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The Relationship between Third-party Countermeasures and the Security Council’s Chapter vii Powers: Enforcing Obligations erga omnes in International Law

In: Nordic Journal of International Law
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Amanda Bills Lund University, Sweden

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The article examines the relationship between third-party countermeasures and the Security Council’s powers to adopt measures under Chapter vii of the United Nations Charter in response to breaches of obligations erga omnes. It is shown that the resort to third-party countermeasures is neither precluded nor subject to limitations as a result of the relationship to the Security Council’s Chapter vii powers, even when both types of measures are adopted concurrently. Moreover, the fears that third-party countermeasures would interfere with or undermine the effective application of Security Council measures do not appear to have materialised in practice.

1 Introduction

On 17 August 2019, Sudan’s opposition coalition and the ruling Transitional Military Council signed a power-sharing agreement. 1 The agreement not only ended years of conflict, but is also relevant for the non-forcible sanctions regimes imposed against Sudan over the past two decades, including measures adopted at both the unilateral and institutional levels in the form of trade embargoes and asset freezes in response to serious violations of human rights and humanitarian law. The international response to the situation in Sudan illustrates the long-term and concurrent use of third-party countermeasures taken by individual states alongside Security Council measures adopted under Chapter vii of the United Nations (UN) Charter, each with its own scope and based on clearly distinct legal rationales. 2 While the relationship between these measures might seem frictionless in practice, it is part of a long-standing debate on the means of enforcement of multilateral obligations in international law and the relationship between measures at the unilateral and institutional levels.

In more general terms, the concept of third-party countermeasures 3 refers to the use of countermeasures by states other than the injured state in response to breaches of multilateral obligations (i.e. obligations erga omnes). 4 Third-party countermeasures have been envisaged as a means to operationalise the regime of obligations erga omnes, providing states with “a necessary middle ground between war and words” to enforce collective interests. 5 The main sources of controversy included the significant risks of abuse associated with the use of third-party countermeasures, and the uncertain relationship of third-party countermeasures to the Security Council’s mandate for the maintenance of international peace and security under the UN Charter. 6 These issues were the subjects of significant debate during the drafting of the Articles on the Responsibility of States for Internationally Wrongful Acts (arsiwa), in which Special Rapporteur James Crawford had made a proposal for a regime of third-party countermeasures (‘collective countermeasures’) to be formally included in the draft as a response to breaches of obligations erga omnes. 7 Following strong opposition in the International Law Commission (ilc) and by states in the Sixth Committee, a compromise solution was found in the adoption of a savings clause, which neither endorsed nor precluded the right to third-party countermeasures but left the matter to the further development of international law. 8

The permissibility of third-party countermeasures remains one of the most controversial topics in the law of state responsibility. 9 However, several recent studies have suggested that the now rather substantial body of state practice may indicate that the right to third-party countermeasures has emerged (or is at the very least in the process of emerging) as a rule under customary international law. 10 If the use of third-party countermeasures is permissible under general international law, the question remains how such measures relate to measures taken at the institutional level by the Security Council under Chapter vii of the UN Charter. Fundamentally, it is a question of whether the enforcement of the collective interests of the international community should take place within a unilateral or institutional framework. 11

Therefore, the aim of this article is to examine the use of third-party countermeasures in relation to Security Council measures adopted under Chapter vii of the UN Charter. As most of the previous studies on the topic of third-party countermeasures have focused on the permissibility of such measures in international law, this article adds to the existing literature by considering how third-party countermeasures relate to the Security Council’s Chapter vii powers to clarify the links between unilateral and institutional means of enforcing multilateral obligations in international law.

For these purposes, the article addresses the following two questions: (i) What is the relationship between third-party countermeasures and Security Council measures adopted under Chapter vii of the UN Charter?, and (ii) What are the implications of this relationship for the right of states to respond unilaterally to breaches of obligations erga omnes through resort to third-party countermeasures? This article does not aim to restate previous research on the permissibility in international law of third-party countermeasures, but builds on these studies to continue the discussion on the use of third-party countermeasures but in the broader and institutional context of the enforcement of obligations erga omnes. The mostly theoretical scope of this article means that state practice is used primarily to illustrate theory.

This article argues that the resort to third-party countermeasures is neither precluded nor subject to limitations as a result of the relationship to Security Council measures adopted under Chapter vii of the UN Charter, when both types of measures are taken concurrently. The relationship between the two is significantly less controversial than previously thought, and it appears as unlikely that third-party countermeasures would actually interfere or undermine the effective application of the Security Council’s Chapter vii measures. Moreover, if this were indeed the case, the Security Council would be competent to decide to limit the use of third-party countermeasures in any given situation. It is also likely that the legal conditions and procedural safeguards applicable to the use of countermeasures in general under the arsiwa would have the effect of limiting the use of third-party countermeasures. The relationship between third-party countermeasures and the Security Council’s Chapter vii measures might therefore best be described as parallel systems of law both providing for the legal consequences arising from the breach of an obligation erga omnes.

This article is structured in four parts. Following the introduction (section 1), there are two main sections (sections 2 and 3) and a final section with concluding remarks (section 4). Section 2 begins by providing an overview of obligations erga omnes in international law, emphasising the problem of enforcement and the role of the Security Council in this regard. The section then considers the use of third-party countermeasures as a means of enforcing obligations erga omnes at the unilateral level. Section 3 goes on to examine the relationship between the resort to third-party countermeasures and the Security Council’s Chapter vii measures on the basis of the arsiwa and the UN Charter, ending with a discussion of relevant practice to further illustrate this relationship. Finally, section 4 offers some concluding remarks.

2 Third-party Countermeasures in International Law

2.1 Obligations Erga Omnes and the Problem of Enforcement

The emergence of obligations erga omnes in international law, that is, obligations belonging to the category of multilateral obligations established for the protection of a collective interest and that are owed by states individually to the international community as a whole, 12 has led to debates on which actors are, or should be, entitled to enforce the collective interests of the international community. 13 The concept of obligations erga omnes was recognised in its modern iteration in the Barcelona Traction judgment, 14 in which the International Court of Justice (icj) in a now-famous passage drew, obiter dictum, 15 a distinction between bilateral obligations and the “obligations of States towards the international community of states”, that are “the concern of all States” and for whose protection “all States can be held to have a legal interest”. 16 The existence of obligations erga omnes, particularly in areas such as human rights and humanitarian law, is now widely accepted in international law, which reflects the conceptualisation of contemporary international law as serving not only the interests of states, but also the collective interests of the international community as a whole. 17 Despite the relative importance of the interests protected by obligations erga omnes, the icj has remained silent on the means of enforcement available to states with a legal interest in the protection of obligations of this nature. 18

