
4.5 Conclusion
International law is by now well familiarized with the institution of countermeasures. Individ-
ual countermeasures by non-injured States governed by a clear legal regime of absolute and
flexible limits within which States mostly navigate.
Furthermore, the chapter has sought to assess the arguments referring to the risk of abuse of
power. Evidentiary circumstances will most often preclude any meaningful assessment on
216
ARSIWA art. 41(2)
217
South West Africa Advisory Opinion p. 56 para. 126
218
Tams (2005) p. 230
35
underlying motivations for taking countermeasures, even in the case of injured States. Alt-
hough it must be acknowledged that the inherent nature of countermeasures make dispropor-
tionate responses a risk, the analysis so far has suggests that the threshold of disproportionali-
ty of countermeasures in response to mass atrocities must be high. Even under these circum-
stances, practice suggests that States generally adopt modest measures.
Lastly, chapter has sought to extend the discussion beyond measures against the principally
responsible State(s). Although international law provides a solid framework for allowing
countermeasures against aiding or assisting States, the extension reveals some concerns of
legitimacy in allowing self-assertion, as the responsibility of the target State often will be fac-
tually unclear.
36
5 The Responsibility to Protect and Individual
Countermeasures by Non-injured States
5.1 Introduction
In a narrative where the international community is developing towards constitutionalism,

self-assertion would be the obscene219 remnant of pre-institutionalized states of affairs.220 The
emergence of a commitment to collective effort in combating mass atrocities manifested in
the R2P project poses the question of the need for countermeasures in the general interest.
This chapter will focus on the 2005 WSOD paras. 138-139 and subsequent developments, and
will first introduce the basic content of R2P and the implementation of its pillar three, namely
timely and decisive response; second, examine in what way Security Council acting under art.
41 of Chapter VII of the UN Charter can influence the right of individual States to take coun-
termeasures and whether R2P leaves room for individual non-forcible measures as a response
to mass atrocities; third whether the General Assembly could take a more prominent role in
recommending and coordinating measures.
5.2 The Responsibility to Protect Introduced
R2P is the political framework for action adopted by UN Member States in 2005221 based on
the international legal obligations for the international community to prevent genocide, crimes
against humanity and war crimes222 through a three-pronged non-sequential pillar system,
219
“Whatever is anachronistic is obscene. As a (modern) divinity, History forbids us to be out of time.” - Barthes
(1978) p. 178
220
de Wet (2006) p. 75
221
WSOD paras. 138-139; reaffirmed in the 2009 GA 63/308
222
Zyberi (2013) p. 512; Amnéus (2013) p. 14; Strauss (2011) pp. 84-85; Bellamy (2011) p. 83; Brunnée (2011)
pp. 74-77; SG 2009 para. 3; SG 2012 para. 59
37
each of equal importance for the overall framework of protection.223 In accordance with inter-
national law, R2P applies both in and outside the context of armed conflict.
The first pillar reiterates the responsibility of the individual State to “protect its populations
from genocide, war crimes, ethnic cleansing and crimes against humanity”.224 Under R2P, the
duty of protection entails a responsibility to prevent the crimes themselves and their incite-
ment through “appropriate and necessary means”.225 The concrete implementation of R2P was
left to further consideration.226 Although this pillar is the one with the clearest foothold in
pre-existing international law,227 the subsequent SG reports go much further in urging States
to take a wide number of preventive measures. They include, inter alia, to create legal, eco-
nomic and political platforms for inclusion of marginalized groups,228 implement accountabil-
ity measures,229 strengthen the security sector and the rule of law,230 to secure human rights
protection and monitoring,231 to enhance information sharing232 through peer review proce-
dures and partnerships with other States,233 and create mechanisms for identifying the exist-
ence of risks of mass atrocities.234
The second pillar235 establishes a commitment on the part of the international community to
“encourage and help”236 States to comply with their protection responsibilities and to cooper-
ate to provide assistance in capacity building,237 strengthening the rule of law,238 post-trauma
223
SG 2012 para. 2
224
WSOD para. 138 first sentence
225
226
WSOD para. 139 third sentence
227
Bellamy (2011) p. 85; See above, section 2.3
228
SG 2013 paras. 45, 61, 63
229
SG 2009 paras. 19, 27; SG 2013 paras. 41-42
230
SG 2013 paras. 44, 47
231
SG 2009 paras. 16-17; SG 2013 paras. 49, 71
232
SG 2009 para. 22
233
SG 2013 paras. 69-71
234
Ibid. paras. 60, 71
235
WSOD para. 138 last sentence and para. 139 last sentence
236
WSOD para. 138 last sentence
237
WSOD para 139 last sentence
38
peacebuilding239 and otherwise to assist the relevant State to meet its commitments under pil-
lar one.240
The third pillar establishes a responsibility to react.241 For this purpose WSOD distinguishes
between coercive242 and non-coercive243 measures. Among the non-coercive measures are
dispute settlement procedures under UNC art. 33,244 monitoring and observer missions,245
referral to the ICC,246 and regional arrangements under the UN Charter Chapter VIII. If
peaceful means prove inadequate and the State manifestly fails to protect its population, the
community is committed to take timely and decisive action through the SC under the Charter
Chapter VII. Timely and decisive action is to be determined on a case-by-case basis and its
execution in cooperation with regional organizations as appropriate.247 As to sanctions, the
SG 2012 report stressed the need for them to be targeted so as to secure that those responsible
are the ones that are affected by them. Under the third pillar, the GA is also recognized a role
through the ‘Uniting for Peace’ procedure.248
For individual States, the legal status on the duty to cooperate on the part of the international
community relevant for pillars two and three is still somewhat unclear.249 This thesis has ar-
gued that the core of the duty to react under pillar three has a basis in pre-existing internation-
al law.250
238
SG 2009 para. 47
239
Ibid. para. 48
240
Ibid. para. 28
241
WSOD para. 139
242
WSOD para. 139 second sentence
243
244
SG 2012 para. 22
245
Ibid. para. 28
246
Ibid. para. 29
247
WSOD para. 139 second sentence
248
UNC arts. 10-12, 14-15; GA 377/5 para. 1; SG 2009 para. 63; Zyberi (2013) p. 519
249
Vashakmadze (2012) p. 1228 considers it to have developed into customary international law
250
See above, Section 2.3
39
Within the R2P framework , non-coercive prevention is most important.251 This is an expres-
sion of the policy function of R2P, seeking to minimize the occurrence of mass atrocities and
hence the need for reaction under pillar three.252 With respect to carrying out the duties under
all three pillars, procedures for early warning and assessment of risks are “essential for the
effective, credible and sustainable implementation” of R2P.253
In sum, R2P envisages multi-layered implementation involving participation by the UN’s

principal and subsidiary organs, regional and sub-regional organizations and States. NGO’s
and civil society are likewise considered to play key roles.254 The comprehensive approach of
R2P is based on the realization that the complexity in combating mass atrocities demand in-
formed, concerted, flexible and context-sensitive measures.255
Whilst pillars one and two are still in formation, the implementation of pillar three has devel-
oped most rapidly.256 Under pillar three, the accomplishment of R2P thus far has not been as a
“rallying call” to international action.257 Instead, the effects of R2P are in the internalization
of its rationale; protecting populations from mass atrocities is seen to be in the interests of
States themselves, thereby increasing the likelihood of action in R2P situations.258
In respect of art. 39 of the UN Charter, R2P may represent a rationale for conceptualizing
mass atrocities more easily as one of the categories of art. 39.259 The SC has made express
reference in resolutions to R2P several times since 2006.260 However, the SC is lagging be-
hind in considering grave violations of human rights in and of themselves as threats to the
251
Evans (2008) p. 79; SG 2009 para. 56
252
Bellamy (2010) pp. 163-164
253
SG 2010 para. 19; See WSOD para. 138 last sentence
254
e.g. SG 2009 para. 59; SG 2012 paras. 38-48; SG 2013 paras. 53-54
255
This is expressed throughout the reports, e.g. SG 2009 para. 48; SG 2012 para. 20; SG 2013 para. 74
256
Luck (2012) p. 105
257
Bellamy (2013) p. 352
258
Ibid.
259
Vashakmadze (2012) p. 1231
260
e.g. SC Resolutions 1674 (2006), 1706 (2006), 1894 (2009), 1973 (2011) and 2109 (2013)
40
peace, in absence of a risk of armed conflict.261 Furthermore, the unprecedented action in Lib-
ya with express mention of R2P262 and paralysis in the case of Syria have been taken as symp-
tomatic of inconsistent and context-dependent effectiveness of SC reaction.263
5.3 The Security Council and individual measures
5.3.1 The Security Council and its influence on States’ competence to take
individual measures
The SC has the “primary responsibility to protect the maintenance of international peace and
security”,264 including the responsibility to protect populations from the crimes under R2P.265
Decisions by the SC, including measures under arts. 40 and 41, are legally binding upon
members of the UN and possibly upon non-members alike.266
The wording of art. 41 is non-exhaustive, and permits the SC to decide on any measure short
of the threat or use of force, including countermeasures proper.267
Turning back to the binding nature of SC decisions under art. 41, a first set of limitations
stems from the Charter itself. This implies, as a general matter, that a SC decision must have
legal basis in the UN Charter and that it cannot derogate from the rules contained therein.268
Art. 103, granting prevailing effect of the Charter in case of conflict, applies to the decisions
by the SC.269 This implies, inter alia, that the limitation for States in respect of self-contained
regimes does not apply when acting under the banner of a permissive SC decision, and, alt-
hough the SC in principle is bound by customary international law,270 this does not apply to
261
Krisch (2012b) p. 1287
262
SC Resolution 1973 (2011)
263
Gill (2013) pp. 103-105; on contextual circumstances influencing reaction, see Bellamy (2013) pp. 342-343
264
UNC art. 24
265
Peters (2012a) p. 766
266
UNC art. 25; Peters (2012b) pp. 795, 800; Krisch (2012c) p. 1310
267
Krisch (2012c) p. 1311
268
Peters (2012b) p. 828-829
269
Ibid. pp. 850-851
270
Ibid. p. 819
41
emergency measures under Chapter VII.271 In these cases art. 103 derogates from the bulk of
customary international law also for the Member States.272 In addition, the principle of pro-
portionality is less strict than for individual countermeasures.273 Despite art. 103, the duty to
carry out the decisions of the SC is not unqualified. This brings us to the second set of limita-
tions: First, inasmuch as it conflicts with jus cogens, the SC decision is null and void.274 Se-
cond, albeit controversial, it might be argued that the power to derogate does not extend to all
the bulk of human rights and humanitarian law that are not of jus cogens status.275 In such a
case, the extent of permissible derogations is determined by the relevant human rights instru-
ments themselves,276 whilst mere restrictions are governed by a loose principle of proportion-
ality.277 With the exception of jus cogens and in cases where the SC decision is blatantly ille-
gal, the presumption of legality will in any event soften the aforementioned operational limi-
tations for Member States.278
In consequence, the binding nature of a SC decision under Chapter VII may either limit or
extend the rights of States to take countermeasures in response to mass atrocities. Subject to
the limits mentioned in Chapter 4, there is no legal impediment for individual States to take
countermeasures that reach further than expressly permitted by a SC decision, unless express-
ly limited by the decision itself.
5.3.2 The residual and complementary role of individual measures
The heading of this sub-section draws on Simma’s view of individual reactions as residual to
institutional responses.279 The question is therefore whether R2P makes individual non-
forcible coercive measures unnecessary. This is an empirical question regarding the imple-
271
Krisch (2012a) p. 1257. For a contrary position, see Peters (2012b) p. 833
272
Krisch (2012a) p. 1262; Peters (2012b) p. 853 is cautiously sceptical to this position
273
Krisch (2012a) p. 1260
274
Peters (2012b) pp. 852-853; Krisch (2012a) p. 1259; Krisch (2012c) p. 1314
275
Peters (2012b) pp. 821, 827, 853-854; Krisch (2012a) p. 1258
276
Peters (2012b) p. 825
277
This is consistent with the practice of the SC, see Krisch (2012c) pp. 1316, 1318; Human rights bodies grant a
wide margin of appreciation in respect to SC decisions, see Peters (2012b) p. 826
278
Wall Advisory Opinion p. 152 para. 35; Peters (2012b) pp. 843-846
279
Simma (1994) pp. 310-311
42
mentation of R2P. Because of the complexity and context-dependent nature of situations
where mass atrocities occur, no general definitive answer can be given. This section will
therefore present broader considerations.
First it must be noted that States cannot free themselves from the responsibility to prevent and
ensure respect by delegating action efforts to international organizations in the case that these
institutions fail to respond or respond inadequately.280 This is supported by the Application of
the Genocide Convention case, where the ICJ held that the duty to prevent was not limited to
calling upon relevant organs of the UN.281 Second, it must be noted that States have not ex-
pressed their legal intent through R2P not to make use of individual coercive measures not
prohibited under general international law.282
As mentioned, coercive measures under the R2P framework are clearly intended to be exer-
cised by the Security Council or, exceptionally, by the GA in form of recommendations. Most
of the discussion of individual responses has since been confined to that of humanitarian in-
tervention, of which there is limited practice and which might be interpreted to be implicitly
excluded by the emergence of the doctrine of R2P.283 Although individual reaction by non-
injured States is given no mention in WSOD,284 the ICISS report was permissive and a later
report acknowledged a positive contribution by individual non-forcible coercion in response