The Security Council occupies an important role for the enforcement of the collective interests of the international community, not least because of its central role under the UN Charter. 19 Under Chapter vii of the UN Charter, the Security Council has broad powers to determine the existence of a threat to or breach of the peace, or an act of aggression (Article 39), and to adopt the measures necessary to maintain or restore international peace and security (Articles 40–42). 20 Thus, the Security Council is competent to respond to breaches of obligations erga omnes, where and if it determines that a situation falls within its mandate. 21 In practice, the Security Council has increasingly taken measures in response to breaches of obligations erga omnes by drawing on expansive interpretations of the notion of a threat to the peace under Article 39 of the UN Charter. 22 In its 1992 Summit Declaration, the Security Council recognised that “[t]he absence of war and military conflicts amongst States does not itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security”. 23 Similarly, in 2006, the Security Council adopted Resolution 1674, whereby it reaffirmed its responsibility to protect civilians from acts of ethnic cleansing, genocide, crimes against humanity and war crimes in armed conflict, as initially set out in the Responsibility to Protect framework. 24 These developments reflect an evolving understanding of the concept of international peace and security, in which serious breaches of international law may constitute threats to international peace and security. 25 In this regard, the Security Council’s exercise of powers under Chapter vii of the UN Charter can be described as providing a form of collective response to breaches of this nature. 26 However, political limitations (e.g. the exercise of the veto power) mean that the Security Council’s competences may not necessarily correspond to all serious breaches of international law. 27

It is precisely in the context of an ineffective Security Council that the use of third-party countermeasures has emerged as an alternative means of enforcing obligations erga omnes at the unilateral level providing states with a “necessary middle ground between war and words” 28 to react to serious breaches of international law. 29 There is currently no clearly recognised entitlement of states to resort to third-party countermeasures in response to the breaches of obligations erga omnes, and the issue remains controversial in the law of state responsibility. 30 One of the most significant sources of controversy is the uncertain relationship of third-party countermeasures to the Security Council’s exercise of powers under Chapter vii of the UN Charter. 31

The following sections will consider the concept of third-party countermeasures from the perspective of state responsibility, and the ilc’s contribution to this discussion throughout its codification of the law of state responsibility. This is followed by an examination of recent practice, with an emphasis on third-party countermeasures adopted in the same context as the Security Council’s Chapter vii measures.

2.2 Third-party Countermeasures in the Law of State Responsibility

2.2.1 Third-party Countermeasures in International Law

Third-party countermeasures have emerged in practice as a means for the enforcement of communitarian norms, i.e. obligations erga omnes and erga omnes partes. While there is no general definition for this concept, or even settled terminology, third-party countermeasures are generally understood as the use of countermeasures by non-injured states in response to breaches of obligations erga omnes or erga omnes partes. 32 The main sources of controversy of the use of third-party countermeasures are essentially two-fold: 33 the first relates to the potentially very large number of states with a right to respond in the event of a breach, which marks the departure from the traditional bilateral view of state responsibility, according to which the right to take countermeasures constitutes a form of self-help that arises on a bilateral basis between pairs of states. 34 If all states in the international community would be entitled to respond, this might create instability in treaty relations and the international legal order. 35 The second source of controversy relates more broadly to the institutional context in which third-party countermeasures are taken, namely, the uncertain relationship of such measures to the Security Council’s Chapter vii powers. 36

2.2.2 Countermeasures by States Other Than the Injured State in the arsiwa

In 2001, the ilc reserved its position on third-party countermeasures by adopting a savings clause in Article 54 arsiwa. The provision rather ambiguously provides that the chapter in the draft articles on countermeasures “does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached”. 37 The ilc Commentary to the arsiwa clarifies that at the time of adoption of the draft Articles, state practice was too limited and that there was no clearly recognised entitlement to third-party countermeasures. 38 Thus, Article 54 arsiwa neither endorses nor precludes the right to third-party countermeasures. 39

Article 54 arsiwa is a compromise solution intended to “reserve the position of all those who believed that the right to take countermeasures should be granted to States other than the injured State with regard to breaches of obligations established to preserve collective interests and those who believed that only injured States should have the right to take countermeasures”. 40 In 2000, Special Rapporteur James Crawford made a number of proposals aimed at resolving the ambiguities of the draft adopted on first reading, in particular the provisions that appeared to implicitly recognise a right to third-party countermeasures in response to obligations erga omnes or erga omnes partes. 41 Third states not directly injured by a breach of a multilateral obligation would have limited rights of invocation, secondary to that of the injured state, reflecting the current Articles 42 and 48 arsiwa. 42 The proposals included a regime of ‘collective countermeasures’ 43 for situations in which the directly injured state requested the assistance of a third state, or in the event of a breach of an obligation erga omnes or erga omnes partes with no directly injured state, such as breaches of human rights or humanitarian law affecting only the nationals of the wrongdoing state. 44 In the latter situation, Special Rapporteur Crawford considered that to disallow third-party countermeasures in response to “gross and well-attested breaches of obligations erga omnes” may “place further pressure on States to intervene in other, perhaps less desirable ways”, and that “[i]nternational law should offer to States with a legitimate interest in compliance with such obligations, some means of securing compliance which does not involve the use of force”. 45

The regime of third-party countermeasures was eventually rejected and replaced by the savings clause in the current Article 54 arsiwa. 46 While on one hand, several members of the ilc considered that the Article was a “necessary” provision to deal with serious breaches of obligations erga omnes, 47 on the other several members called for the provision to be deleted given the sparse state practice and dangers associated with formally recognising a regime of third-party countermeasures. 48 In the Sixth Committee, Mexico’s statement summarised most of the arguments against recognising a regime of third-party countermeasures, namely that “[t]he response to a serious violation of this type has already been clearly defined in the legal order established by the Charter itself… it would be unacceptable to introduce a mechanism that would change the collective security system enshrined in the Charter and allow for the taking of collective countermeasures, unilaterally decided, without intervention of the central organ of the international community”. 49 Moreover, the relationship between third-party countermeasures and the Security Council’s Chapter vii powers was considered unclear and not resolved by what later became Article 59, “since the [UN] Charter itself did not establish whether Security Council-mandated measures automatically entailed the cessation of countermeasures by States or whether the two types of measures could be implemented simultaneously without violating the principle of proportionality”. 50 Following these comments, the regime of third-party countermeasures was rejected and replaced by the savings clause in the current Article 54 arsiwa, leaving the matter to the further development of international law. 51

2.2.3 State Practice of Third-Party Countermeasures

The question of the permissibility of third-party countermeasures in international law must be determined on the basis of state practice, given the inconclusive position of the ilc since its adoption of the savings clause in Article 54 arsiwa. 52 Recent studies on this topic have found that state practice at the time of the adoption of the arsiwa was much more substantial than initially held by the ilc and by states in the Sixth Committee, and that the use of third-party countermeasures is increasingly common in response to breaches of obligations erga omnes. 53 State practice, although dominated by Western states, is diverse and widespread, with a large number of non-Western states from Eastern Europe, Eurasia, the Middle East, Asia and Africa either supporting or contributing to practice. 54 The more controversial issue is whether this practice is accompanied by the elements of opinio juris required to form a rule under customary international law. The existence of opinio juris can be inferred from the actual practice of states in the absence of specific indications to the contrary. 55 Although states typically do not justify their measures in legal terms as third-party countermeasures, there is little to indicate that states did not believe that their conduct could not be justified in legal terms. 56 Moreover, while the decisions of states to resort to third-party countermeasures are almost inevitably dictated to some extent by political considerations, this does not mean that the practice in question cannot be law-making, or that the existence of political considerations would automatically replaces any form of legal assessment. 57 Therefore, the now substantial body of state practice of third-party countermeasures is likely to be accompanied by the appropriate elements of opinio juris to form a rule under customary international law.