to mass atrocities.285 This seems to suggest that individual countermeasures are potentially
compatible with R2P. The question then is in which cases individual countermeasures by non-
injured States could complement the R2P doctrine.
First, sanctions more effective at the beginning of conflicts to deter further escalation.286 In
this respect, it might be noted that the threshold for acting under R2P – “manifestly fails”287 –
280
See above, section 2.3.
281
Bosnia v. Serbia 2007 pp. 219-220 paras. 226-227
282
In this sense, R2P is not ‘hard law’, see Luck (2012) p. 86; Vashakmadze (2012) p. 1230
283
E.g. Amnéus (2013) p. 14; SG 2012 para. 32
284
Probably because of the scepticism surrounding humanitarian intervention, see Bílková (2012) pp. 294-295
285
ICISS 2001 para. 4.1, see Bílková (2012) p. 294; SG 2012 paras. 40-41
286
SG 2009 para. 57
287
WSOD para. 139; The vagueness of the concept is noted in Vashakmadze (2012) p. 1230
43
not necessarily is interchangeable with “serious violation”.288 It might therefore be that the
right and duty to prevent and ensure respect could be engaged at an earlier stage than at the
point where a State has ‘manifestly failed’ to protect its population. In this respect, individual
countermeasures might serve as temporary measures.289
Second, if the collective response system is deadlocked in a “vicious cycle of hesitation and
finger-pointing in the face of unfolding atrocities”,290 as is likely to occur in geopolitically
contested regions,291 individual countermeasures might serve a compensatory function.292
However, in an on going conflict with evidence of large scale mass atrocities and complete
disregard for international reputation, the effects of targeted countermeasures against the prin-
cipally responsible State may be meagre.
Third, in cases where measures do not go far enough, individual countermeasures might serve
to complement action by the SC.293 An example would be a SC decision against the principal-
ly responsible State, with countermeasures against third States fuelling the conflict through
the providing of aid or assistance.
In these situations, countermeasures by non-injured States would prima facie be residual and
complementary to collective action through the UN system. This is supported by State prac-
tice, where countermeasures by non-injured States often are taken in conjunction with UN
condemnation of mass atrocities.294
288
ARSIWA art. 40
289
Also noted in Bílková (2012) p. 300
290
SG 2009 para. 60
291
Brookings Policy Paper 2014 p. 28; the problem of selectiveness is also noted elsewhere, see e.g.
Vashakmadze (2012) pp. 1221-1222 and Bellamy (2013) pp. 342-343
292
Bílková (2012) p. 300
293
Ibid.
294
Tams (2011) p. 392
44
5.4 A More Prominent General Assembly?
R2P adds nothing new to existing competences of the GA.295 In respect to the crimes en-
shrined in WSOD para. 138, art. 2(7) does not limit the powers of discussion and decision-
making of the GA.296
Although the legality of the Uniting for Peace procedure somewhat settled, the scope of legal-
ity remains contested and must be determined by reference to the Charter.297 The purpose of
the procedure is to shift the responsibility for the maintenance of peace and security to the GA
in the event that the SC fails to function, and in this way it reveals the secondary responsibil-
ity of the GA in the maintenance of international peace and security.298 In such a case, the GA
can, if the conditions of art. 39 are met; recommend collective coercive measures including
the use of force to restore international peace and security.299
Outside the scope of the ‘Uniting for Peace’ procedure, a resolution by the GA does not nor-
mally create legally binding rights or obligations per se.300 This does not preclude the GA
from recommending coercive enforcement measures concerning international peace and secu-
rity under arts. 10 and 11(2).301 Referral to the SC is necessary only if ‘binding’ decisions are
needed.302 Even under art. 12(1), practice by the GA has drastically narrowed the procedural
limitation for the GA to recommend enforcement measures.303 In light of the Uniting for
Peace Resolution, a veto blocking a SC resolution may be sufficient to exclude the limitation
in art. 12(1) – the SC would no longer be “exercising [its] functions”.304
295
Vashakmadze (2012) pp. 1233-1234
296
This is evident by the peremptory nature of the prohibitions; Nolte (2012) p. 297
297
Peters (2012a) pp. 768-769; Ryangert (2013) p. 118
298
Compare with UNC art. 24
299
GA 5/377 para. 1.
300
Klein (2012a) pp. 481, 486-487
301
Klein (2012a) pp. 473-476; Klein (2012b) p. 501
302
Klein (2012a) p. 475; Klein (2012b) p. 501
303
Klein (2012c) pp. 511-512, 516
304
UNC art. 12(1); Klein (2012c) pp. 512-513; Ryangert (2013) p. 116
45
The consequence would seem to be that, even outside the ‘Uniting for Peace’ procedure, rec-
ommendations are a potentially useful tool for coordinating countermeasures by non-injured
States and securing broader legitimacy. Because resolutions by the GA outside the ‘Uniting
for Peace’ procedure are not creative of rights, coercive measures must be in conformity with
pre-existing international law. Because they are not binding, compliance with the recommen-
dation remains within the discretion of States.
5.5 Conclusion
R2P would seem to be a step closer towards a true ‘international community’ by safeguarding
the interests of the community through collective action. However, as pointed out by Edward
Luck, R2P is still in its infancy and is likely to be a work in progress for quite some time.305
Given the limited success so far of R2P as a rallying call, the practical importance of unilat-
eral countermeasures in response to mass atrocities is therefore not exhausted with the emer-
gence of R2P. Subject to the competences of the Security Council, the General Assembly
could assume a more prominent role in recommending and coordinating non-forcible coercion
against actors responsible for mass atrocities in order to strengthen the legitimacy of the
measures, in virtue of its residual responsibility for the maintenance of peace and security.
305
Luck (2012) p. 85
46
6 Conclusion
International law recognizes the fundamental nature of certain primary norms. This is ex-
pressed, in the law of treaties, in that they override the will of individual States; in the law of
State responsibility, in that all States have a legal interest in their protection. The prohibition
on genocide, crimes against humanity and serious war crimes are instances fundamental
norms erga omnes with jus cogens status. Furthermore, all States are under an extra-territorial
obligation to prevent genocide and there is evidence that the extraterritorial duty applies also
to the prevention of war crimes and crimes against humanity. This prompts the question of
whether non-injured States are entitled to take countermeasures in order to prevent mass
atrocities.
Countermeasures are a means of private-justice that evolved from the earlier doctrine of re-
prisals. They are governed by a set of absolute and flexible limitations, hereunder the princi-
ple of proportionality. Because the proportionality of the measure is determined by the im-
portance of the rule breached and the norms in question are of a fundamental nature, the
threshold for disproportionality is high. In spite of this, States generally resort to modest
measures. Combined, these factors substantially weaken the argument against countermeas-
ures by non-injured States.
State practice on countermeasures by non-injured States in response to serious violations of

obligations erga omnes span over four decades and have been taken in connection with virtu-
ally every major instance of serious breaches of fundamental norms since. Even if one is cau-
tious to comment on their legality, the inclination of the international community to tolerate
them as a non-prohibited necessity is now hardly disputable.
International law does not prohibit countermeasures against aiding or assisting States. Alt-
hough the same is true for countermeasures by non-injured States in response to mass atroci-
ties, the assessment of responsibility will often be based on a complex and equivocal factual
scenario. In these cases, the risk of abuse is more clearly present and there is thus a greater
need to justify the response.
In respect of mass atrocity prevention, R2P is the culmination of community concern with the
universal values of humanity from which the prohibitions on genocide, crimes and humanity
47
and war crimes emanate. Because implementation of R2P is still under development, it does
not make individual responses superfluous. To the contrary, it has been shown that counter-
measures by non-injured States can complement collective action in harmony with the overall
purpose of R2P. In addition, where the SC is deadlocked and there is need to coordinate re-
sponses or secure democratic legitimacy, the GA is competent to assume a role in recom-
mending countermeasures in the general interest.
48
References
Books and Articles
Alland, Denis, Countermeasures of General Interest, European Journal of International Law ,

Vol. 13 (2002), pp. 1221-1239.
http://www.ejil.org/pdfs/13/5/1583.pdf (Last visited April 14 2014)
Amnéus, Diana, The coining and evolution of responsibility to protect: the protection respon-
sibilities of the State: Gentian Zyberi (ed.), ‘The Responsibility to Protect: An Institutional
Approach, Cambridge University Press, 2013. Cambridge Books Online.
http://dx.doi.org/10.1017/CBO9781139567664. pp. 3-32
Barthes, Roland, A Lover’s Discourse: Fragments, Transl. Richard Howard, New York, 1978
Bellamy, Alex J., The Responsibility to Protect – Five Years On, Ethics & International Af-
fairs, Vol. 24 (2010), pp. 143-169.
http:/dx.doi.org/10.1111/j.1747-7093.2010.00254.x
Bellamy, Alex J. and Ruben Reike, The Responsibility to Protect and International Law: Alex
J. Bellamy et al. (eds.), The Responsibility to Protect and International Law, Leiden/Boston
2011, pp. 81-100
Bellamy, Alex J., The Responsibility to Protect: Added value or hot air?, Cooperation and
Conflict, Vol. 48, 2013 pp. 333-357
http:/dx.doi.org/10-1177/0010836713482448
Bílková, Veronika, The Responsivility to Protect: Unilateral Non-Forcible measures and in-
ternational law: Julia Hoffmann and André Nollkaemper, Responsibility to Protect: From
Principle to Practice, Amsterdam, 2012, pp. 291-304
49
Brollowski, Hanna, The Responsibility to Protect and Common Article I of the 1949 Geneva
Conventions and Obligations of Third States: Julia Hoffmann and André Nollkaemper, Re-
sponsibility to Protect: From Principle to Practice, Amsterdam 2012, pp. 93-110
Brunnée, Jutta and Stephen J. Toope, The Responsibility to Protect and the Use of Force:
Building Legality?: Alex J. Bellamy et al. (eds.), The Responsibility to Protect and Interna-
tional law, Boston/Leiden 2011, pp. 59-80
Cassese, Antonio, International Criminal Law, second edition, New York, 2008
Chhabra, Tarun and Jeremy B. Zucker, Defining the Crimes: Jared Genser and Irwin Cotler,
The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time, New
York, 2012, pp. 37-61
Crawford, James, The ILC’s Articles on Responsibility of States for Internationally Wrongful
Acts: A Retrospect, American Journal Of International Law, Vol. 96 (2002), pp. 874-890
(HeinOnline)
Crawford, James and Simon Olleson, The Nature and Forms of International Responsibility:
Malcom D. Evans (ed.), International Law, 2nd edition, New York, 2010. pp. 441-471
Crawford, James, State Responsibility, Cambridge University Press, 2013. Cambridge Books
Online. http://dx.doi.org/10.1017/CBO9781139033060
Evans, Gareth, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All,
Washington, D.C., 2008
Fauschald, Ole Kristian and Bård Tuseth (eds.), Global and Regional Treaties, Oslo, 2012
Gill, Terry D., The Security Council: Gentian Zyberi (ed.), The Responsibility to Protect: An
Institutional Approach, Cambridge University Press 2013. Cambridge Books Online.
50
de Hoogh, André, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry
into the Implementation and Enforcement of the International Responsibility of States, the
Netherlands, 1996
Kadelbach Stefan, Jus Cogens, Obligations Erga Omnes and other Rules – The Identification
of Fundamental Norms: Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Funda-
mental Rules of the International Legal Order, Leiden, 2006, pp. 21-40
Klein, Eckart and Stefanie Schmahl 2012, Article 10: Bruno Simma … [et al] (eds.), The
Charter of the United Nations: A Commentary, Volume I, 3rd Edition, New York, 2012. (Klein
2012a)
2012b)
2012c)
Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argu-
ment, New York, 2005
Krisch, Nico, Introduction to Chapter VII: The General Framework: Bruno Simma … [et al]
(eds.), The Charter of the United Nations: A Commentary, Volume II, 3rd Edition, New York,
2012. (Krisch 2012a)
Krisch, Nico, Art. 39: Bruno Simma … [et al] (eds.), The Charter of the United Nations: A
Commentary, Volume II, 3rd Edition, New York, 2012. (Krisch 2012b)
Krisch, Nico, Art. 41: Bruno Simma … [et al] (eds.), The Charter of the United Nations: A
Commentary, Volume II, 3rd Edition, New York, 2012. (Krisch 2012c)
51
Luck, Edward C., From Promise to Practice: Implementing the Responsibility to Protect: Jar-
ed Genser and Irwin Cotler, The Responsibility to Protect: The Promise of Stopping Mass
Atrocities in Our Time, New York, 2012. pp. 85-106
Neff, Stephen C., A Short History of International Law: Malcom D. Evans (ed.), International
Law, 2nd edition, New York, 2010. pp. 3-31
Nolte, Georg, Thin or Thick? The Principle of Proportionality and International Humanitari-
an Law, Journal of Law and Ethics of Human Rights, vol. 4 (2010) pp. 245-255
http:/dx.doi.org/10.2202/1938-2545.1050
Nolte, Georg, Article 2(7): Bruno Simma … [et al] (eds.), The Charter of the United Nations:
A Commentary, 3rd Edition, New York, 2012
Peters, Anne, Article 24: Bruno Simma … [et al] (eds.), The Charter of the United Nations: A
Commentary, Volume I, 3rd Edition, New York, 2012. (Peters 2012a)
Peters, Anne, Article 25: Bruno Simma … [et al] (eds.), The Charter of the United Nations: A
Commentary, Volume I, 3rd Edition, New York, 2012. (Peters 2012b)
Ragazzi, Maurizio, The Concept of International Obligations Erga Omnes, Oxford University
Press, 2000. Oxford Books Online.
http:/dx.doi.org/10.1093/acprof:oso/9780198298700.001.0001
Rosenberg, Sheri, Responsibility to Protect: A Framework for Prevention: Alex J. Bellamy et