Third-party countermeasures have mainly been taken in response of relatively serious and well-attested breaches of international human rights or humanitarian law. 58 In most of these cases, the breaches have concerned peremptory norms of international law (norms jus cogens) clearly giving rise to obligations erga omnes, such as acts of apartheid, acts of genocide, denial of self-determination claims, or the practice of torture. Third-party countermeasures have also been adopted in response to violations of non-peremptory norms in the human rights field that give rise to less easily identifiable obligations erga omnes, such as the right to life, fair trial guarantees, freedom of expression, freedom from arbitrary detention, and similar obligations. 59

A recent and notable example of state practice is the unilateral response to the serious violations of human rights and humanitarian law in Myanmar, 60 which have (as of mid-September 2019) not yet been subject to any meaningful institutional action beyond verbal condemnation. 61 In August 2018, the US imposed unilateral sanctions in the form of asset freezes targeted against high-ranking military and police officials, as well as two military units, for their involvement in the ethnic cleansing in Rakhine State and other serious human rights abuses committed in Kachin and Shan States. 62 A few months later, on 21 December 2018, the EU imposed asset freezes targeting high-ranking officials of the Myanmar military for serious human rights violations committed against the Rohingya population, ethnic minority villagers and civilians, some “[amounting] to the gravest crimes under international law”. 63 The asset freezes were prima facie unlawful under international law and would require some form of justification, in the absence of which the measures can be understood as third-party countermeasures. 64 The response to the situation in Myanmar illustrates a feature that is common to most of the practice relating to third-party countermeasures, namely, that they are adopted in response to breaches of a relatively serious character that are widely recognised or well-attested by the international community. 65 Although ulterior political motives can never be completely excluded, the actual practice of third-party countermeasures seems to contradict the idea that the use of third-party countermeasures is automatically associated with a risk of abuse.

3 The Relationship between Third-party Countermeasures and the Security Council’s Chapter vii Powers

3.1 Third-party Countermeasures and the Security Council

State practice of third-party countermeasures now suggests that the right to third-party countermeasures is emerging as a rule of customary international law. 66 While the law of state responsibility and the Chapter vii of the UN Charter now both provide for the legal consequences arising from the breach of obligations erga omnes, the question of how such measures relate to one another remains unanswered. 67 It may be recalled from the previous chapter that the uncertainties of this relationship was one of the main reasons for the adoption of the savings clause in Article 54 arsiwa. 68 As the majority of third-party countermeasures are adopted in the absence of effective Security Council measures, there is at least some potential for overlap between these two types of measures. 69

In a number of instances, third-party countermeasures have been taken concurrently with the Security Council’s Chapter vii measures. 70 There are two main situations: either where the Security Council was actively seized with a matter but decided not to impose measures, or where third-party countermeasures were adopted concurrently with and/or exceeded the scope of measures taken by the Security Council measures. A few notable examples include the measures adopted against Argentina in response to its invasion of the Falkland Islands (Islas Malvinas) in 1982, in which the Security Council had become seized with the matter but decided not to impose measures under Chapter vii; against South Africa for its illegal regime of apartheid in 1985, in which the measures taken by the US exceeded the scope of those already adopted by the Security Council; against Sudan in 1997 by the US in response to serious violations of human rights and humanitarian law, exceeding the scope of Security Council measures; against the Former Republic of Yugoslavia in response to grave violations of human rights and humanitarian law in Kosovo in 1998, where the scope of measures taken by European Community member states exceeded the scope of the measures already imposed by the Security Council; against Libya in response to the serious violations of human rights and humanitarian law committed in the context of the country’s uprising, as well as later during the subsequent civil war in 2011; and, more recently, the extensive use of unilateral measures against Syria as a result of the on-going and serious violations of human rights and humanitarian law, in which the Security Council has so far only adopted limited measures in response to a chemical weapons attack that took place in 2013. 71 The perhaps most illustrative example is the measures taken against Sudan from 1997 until present, in which third-party countermeasures and Security Council measures were adopted concurrently with one another and maintained in force on a long-term basis. This example is considered in further detail below. 72

The Security Council is in principle competent to adopt legally binding decisions that limit the use of third-party countermeasures in situations where such measures would interfere with or undermine the Security Council’s powers under Chapter vii of the UN Charter. 73 Interestingly, the Security Council has yet to exercise this power in practice; in the majority of instances of state practice, third-party countermeasures have been adopted by states in the complete absence of intervention by the Security Council, even where both types of measures have been adopted concurrently. 74 In the absence of any active intervention by the Security Council, the question that arises is whether the arsiwa, the UN Charter or the relationship between the two instruments have a limiting effect on the right to resort to third-party countermeasures. It has been suggested that once the Security Council has decided on measures under Chapter vii of the UN Charter, states ‘transform into agents’ for the execution of these measures and must not take any action that would interfere with or otherwise undermine their effective application. 75 From this perspective, it is the triggering of Security Council action under Chapter vii of the UN Charter that would entail an obligation on states to end any third-party countermeasures already adopted, or at the very least to adapt so that they are not incompatible with Security Council measures. 76 It is not clear whether there is any actual support for the view that the use of third-party countermeasures is limited in situations where the Security Council is either actively seized with a situation or is taking measures under Chapter vii of the UN Charter. If there are no such limitations on third-party countermeasures, it must also be asked whether the emerging right to use such measures would interfere with or undermine the effective application of Security Council measures also in practice.