al. (eds.), The Responsibility to Protect and International law, Leiden/Boston, 2011. Pp. 157-
192
Ryangert, Cedric, The General Assembly: Gentian Zyberi (ed.), The Responsibility to Protect:
An Institutional Approach, Cambridge University Press 2013. Cambridge Books Online.
52
Sicilianos, Linos-Alexander, The Classification of Obligations and the Multilateral Dimen-
sion of the Relations of International Responsibility, European Journal of International Law,
Vol 13 (2002), pp. 1127-1145.
http://www.ejil.org/pdfs/13/5/1578.pdf) (Last visited April 14 2014)
Simma, Bruno, Bilateralism and Community Interests in International Law, Collected Cours-
es of the Hague Academy of International Law, Martinus Nijhoff Publishers, 1994. Martinus
Nijhoff Online. http:/dx.doi.org/10.1163/ej.9789041104199.217-384
Simma, Bruno, The Work of the International Law Commission at its Fifty-Second Session
(2000), Nordic Journal of Internatioanl Law, Vol 70 (2001) pp. 183-250 (HeinOnline)
Strauss, Ekkehard, A Bird in the Hand is Worth Two in the Bush – On the Assumed Legal Na-
ture of the Responsibility to Protect: Alex J. Bellamy et al. (eds.), The Responsibility to Pro-
tect and International law, Leiden/Boston, 2011, pp. 25-57
Tams, Christian J., Enforcing Obligations Erga Omnes in International Law, Cambridge Uni-
versity Press, 2005. Cambridge Books Online. http://dx.doi.org/10.1017/CBO9780511494116
Tams, Christian J., Individual States as Guardians of Community Interests: Fasenrath … [et
al] (eds.), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, Ox-
ford University Press, 2011. Oxford Scholarship Online. pp. 379-405
http:/dx.doi.org/10.1093/acprof:oso/9780199588817.001.0001
Turns, David, The Law of Armed Conflict (International Humanitarian Law): Malcom D.
Evans (ed.), International Law, 2nd edition, New York, 2010. pp. 814-847
Vashakmadze, Mindia, Responsibility to Protect: Bruno Simma … [et al] (eds.), The Charter
of the United Nations: A Commentary, Volume I, 3rd Edition, New York, 2012.
Villalpando, Santiago, The Legal Dimension of the International Community: How Communi-
ty Interests Are Protected in International Law, European Journal of International Law, Vol.
21 (2010), pp. 387-419
53
http://www.ejil.org/pdfs/21/2/2011.pdf (Last visited April 14 2014)
de Wet, Erika, The International Constitutional Order, International Comparative Law Quar-
terly vol. 55 (2006), pp. 51-76 (HeinOnline)
White, Nigel and Ademola Abass, Countermeasures and Sanctions: Malcom D. Evans (ed.),
International Law, 2nd edition, New York, 2010, pp. 531-558
Zyberi, Gentian, Sharing the responsibility to protect: taking stock and moving forward: Gen-
tian Zyberi (ed.), The Responsibility to Protect: An Institutional Approach, Cambridge Uni-
versity Press 2013. Cambridge Books Online. http://dx.doi.org/10.1017/CBO9781139567664.
pp. 511-530
54
Documents and Reports
ICISS 2001 International Commission on Intervention and State Sovereignty, Re-