3.2 The UN Charter and the Law of State Responsibility

3.2.1 The Place of the UN Charter in the arsiwa

The relationship between the law of state responsibility and the UN Charter is expressed in Article 59 arsiwa, according to which the draft Articles are ‘without prejudice to the UN Charter’. Article 59 arsiwa provides that the draft Articles must be interpreted in conformity with and cannot affect the obligations arising under the UN Charter, with reference to the supremacy clause in Article 103 of the UN Charter. 77

Thus, Article 59 arsiwa expresses the relationship between the law of state responsibility and the UN Charter. 78 However, the provision is primarily intended to resolve conflicts between the two systems of law and does not as such subsume the law of state responsibility to the UN Charter. 79 In this regard, the supremacy clause in Article 103 of the UN Charter provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. The reference to “any other international agreement” is a reference to the Charter’s pre-eminence over conventional (treaty-based) obligations of international law. 80 The provision has been interpreted to also cover the derivative obligations of the UN Charter, in particular the mandatory decisions of the Security Council adopted in accordance with Chapter vii of the UN Charter, which are legally binding by virtue of Article 25. 81 However, it is not certain to what extent this hierarchy operates in relation to rights and obligations arising under customary international law, such as the law of state responsibility. 82 As Article 103 of the UN Charter does not exclude the possibility of later developments in international law, those in favour of a ‘constitutional’ vision of the UN Charter have argued that the provision must be interpreted to cover also customary international law. In the practice of the Security Council, there appears to be a general understanding that legally binding Security Council resolutions override conflicting obligations of customary international law, meaning that it would be inconsistent if those effects did not extend also to the Charter. 83

The question is how Article 59 arsiwa, read in combination with Article 103 of the UN Charter, applies to the use of third-party countermeasures. In principle, the rules of state responsibility should continue to apply to states in carrying out their obligations under the UN Charter, to the extent that there is no express derogation from them and where they do not affect obligations arising under the UN Charter. 84 Therefore, the priority established under Article 59 arsiwa does not rule out the operation of the law of state responsibility in situations where the Security Council is either actively seized with a situation or is taking measures under Chapter vii of the UN Charter. 85 This means that unless it can be established that there is an actual conflict between third-party countermeasures and obligations arising under the UN Charter, the relationship between the arsiwa and the UN Charter does not limit the use of third-party countermeasures in this situation.

3.2.2 Implied Limitations under the UN Charter

The possibility for overlapping enforcement competences between states taking third-party countermeasures and the Security Council’s Chapter vii powers raises the question of whether the terms, structure or general spirit of the UN Charter could limit the use of third-party countermeasures in situations where they might interfere with or undermine the Security Council’s powers under Chapter vii of the UN Charter. In this regard, there are two main arguments. The first is an analogy to the right of self-defence under Article 51 of the UN Charter, according to which states’ right to resort to third-party countermeasures would be extinguished once the Security Council has taken measures under Chapter vii of the UN Charter. 86 The second argument is based on an interpretation of the terms, structure and general spirit of the UN Charter, which would imply an obligation on states to limit their use of third-party countermeasures once the Security Council has decided on enforcement measures under Chapter vii of the UN Charter. 87

The analogy to self-defence is based on an interpretation of the relationship between states and the Security Council as expressed by Article 51 of the UN Charter. Under Article 51 of the UN Charter, states are entitled to use of force in self-defence to repel an armed attack by another state as an exception to the otherwise complete prohibition on the use of force in international law. The right to use force in self-defence is extinguished once the Security Council has decided on measures in response to the situation in accordance with Chapter vii of the UN Charter. 88 This particular aspect of the Security Council’s mandate reflects its monopoly on the use of force and its privileged position as having the primary responsibility for the maintenance of international peace and security. 89 By analogy to the limitations on states’ right to self-defence under Article 51 of the UN Charter, states’ right to resort to third-party countermeasures would similarly be extinguished if the Security Council decides on measures under Chapter vii of the UN Charter. 90 This point was raised by states in the Sixth Committee during debates on the arsiwa; Morocco suggested that “by analogy to the right of self-defence, a State should cease its own countermeasures once the Security Council [has] ordered collective economic sanctions”, presumably in reference to non-forcible measures adopted under Article 41 of the UN Charter. 91 It may be recalled that Article 59 arsiwa does not offer much in the way of clarity on the relationship between the law of state responsibility and the UN Charter, and that it is not clear whether the restrictions on the use of force could apply by analogy to the use of third-party countermeasures. 92 However, the right of states to use force in self-defence under Article 51 of the UN Charter is an exception in international law to the otherwise complete prohibition on the use of force. There is no corresponding prohibition or other form of limitation on the use of countermeasures once the Security Council has decided to impose Chapter vii measures. This suggests that the analogy to the right of self-defence is inappropriate. 93

It has also been suggested that the terms, structure and general spirit of the UN Charter imply an obligation on states to limit the use of countermeasures (or other measures) that may interfere with or undermine the Security Council’s Chapter vii measures. 94 More specifically, that

[the] recourse to the measures provided for in Chapter vii of the UN Charter was the first essential limitation on the unilateral use of countermeasures. If the Security Council has decided on sanctions, in accordance with Articles 41 and 42 of the UN Charter, it was hardly likely that States would take no notice of them and continue to carry out measures of their own, just as individual or collective self-defence was allowed in the event of aggression only, according to Article 51… until the Security Council has taken measures necessary to maintain international peace and security. If the Security Council had decided on measures within the meaning of Articles 41 and 42, States were no longer free to decide as they wished on countermeasures of their own. 95

The argument bears a clear resemblance to the ideas expressed in the analogy to the right of self-defence, as discussed above, and rests on the perception of the UN Charter as a central or even constitutional document for the international community. 96 From this perspective, the use of third-party countermeasures would risk undermining the central role and powers of the Security Council, disrupting the institutional balance of the UN Charter. 97 Thus, in order to preserve some form of coherence in the international legal order, as defined by the UN Charter, the use of third-party countermeasures must be excluded or at least subject to significant limitations in situations where the Security Council has decided on measures under Chapter vii of the UN Charter. However, the existence of limitations that are implied by the structure, terms or general spirit of the UN Charter must be treated with caution, so as to not allow “‘textual implication … to mask simple policy preferences”. 98 There is nothing in the UN Charter, directly or indirectly, to suggest that member states’ scope of action to resort to third-party countermeasures in response to breaches of obligations erga omnes would be limited in situations where the Security Council is also taking measures, or that the Security Council’s exercise of powers itself would act to displace the law of state responsibility. 99 Moreover, the now rather substantial body of state practice does not suggest that the triggering of Security Council measures under Chapter vii of the UN Charter would by itself end or modify the entitlement of states to resort to third-party countermeasures. 100

Although it may be more cohesive from the perspective of the UN Charter to limit the use of third-party countermeasures in situations where the Security Council is either actively seized or is taking measures under Chapter vii of the UN Charter, this does not find support under the terms, structure or general spirit of the UN Charter. The absence of limitations on third-party countermeasures raises the question whether such measures would also in practice interfere with or otherwise undermine the Security Council’s Chapter vii powers.

3.3 Do Third-party Countermeasures Interfere with or Undermine Security Council Measures in Practice?

The risks of third-party countermeasures interfering with or undermining the system of collective security established under Chapter vii the UN Charter was one of the main sources of controversy during the ilc’s drafting of the articles on the law of state responsibility. 101 In particular, one member of the ilc considered that allowing a regime of third-party countermeasures would “install a ‘do-it-yourself’ sanctions system that would threaten the security system based on Chapter vii of the Charter of the United Nations” and that might sooner or later extend also to the use of force. 102 Similarly, it was held that any such regime would inevitably “[extend] to questions which fell under Article 41 of the Charter of the United Nations, while circumventing the security system which the latter had set up to safeguard the rights of all States”. 103 However, neither the arsiwa nor the UN Charter seem to place any limitations on the use of third-party countermeasures in situations where the Security Council is either actively seized or is taking measures under Chapter vii of the UN Charter. 104 The question is therefore whether the use of third-party countermeasures would also in practice interfere with or otherwise undermine the effective application of Security Council measures adopted under Chapter vii of the UN Charter.