sponsibility to Protect, International Development Research Centre, Ot-
tawa, 2001
http://responsibilitytoprotect.org/ICISS%20Report.pdf
(Last visited April 8, 2014)
SG 2009 Implementing the responsibility to protect, Report of the Secretary-

General, A/63/677 (2009)
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/63/677
SG 2010 Early warning, assessment and the responsibility to protect, Report of

the Secretary-General, A/64/864 (2010)
http://www.responsibilitytoprotect.org/N1045020(1).pdf
SG 2012 Responsibility to protect: timely and decisive response, Report of the

Secretary-General. A/66/847-S/2012/578 (SG 2012)
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/66/874
SG 2013 Responsibility to protect: State responsibility and prevention, Report of

the Secretary-General. UN docs. A/67/929-S/2013/399 (SG 2013)
http://responsibilitytoprotect.org/UNSG%20Report%20on%20RtoP%2
0and%20State%20Responsibility%20and%20Prevention(1).pdf
Brookings Policy Paper 2014 Jones, Bruce and Thomas Wright with Jeremy Shapiro
and Robert Keane, The State of the International Legal
Order, Foreign Policy at Brookings. Policy Paper 33,
February 2014.
http://www.brookings.edu/~/media/research/files/reports
/2014/02/state%20of%20the%20international%20order/i
ntlorder_report.pdf (Last visited April 14 2014))
55
ILA 2000 International Law Association, Final report of the Committee
on Formation of Customary (General) International law of the
International Law Association, London, 2000
Report available here:
http://www.ila-hq.org/en/committees/index.cfm/cid/30 (Last
visited April 16 2014)
ICRC Rule 144 International Commission of the Red Cross, Customary Interna-
tional Humanitarian Law Database. Rule 144: Ensuring Respect
for International Humanitarian Law.
http://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule144
(Last visited April 16 2014)
Koskenniemi, Martti. Framentation of International Law: Difficulties Arising From the Di-
versification and Expansion of International Law, Report of the Study Group of the Interna-
tional Law Commission, A/CN.4/L.682, 2006
http://daccess-dds-
ny.un.org/doc/UNDOC/LTD/G06/610/77/PDF/G0661077.pdf?OpenElement
56
Cases
France v. Turkey (Lotus), Permanent Court of International Justice, The Hague, September 7,
1927
Portugal v. Germany (Naulilaa), Reports of International Arbitral Awards Vol. II pp. 1011-
1033, Lausanne, 31. July 1928
United Kingdom v. Albania (Corfu Channel), International Court of Justice, The Hague, 9
April 1949
Ethiopia/Liberia v. South Africa, International Court of Justice, The Hague, 18 July 1966
Germany v. Denmark/Netherlands, International Court of Justice (North Sea Continental