There are only few examples of actual conflict between the use of third-party countermeasures and Security Council measures adopted under Chapter vii of the UN Charter. 105 It suffices here to consider one of the most illustrative examples of state practice, that is, the countermeasures adopted against Sudan from 1997 and until present. The measures taken against Sudan form part of one of the few instances of practice in which third-party countermeasures were not only adopted concurrently with Security Council measures but also maintained in force alongside one another on a relatively long-term basis. 106

The Security Council first took action against Sudan under Chapter vii of the UN Charter in 1996, imposing in response to Sudan’s alleged support for international terrorism a series of travel bans and diplomatic sanctions. 107 The US, considering that the Security Council response was insufficient, adopted measures of its own against Sudan in 1997 in the form of a trade embargo and the freezing of assets belonging to senior members and officials of the Sudanese government. 108 The rationale for these measures was considerably broad and took into account Sudan’s “continued support for international terrorism, ongoing efforts to destabilise neighbouring governments, and the prevalence of human rights violations, including slavery and the denial of religious freedom”, as well as the multiple cross-border attacks in the region contrary to the principles of the non-use of force and non-intervention under the UN and Organization of African Unity (oau) Charters. 109 A few years prior, in 1994, the European Union (EU) had imposed measures of its own against Sudan in the form of an arms embargo in response to the serious violations of human rights and humanitarian law committed in the context of the country’s civil war. 110 Given that Sudan was not a party to either the General Agreement on Tariffs and Trade (gatt) or the World Trade Organization (wto) at the time, the trade restrictions are unlikely to constitute third-party countermeasures. 111 However, the asset freezes are in principle unlawful and require some form of justification under international law, and are therefore best understood as third-party countermeasures. 112

While the Security Council terminated its limited sanctions regime in 2001, 113 the US maintained its measures in force and subsequently broadened the rationale for these measures in 2004 in response to the alleged acts of genocide committed in the Darfur region. 114 The Security Council adopted a resolution in 2005 whereby it expressed “its utmost concern over the dire consequences of the prolonged conflict for the civilian population in the Darfur region as well as throughout Sudan, in particular the increase in the number of refugees and internally displaced persons”, while also condemning the “continued violations of human rights and international humanitarian law in the Darfur region”. In the same resolution, the Security Council adopted Chapter vii measures in the form of an arms embargo, travel bans and asset freezes, in addition to referring the situation to the icc. 115 The EU, which had initially imposed restrictive measures against Sudan in 1994, merged the new Security Council sanctions with its existing arms embargo. 116 Both the EU and US regimes have remained in force and operated in parallel with the Security Council’s 2005 sanctions against Sudan (both of which adopted prior to the 2005 resolution). 117 In response to recent developments in Sudan, involving the excessive use of force and violence against protesters during the course of a new wave of political protests in the country, 118 the US contemplated further or strengthened sanctions against Sudan. 119 However, a peace agreement was signed on 17 August 2019, ending years of conflict and potentially calling into question the continued use of sanctions against Sudan. 120

The chronology of measures adopted against Sudan indicates that unilateral measures, some of which can likely be understood as third-party countermeasures, were taken both prior and subsequent to Security Council measures under Chapter vii of the UN Charter. However, the response to the situation in Sudan illustrates a clear difference in the scope and rationale for the measures adopted at the unilateral and institutional levels. In the first resolution adopted by the Security Council in 1996, the measures were not intended to function as a collective response to the situation in Sudan, but rather as a more limited response to Sudan’s alleged support for international terrorism. By contrast, the 1997 measures adopted by the US (and, though unlikely to be third-party countermeasures, the EU trade embargo imposed in 1994) operated on a much broader rationale. 121 This is apparent from the broad references to serious violations of human rights and humanitarian law in the respective decisions to impose measures against Sudan. The new sanctions regime adopted by the Security Council in 2005 corresponded much more clearly to the unilateral measures already in place against Sudan with a broader rationale than those adopted in 1996.

The instances of state practice and the case study of Sudan suggest that there is no obvious incompatibility in practice between third-party countermeasures and the Security Council’s Chapter vii measures. In the case of Sudan, third-party countermeasures were maintained in force and operated in parallel to Security Council measures for a relatively long period of time without any conflict arising between them. It is noteworthy that the Security Council in this situation did not protest or take any decision to limit the use of third-party countermeasures, despite clear differences in scope and rationale of these measures. As such, the alleged incompatibility between third-party countermeasures and the Security Council’s Chapter vii measures has not materialised in any meaningful way in practice.

4 Conclusions

This article has examined the relationship between third-party countermeasures under the law of state responsibility and the Security Council’s enforcement powers under Chapter vii of the UN Charter, in response to breaches of obligations erga omnes. For these purposes, this article has considered the following questions: (i) What is the relationship between third-party countermeasures and Security Council measures adopted under Chapter vii of the UN Charter?, and (ii) what are the implications of this relationship for the right of states to respond unilaterally to breaches of obligations erga omnes through resort to third-party countermeasures?

The relationship between the use of third-party countermeasures and Security Council measures under Chapter vii of the UN Charter raises complex questions relating to the coexistence and coordination of two bodies of law, each serving a distinct purpose in the international legal order. Fundamentally, it is a question of whether the enforcement of the collective interests of the international community should take place at the individual or institutional level. The now substantial body of state practice on third-party countermeasures suggests that the right to third-party countermeasures is emerging as a rule under customary international law, and that the use of such measures is an increasingly common response to breaches of obligations erga omnes in the human rights and humanitarian fields in particular. The risks of abuse typically associated with the use of third-party countermeasures have so far not materialised in practice; instead, states have exercised considerable caution before resorting to third-party countermeasures, by responding primarily to relatively serious and well-attested breaches of obligations erga omnes (some of which also amounting to breaches of peremptory norms of international law). Third-party countermeasures have in most cases been adopted in the absence of effective Security Council measures under Chapter vii of the UN Charter, which highlights the relationship between these types of measures in practice. This state practice appears to be accompanied by the required opinio juris to form a rule under customary international law. If the right to third-party countermeasures is emerging as a rule under customary international law, then it is necessary to examine the use of such measures not only in isolation but also in the broader institutional context of responding to breaches of obligations erga omnes provided by the Security Council under Chapter vii of the UN Charter.

Currently, neither the arsiwa nor the UN Charter place any limitations on the use of third-party countermeasures in situations where they are taken concurrently with Security Council measures under Chapter vii of the UN Charter. In general, the provisions of the arsiwa are without prejudice to and must be interpreted in conformity with the UN Charter, under Article 59 arsiwa and with reference to the supremacy clause in Article 103 of the UN Charter. As the supremacy of the UN Charter applies only to obligations arising under conventional international law, it is uncertain how these provisions might apply to the use of third-party countermeasures, the right to which falls under customary international law. Those in favour of a more ‘constitutional’ view of international law have argued that the supremacy of the UN Charter must also cover rights and obligations arising under customary international law. However, Article 59 arsiwa does not subsume the law of state responsibility to the UN Charter, but instead serves to resolve potential conflicts between the two. Therefore, the rules of state responsibility must continue to apply in situations where the Security Council has become actively seized with or is taking measures under Chapter vii of the UN Charter, provided that there is no conflict between the two.

Although several commentators have applied the analogy to the right of self-defence under Article 51 of the UN Charter, according to which the right of states to take third-party countermeasures would be extinguished as soon as the Security Council has acted under Chapter vii, this seems entirely inappropriate given the lack of parallels between the framework governing the use of force and the right to take countermeasures under the law of state responsibility. There is nothing in the terms, structure or general spirit of the UN Charter that would imply any limitation on the use of third-party countermeasures in situations where the Security Council is also taking measures in response. This means that the triggering of Security Council measures under Chapter vii of the UN Charter does not in and by itself end any entitlement of states to third-party countermeasures. Instead, any limitations on the use of third-party countermeasures must be considered on a case-by-case basis under the legal conditions generally applicable to countermeasures under the law of state responsibility, or follow the Security Council’s decision to this effect.

State practice offers some affirmation that the relationship between third-party countermeasures and the Security Council’s Chapter vii measures is unlikely to be controversial or conflicting. The response to the situation in Sudan over the past two decades serves to illustrate the long-term and concurrent use of third-party countermeasures and Security Council Chapter vii measures. It appears that the two regimes operate in parallel without any obvious signs of incompatibility (in this context, it might be noted that it remains to be seen how the measures already in place against Sudan will continue to operate following recent developments in the country). The third-party countermeasures imposed against Sudan were adopted on the basis of a much broader rationale than the measures taken by the Security Council in response to the same situation. For example, the sanctions adopted by the US in 1997 were maintained in force throughout the Security Council’s first and second sanctions regimes (adopted in 1996 and 2005, respectively), and operated on a broad rationale involving serious violations of human rights and humanitarian law. While based on distinct legal rationales, the use of third-party countermeasures and Security Council measures share similar objectives, as was clearly the case with the measures adopted against Sudan. This may explain why the Security Council has yet to exercise its own powers to actively limit or exclude completely the use of third-party countermeasures in any instance of state practice.

Thus, this article has shown that the right to resort to third-party countermeasures (if such a right can be accepted as permissible under general international law) is neither precluded nor subject to limitations as a result of the relationship to Security Council’s Chapter vii powers, when both measures are adopted in response to the same breach. Instead, third-party countermeasures may operate concurrently with Security Council measures taken in accordance with Chapter vii of the UN Charter. In state practice, third-party countermeasures do not appear to be obviously incompatible with Security Council measures, or to interfere with or undermine their effective application. As such, the relationship between third-party countermeasures and the Security Council’s Chapter vii powers might best be described as two parallel systems of law, each providing for the legal consequences arising from the breach of an obligation erga omnes (insofar as the Security Council interprets this as a threat to the peace under Article 39 of the UN Charter). In conclusion, it appears that the relationship between the two is neither as uncertain nor as controversial as previously thought. 122

1

The Guardian, ‘Sudan Opposition and Military Sign Final Power-Sharing Accord’, 17 August 2019, <https://www.theguardian.com/world/2019/aug/17/sudan-opposition-group-and-military-sign-power-sharing-accord>, visited 17 September 2019.

2

See infra Section 3.3. For further references, see M. Dawidowicz, Third-Party Countermeasures in International Law (Cambridge University Press, Cambridge, 2017) pp. 255–262; and N. Jansen Calamita, ‘Sanctions, Countermeasures, and the Iranian Nuclear Issue’, 42:5 Vanderbilt Journal of Transnational Law (2009) pp. 1439–1441.

3

On the terminology for this legal category, see Dawidowicz, supra note 2, p. 34.

4

J. Crawford, State Responsibility: The General Part (Cambridge University Press, Cambridge, 2013) pp. 703–706.

5

UN General Assembly, Report of the Secretary General, In Larger Freedom: Towards Development, Security and Human Rights for All (A/59/2005), para. 109.

6

L.-A. Sicilianos, ‘La Codification des Contre-Mesures par la Commission de Droit International’, 38:1–2, Revue belge de droit international / Belgian Review of International Law (2005) pp. 484–490.

7

Crawford, supra note 4, p. 703; see also J. Crawford, Third Report on State Responsibility (A/CN.4/507/Add.4), para. 405.

8

ilc, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (ilc, arsiwa Commentary) (2001), Article 54, paras. 6–7.

9

See C.J. Tams, ‘Individual States as Guardians of Community Interests’, in U. Fastenrath and B. Simma (eds.), From Bilateralism to Community Interests: Essays in Honour of Bruno Simma (Oxford University Press, Oxford, 2011), p. 390 and 397, with further references.

10

Dawidowicz, supra note 2, pp. 282–284 and pp. 111–238. For a similar conclusion, see C.J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, Cambridge, 2005), and E. Katselli Proukaki, The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community (Routledge, London, 2010).

11

V. Gowlland-Debbas, ‘Responsibility and the United Nations Charter’, in J. Crawford, A. Pellet, and S. Olleson (eds.), The Law of International Responsibility (Oxford University Press, Oxford, 2010), p. 126.

12

Crawford, supra note 4, pp. 362–363.

13

Gowlland-Debbas, supra note 11.

14

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); Second Phase, (Barcelona Traction), 5 February 1970, icj, Judgment, <https://www.icj-cij.org/files/case-related/50/050-19700205-JUD-01-00-EN.pdf>, paras. 33–34.

15

On the statement’s character as obiter dictum, see Tams, supra note 10, pp. 167–173.

16

Barcelona Traction (Belgium v. Spain), supra note 14, para. 33. See further M. Ragazzi, The Concept of International Obligations Erga Omnes (Clarendon, Oxford, 1997) pp. 8–12.

17

B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des Cours de l’Académie de Droit International (1994) pp. 233–235, defining this type of interests (community interests), as “[a] consensus according to which respect for certain fundamental values is not to be left to the free disposition of states individual inter se, but is recognised and sanctioned by international law as a matter of concern to all States”. See further S. Villalpando, ’The Legal Dimension of the International Community: How Community Interests are Protected in International Law’, 21:2 European Journal of International Law (2010), p. 391.

18

So far, the icj has only once granted legal standing to a third state for a breach of a multilateral obligation, in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, icj, Judgment, <https://www.icj-cij.org/files/case-related/144/144-20120720-JUD-01-00-EN.pdf>, paras. 69–70, for the breach of an obligation erga omnes partes.