Shelf), The Hague, 20 February 1969
Belgium v. Spain (Barcelona Traction), International Court of Justice, The Hague, 5 February
1970
Australia v. France (Nuclear Tests), International Court of Justice, The Hague, 20 December
1974
New Zealand v. France (Nuclear Tests), International Court of Justice, The Hague, 20 De-
cember 1974
United States of America v. France (Air Service Agreement), Reports of International Arbitral
Awards Vol. XVIII pp. 417-493, 9 December 1978 (US v France)
United States of America v. Iran (US Diplomatic and Consular Staff in Teheran), Internation-
al Court of Justice, The Hague, 24 May 1980 (US v. Iran)
Nicaragua v. United States of America (Jurisdiction), International Court of Justice, The

Hague, 26 November 1984 (Nicaragua v. US 1984)
57
Nicaragua v. United States of America (Merits), International Court of Justice, The Hague, 27
June 1986 (Nicaragua v. US 1986)
Portugal v. Australia (East Timor), International Court of Justice, The Hague, 30 June 1995
Hungary v. Slovakia (Gabcikovo-Nagymaros), International Court of Justice, The Hague, 25

September 1997
Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Genocide Convention,
Preliminary Objections), International Court of Justice, The Hague, 11 July 1996 (Bosnia v
Serbia 1996)
Democratic Republic of the Congo v. Rwanda (Armed Activities, New Application (2002),
Jurisdiction and Admissibility), 3 February 2006 (DRC v Rwanda)
Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Genocide Convention,
Judgment), International Court of Justice, The Hague 26 February 2007 (Bosnia v. Serbia
2007)
The Prosecutor v. Dusko Tadic (Decision on Interlocutory Appeal for Jurisdiction), Interna-
tional Criminal Tribunal for the former Yugoslavia, The Hague, 2 October 1995
Al-Adsani v. UK, European Court of Human Rights, Strasbourg, 21 November 2001
Fogarty v. UK, European Court of Human Rights, Strasbourg, 21 November 2001
McElhinney v. Ireland, European Court of Human Rights, Strasbourg, 21 November 2001
58
Advisory Opinions
Kosovo Advisory Opinion Accordance with International Law of the Uni-

lateral Declaration of Independence in Respect
of Kosovo, International Court of Justice, The
Hague, 22 July 2010
Wall Advisory Opinion Legal Consequences Construction of a Wall in

the Occupied Palestinian Territory, Advisory
Opinion, International Court of Justice, The
Hague, 9 July 2004
South West Africa Advisory Opinion Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council
Resolution 276 (1970), International Court of
Justice, The Hague, 21 June 1971
Reservations Advisory Opinion Reservations to the Convention on the Preven-

tion and Punishment of the Crime of Genocide,
International Court of Justice, The Hague, 28
May 1951 (Reservations Advisory Opinion)
Nuclear Weapons Advisory Opinion Legality of the Threat or Use of Nuclear Weap-
ons, International Court of Justice, The Hague, 8
July 1996
59
Treaties/Conventions/Declarations
UNC/Charter/UN Charter Charter of the United Nations, San

Fransisco, January 26 1945
VCLT Vienna Convention on the Law of Treaties, Vienna,

1969
ICC Statute Rome Statute of the International Criminal Court,

Rome, July 17, 1998
Geneva (I) Geneva Convention (I) for the Amelioration of the Con-
dition of the Wounded and Sick in Armed Forces in the
Field, Geneva, August 12, 1949
Geneva (II) Geneva Convention (II) for the Amelioration of the

Condition of the Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Geneva, August 12,
1949
Geneva (III) Geneva Convention (III) relative to the Treatment of

Prisoners of War, Geneva, August 12, 1949
Geneva (IV) Geneva Convention (IV) relative to the Protection of

Civilian Persons in Time of War, Geneva, August 12,
1949
AP1 Protocol Additional to the Geneva Conventions of 1949,

Geneva, June 8 1977
Genocide Convention Convention on the Prevention and Punishment of the

Crime of Genocide, New York, 9 December 1948
60
ICCPR International Covenant for Civil and Political Rights,
New York, 16 December, 1966
ICESCR International Covenant for Economic, Social and Cul-

tural Rights, New York, 16 December 1966
UNFCCC United Nations Framework Convention on Climate

Change, New York, May 9 1992
CBD Convention on Biological Diversity, Rio de

Janeiro, June 5 1992
ECHR Convention for the Protection of Human Rights

and Fundamental Freedoms, Rome, November 4,
1950
ACHR American Convention on Human Rights, San

José, November 22 1969
Geneva Convention 1906 Convention for the Amelioration of the Condi-

tion of the Wounded and Sick in Armies in the
Field, Geneva, 6 July 1906
Rio Declaration Rio Declaration on Environment and Develop-

ment, Rio de Janeiro, June 14, 1992
1899 Hague Declaration I Declaration on the Use of Projectiles the Object

of Which is the Diffusion of Asphyxiating or
Deleterious Gases, The Hague, July 29, 1899
1899 Hague Declaration II Declaration on the Use of Bullets Which Expand

or Flatten Easily in the Human Body, The
Hague, July 29, 1899
61
UDHR General Assembly. Universal Declaration of
Human Rights 217/3 (1948).
http://www.un.org/en/ga/search/view_doc.asp?sy
mbol=A/RES/217(III)&Lang=E&Area=RESOL
UTION
Statute of the Special Court for Sierra Leone, January 16, 2002.
http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3D&
62
UN Declarations and resolutions
General Assembly. Uniting for Peace 5/377 (1950).