19

Simma, supra note 17, pp. 261–262.

20

V. Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the International Legal System’, in M. Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press, Oxford, 2001), p. 287.

21

A. De Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (Kluwer International Law, London, 1996) pp. 114–125.

22

Gowlland-Debbas, supra note 10, p. 128. On the increasing activities of the Security Council in the 1990s after the end of the Cold War, see V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law (Martinus Nijhoff, Dordrecht, 1990), p. 288. See also J. Frowein, ‘Implementation of Security Council Resolutions’, in V. Gowlland-Debbas (ed.), United Nations Sanctions and International Law (Kluwer Law International, The Hague, 2001), p. 253.

23

UN General Assembly, 2005 World Summit Outcome, Res. 60/1 (24 October 2005) (A/res/60/1); The Responsibility to Protect, Res. 63/308 (14 Sept 2009) (A/res/63/308). See also the resolution on Iraq, adopted in 1991, in which the Security Council declared that the human rights abuses committed against parts of the civilian population in the country would “lead to threats against international peace and security”, see UN Security Council Res. 688 (5 April 1991) (S/res/688). For further references, see F.A.M. Von Geusau, ‘Recent and Problematic: The Imposition of Sanctions by the UN Security Council’, in W.J.M Van Genugten and G.A. De Groot (eds.), United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights: A Multi-Disciplinary Approach (Intersentia Law Publishers, Antwerp, 1999) pp. 6–9.

24

UN Security Council Res. 1674 (28 April 2006) (S/res/1674).

25

Gowlland-Debbas, supra note 22, pp. 300–301.

26

See L. Boisson de Chazournes, ‘Les resolutions des organes des Nations Unies, et en particulier celles du Conseil du sécurité en tant que source du droit international humanitaire’, in L. Condorelli, A.-M. La Rosa and S. Scherrer (eds.), Les Nations Unies et le droit international humanitaire (Pedone, Paris, 1998) pp. 149–173.

27

Simma, supra note 17, pp. 246–248.

28

UN General Assembly, supra note 5.

29

See Crawford, supra note 4, p. 703.

30

Ibid., see also Tams, supra note 9.

31

Sicilianos, supra note 6, pp. 487–490.

32

Dawidowicz, supra note 2, p. 34.

33

Sicilianos, supra note 6.

34

See L.-A. Sicilianos, ‘The Classification of Obligations and the Multilateral Dimensions of the Relations of International Responsibility’, 13:5 European Journal of International Law (2002) pp. 1133–1134.

35

Crawford, supra note 4, pp. 685–686.

36

Sicilianos, supra note 6, pp. 487–490.

37

ilc arsiwa Commentary, supra note 8, Article 54, para. 1, and Article 48, paras. 1–2.

38

Ibid., Article 54, paras. 3–6.

39

Ibid., Article 54, paras. 6–7.

40

ilc, Yearbook of the ilc , 2001, Vol. I, 35 (A/CN.4/ser.A/2001), para. 48 (Mr. Tomka).

41

Crawford, supra note 4. For a comprehensive overview of the ilc’s drafting process with regard to countermeasures, see Sicilianos, supra note 6, pp. 447–500, and more specifically with regard to third-party countermeasures, Dawidowicz, supra note 2, pp. 72–110.

42

See the ilc, arsiwa Commentary, supra note 8, Article 48, para. 2.

43

ilc, Yearbook of the ilc , 2000, Vol. ii (A/CN.4/ser.A/2000/Add.1 (Part 2) Rev.1) paras. 70–72.

44

Crawford, supra note 4, p. 703.

45

Crawford, supra note 7.

46

J. Crawford, Fourth Report on State Responsibility (A/CN.4/517, 22), para. 74.

47

Ybk ilc, supra note 40, 40, para. 41 (Mr. Economides), and para. 49 (Mr. Pellet).

48

Ibid., 35, para. 2 (Mr. Brownlie).

49

Statement by Mexico, UN General Assembly, Documents of the Fifty-Third Session, Comments and Observations Received from Governments (A/CN.4/515/Add.1), paras. 9–10.

50

See the statement of Cameroon, UN General Assembly, Summary of Record of the 24th Meeting (A/C.6/55/SR.24), 11, para. 64 (Cameroon).

51

See further ilc, arsiwa Commentary, supra note 8.

52

ilc, arsiwa Commentary, supra note 8; Crawford, supra note 46, paras. 71–74; M. Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and their Relationship to the UN Security Council’, 77:1 British Yearbook of International Law (2006), p. 409.

53

See Dawidowicz, supra note 2, pp. 282–284 and 383–385, with further references.

54

Dawidowicz, supra note 2, p. 283.

55

See Dissenting Opinion of Judge Tanaka in the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 20 February 1969, icj, Judgment, para. 176, <https://www.icj-cij.org/files/case-related/51/051-19690220-JUD-01-00-EN.pdf>.

56

Tams, supra note 10, pp. 238–239, for further references.

57

Dawidowicz, supra note 2, p. 283; Tams, supra note 10, p. 239.

58

Dawidowicz, supra note 52, p. 418.

59

Tams, supra note 10, pp. 232–233.

60

See UN Human Rights Council, Report of the Independent International Fact-Finding on Myanmar (A/hrc/39/64) (12 September 2018), and UN Office of the High Commissioner for Human Rights, Opening Statement by Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights at the 26th session of the Human Rights Council, Geneva (11 September 2017), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22041&LangID=E>, describing the situation as a “textbook example of ethnic cleansing”.

61

See, for example, UN General Assembly Res. 72/248 (23 January 2018) (A/res/72/248).

62

US Department of the Treasury, Treasury Sanctions Commanders and Units of the Burmese Security Forces for Serious Human Rights Abuses (17 August 2018), <https://home.treasury.gov/news/press-releases/sm460>.

63

Council of the European Union, Council Decision (cfsp) 2018/2054 (2018); Council Decision (cfsp) 2019/678 (2019); and Declaration by the High Representative on Behalf of the EU on the Alignment of Certain Countries with the Council Decision concerning Restrictive Measures against Myanmar/Burma (2 February 2019).

64

E.J. Criddle, ‘Humanitarian Financial Intervention’, 24:2 European Journal of International Law (2013) pp. 590–593.

65

Cf. Institut de Droit International, Cinquième Commission: Les Obligations et les Droits Erga Omnes en Droit International / Fifth Commission: Obligations and Rights Erga Omnes in International Law (2005), <http://www.idiiil.org/app/uploads/2017/06/2005_kra_01_en.pdf>, requiring that a breach must be “widely acknowledged” before a state may resort to third-party countermeasures.

66

See supra Section 2.2.3.

67

See Dawidowicz, supra note 2, pp. 255–256; Gowlland-Debbas, supra note 10, pp. 122 and 124; L-A Sicilianos, ‘Countermeasures in Response to Grave Violations of Obligations Owed to the International Community’, in J. Crawford, A. Pellet and S. Olleson (eds.), The Law of International Responsibility (Oxford University Press, Oxford, 2010) pp. 1140–1142; E. Palchetti, ‘Consequences for Third States as a Result of an Unlawful Use of Force’, in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, Oxford, 2014) pp. 1234–1236; and Crawford, supra note 4, p. 709.

68

See supra Section 2.2.2.

69

Dawidowicz, supra note 52, pp. 417–418.

70

Dawidowicz, supra note 2; and Jansen Calamita, supra note 2.

71

Jansen Calamita, supra note 2.

72

See the discussion infra in Section 3.3.

73

Dawidowicz, supra note 2, p. 262. See also Simma, supra note 17, pp. 248–249, noting that neither the arsiwa nor the UN Charter supports any formal role of the Security Council in this regard, concluding that the enforcement function of the UN Charter in providing a collective response to breaches of international law has not been matched by the development of institutional safeguards against the abuse of third-party countermeasures.

74

Tams, supra note 10, p. 236.

75

Sicilianos, supra note 67, pp. 1138–1142.

76

See Crawford, supra note 4, p. 709.

77

ilc, arsiwa Commentary, supra note 8, Article 59, paras. 1–2.

78

Gowlland-Debbas, supra note 10, pp. 115–117 and 120–122, with further references.

79

ilc, arsiwa Commentary, supra note 8, Article 59, paras. 1–2.

80

B. Simma, The Charter of the United Nations: A Commentary, Vols. 1–2, 3rd ed. (Oxford University Press, Oxford, 2012), Article 103, paras. 1–3 and 66–69.

81

Ibid., Article 103, para. 2.

82

N.D. White and A. Abass, ‘Countermeasures and Sanctions’, in M. Evans (ed.), International Law (Oxford University Press, Oxford, 2003), p. 518.

83

ilc, Report of the Study Group of the International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (A/CN.4/L.682), paras. 344–345.

84

Gowlland-Debbas, supra note 10, pp. 120–122, and p. 138.

85

Jansen Calamita, supra note 2, pp. 1437–1441.

86

Yearbook of the ilc, Summary Records of the Meetings of the Forty-Fourth Session (A.CN.4/ser.A/1992) (Mr. Pellet), in which Mr. Pellet stated that “[i]f the Security Council had decided on measures within the meaning of Articles 42 and 42, States were no longer free to decide as they wished on countermeasures of their own”. This argument is echoed in J. Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public International Law’, 248 Recueil des Cours de l’Académie de Droit International (1994) pp. 345–437, at pp. 370–371, and in D. Acevedo, ‘The US Measures Against Argentina Resulting from the Malvinas Conflict’, 78 American Journal of International Law (1984) pp. 323 et seq., at pp. 343–344.

87

See Crawford, supra note 4, p. 709.

88

On the scope of self-defence more generally, see C. Gray, International Law and the Use of Force, 4th ed. (Oxford University Press, Oxford, 2018) pp. 134–170.

89

Ibid., pp. 132–134.

90

Frowein, supra note 86.

91

See UN General Assembly, supra note 49, para. 39 (Morocco).

92

See supra Section 3.2.1.

93

Jansen Calamita, supra note 2, pp. 1437–1441.

94

See, for example, Crawford, supra note 4, p. 709; Sicilianos, supra note 67, p. 1142.

95

Ybk ilc, supra note 86 (Mr. Pellet).

96

See, for example, P.E. Dupont, ‘Countermeasures and Collective Security: The Case of the EU Sanctions against Iran’, 17 Journal of Conflict and Security Law (2012) p. 333.

97

Sicilianos, supra note 67, p. 1142.

98

Jansen Calamita, supra note 2.

99

Ibid., p. 1439, with further references.

100

Dawidowicz, supra note 52, pp. 417–418; Tams, supra note 10, p. 236, who describes this as an “astonishing” feature of state practice.

101

Sicilianos, supra note 6, pp. 487–490.

102

Ybk ilc, supra note 40, 35, paras. 2 and 5 (Mr. Brownlie).

103

Ibid., 54, para. 3 (Mr. Elaraby).

104

See supra Sections 3.2.1 and 3.2.2.

105

Dawidowicz, supra note 2, p. 257, considering that state practice “provides only a handful of genuine examples of potential conflict”.

106

Ibid., pp. 258–259.

107

UN Security Council Res. 1054 (26 April 1996) (S/res/1054). The Security Council later broadened its sanctions to include an aviation embargo, see Res. 1070 (16 August 2017) (S/res/1070).

108

The United States, Executive Order 13067: Blocking Sudanese Government Property and Prohibiting Transactions with Sudan (3 November 1997).

109

Ibid.

110

Council of the European Union, Council Decision (cfsp), 94/165/cfsp (1994).

111

As of September 2019, Sudan is in the process of acceding to the wto. See further Accessions: Sudan,wto, <https://www.wto.org/english/thewto_e/acc_e/a1_soudan_e.htm#status>, visited on 5 September 2019.

112

Criddle, supra note 64.

113

UN Security Council Res. 1372 (28 September 2001) (S/res/1372).

114

UN General Assembly, Statement of President Bush, the United States, before the General Assembly at its 59th Session (A/59/PV.3) (21 September 2004).

115

UN Security Council Res. 1591 (29 March 2005) (S/res/1591).

116

Council of the European Union, Common Position 2005/411/cfsp (2004), and Council Regulation (EC) No. 838/2005 (2005).

117

Dawidowicz, supra note 2, p. 254. Note, however, that the US lifted three significant components of its sanctions regime against Sudan in January 2017, see the United States, Executive Order 13412: Blocking Property of and Prohibiting Transactions with the Government of Sudan (13 October 2006). In 2015, the Security Council adopted an additional resolution to regulate separately the regime of sanctions for South Sudan following its independence from Sudan in 2011, see UN Security Council Res. 2206 (3 March 2015) (S/res/2206).

118

For an overview of the developments in 2018–2019, and for further references, see Human Rights Watch, Sudan: Ensuring a Credible Response by the UN Human Rights Council at its 42nd Session, cso’s Joint Letter to the Human Rights Council (2 September 2019), <https://www.hrw.org/news/2019/09/03/sudan-ensuring-credible-response-un-human-rights-council-its-42nd-session>, visited on 5 September 2019.

119

See P. Zengerle, ‘U.S. to Consider Sanctions in Case of More Sudan Violence’, Reuters, 25 June 2019, <https://www.reuters.com/article/us-sudan-usa/us-to-consider-sanctions-in-case-of-more-sudan-violence-idUSKCN1TQ2TH>, visited 5 September 2019.

120

The Guardian, supra note 1.

121

Dawidowicz, supra note 2, pp. 258–259.

122

This article is based on the author’s master’s thesis, carried out at Lund University in 2019 under the supervision of Dr. Britta Sjöstedt. The author would like to thank Valentin Jeutner, Kristian Cardell and Shadi Nilsson for valuable comments and remarks on an earlier draft of this article.

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