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/377(V)&Lang=E&Area=RES
OLUTION
General Assembly. Manila Declaration on the Peaceful Settlement of International Disputes

37/10 (1982).
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/37/10&Lang=E&Area=RESO
LUTION
General Assembly. Declaration on Principles of International Law concerning Friendly Rela-

tions and Cooperation among States in accordance with the Charter of the United Nations.
25/2625 (1970).
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2625(XXV)&Lang=E&Area=
RESOLUTION
General Assembly. 2005 World Summit Outcome. 60/1 (2005). (WSOD)

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/60/1
General Assembly. The responsibility to protect 63/308 (2009).

http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/308&Lang=E
Security Council. Protection of Civilians in Armed Conflict (S/RES/1674). April 28, 2006.
ny.un.org/doc/UNDOC/GEN/N06/331/99/PDF/N0633199.pdf?OpenElement
Security Council. Reports of the Secretary-General on the Sudan (S/RES/1706). August 31,
2006
ny.un.org/doc/UNDOC/GEN/N06/484/64/PDF/N0648464.pdf?OpenElement
63
Security Council. Protection of Civilians in Armed Conflict (S/RES/1894). November 11
2009
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1894(2009)
Security Council. Libya (S/RES/1973). March 17, 2011.

Security Council. Sudan (S/RES/2109). July 11, 2013

64
ILC
ARSIWA Draft Articles on Responsibility of States for Internationally

Wrongful Acts, 2001
http://legal.un.org/ilc/texts/instruments/english/draft%20articles
/9_6_2001.pdf
ARSIWA 1996 Draft Articles on Responsibility of States for Internationally

Wrongful Acts Adopted by the ILC on First Reading with
commentaries, January 1997
http://legal.un.org/ilc/texts/instruments/english/commentaries/9
_6_1996.pdf
ARSIWAC Draft Articles on Responsibility of States for Internationally

Wrongful Acts, with commentaries, Yearbook of the Interna-
tional Law Commission, 2001, vol. II, Part Two
_6_2001.pdf
DALTC Commentaries to the Draft Articles on the Law on Treaties

with commentaries, Yearbook of the International Law Com-
mission 1966, Vol. II
_1_1966.pdf
65

682 PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

682 PDF

Uploaded by

Copyright:

Available Formats

Erga Omnes and

Antall ord: 17911

2 OBLIGATIONS ERGA OMNES ..................................................................................... 4

2.1 From Individual to Community Interests in International Law ........................................ 4

3 NON-INJURED STATES AND INDIVIDUAL COUNTERMEASURES – THE ILC

3.1 Introduction ..................................................................................................................... 18

4.1 Introduction ..................................................................................................................... 24

5.1 Introduction ..................................................................................................................... 37

ARSIWA DRAFT ARTICLES ON THE RESPONSIBILITY OF STATES FOR

2.1 From Individual to Community Interests in International Law

2.1.1 Historical Overview

2.1.3.1 As an absolute limit to circumstances precluding wrongfulness

2.1.3.2 Additional obligations for serious breaches of peremptory norms

2.1.3.3 Invocation of responsibility and claims

33. […] In particular, an essential distinction should be drawn between

34. Such obligations derive, for example, in contemporary international

2.2.2 Criteria for the identification of obligations erga omnes

2.3 Instantiations of obligations erga omnes

2.3.2 War Crimes and crimes against humanity

3.2 The ILC distinction between injured and non-injured States

3.3 State Practice and Opinio Juris

As to ‘extensiveness’ and ‘representativeness’ requirements, although no precise threshold

4.2 The General Content of the Law on Countermeasures

4.2.1 Defining Countermeasures

4.2.2 Conditions and procedural limitations

4.3 Limits to Countermeasures

4.3.1 Absolute limits

4.3.1.1 Hierarchy of international law – peremptory norms

4.3.1.2 Limits based on fundamental human rights and humanitarian law

4.3.2.1 The Principle of Proportionality

4.3.2.2 The Relationship to Punitive Measures and Economic Coercion

4.3.3 Lex Specialis and Self-Contained Regimes

4.3.3.1 International Human Rights Outside the Scope of Fundamental Human

A more nuanced view would be to require limitations on non-fundamental rights to be in con-

4.4 Countermeasures Against States Other Than the Principally

To illustrate the point of this subsection, we begin with a semi-hypothetical example:

In a narrative where the international community is developing towards constitutionalism,

5.2 The Responsibility to Protect Introduced

In sum, R2P envisages multi-layered implementation involving participation by the UN’s

5.3 The Security Council and individual measures

5.3.2 The residual and complementary role of individual measures

State practice on countermeasures by non-injured States in response to serious violations of

Books and Articles

Alland, Denis, Countermeasures of General Interest, European Journal of International Law ,

Rosenberg, Sheri, Responsibility to Protect: A Framework for Prevention: Alex J. Bellamy et

ICISS 2001 International Commission on Intervention and State Sovereignty, Re-

SG 2009 Implementing the responsibility to protect, Report of the Secretary-

SG 2010 Early warning, assessment and the responsibility to protect, Report of

SG 2012 Responsibility to protect: timely and decisive response, Report of the

SG 2013 Responsibility to protect: State responsibility and prevention, Report of

Germany v. Denmark/Netherlands, International Court of Justice (North Sea Continental

Nicaragua v. United States of America (Jurisdiction), International Court of Justice, The

Hungary v. Slovakia (Gabcikovo-Nagymaros), International Court of Justice, The Hague, 25

Al-Adsani v. UK, European Court of Human Rights, Strasbourg, 21 November 2001

Fogarty v. UK, European Court of Human Rights, Strasbourg, 21 November 2001

McElhinney v. Ireland, European Court of Human Rights, Strasbourg, 21 November 2001

Kosovo Advisory Opinion Accordance with International Law of the Uni-

Wall Advisory Opinion Legal Consequences Construction of a Wall in

Reservations Advisory Opinion Reservations to the Convention on the Preven-

UNC/Charter/UN Charter Charter of the United Nations, San

VCLT Vienna Convention on the Law of Treaties, Vienna,

ICC Statute Rome Statute of the International Criminal Court,