The Emergence of Collective Countermeasures

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| Nov 1, 2023

Collective countermeasures

Editor’s Note: This post is based on a forthcoming article, “War Reparations: The Case for Countermeasures” in the Stanford Law Review, available here.

When Russia invaded Ukraine on February 24, 2022, it launched the largest land war in Europe since the Second World War. The war, which is now well into its second year, is a blatant and ongoing violation of the UN Charter’s prohibition on the use of force against the territorial integrity of a sovereign State. Russia has faced unprecedented sanctions in response. In the process, the war has renewed a long-simmering debate over what role third States—that is, States that have not themselves suffered any direct, material injuries—may play in vindicating the interests of injured victim States. Here, we offer an explanation for why these sanctions are lawful as “collective countermeasures,” an argument that could have implications not simply for Ukraine but for international responses to a range of international law violations, including cyber operations, human rights violations, or violations of environmental law obligations.

The Law of Countermeasures

Let us begin with the law of countermeasures. Countermeasures are actions taken by one State against another State in response to an internationally wrongful act with the aim of inducing the wrongdoing target State to restore its compliance with the law. For guidance, many look to the International Law Commission’s (ILC) Draft Articles on State Responsibility, which outline numerous conditions that apply to the invocation of countermeasures doctrine. For instance, any countermeasure must be proportional to the harm to which it responds. It must also be reversible in its effects (arts. 49-54).

A classic example of countermeasures took place in 1978, when French police surrounded a Pan Am airplane after it landed in Paris and refused to allow passengers to switch to a smaller plane, known in aviation as a “change in gauge.” The United States argued that France’s refusal to let passengers disembark violated a treaty between them, the Air Service Agreement of 1946. In response, the United States put in place a countermeasure. It banned French air carriers traveling from Paris from landing in Los Angeles if they stopped over in Montreal. Ultimately, an arbitral tribunal concluded that France was obligated to lift its prohibition on changes of gauge and that the United States had acted lawfully in imposing a countermeasure in the interim. The United States then ended its countermeasure. This case demonstrates the basic logic of countermeasures: when one State breaks the rules, the harmed State is allowed to break a rule in order to bring the first State back into compliance.

Not all countermeasures are in kind. Indeed, economic sanctions, one of the most potent examples of countermeasures, are often deployed in response to a range of illegal behaviors.

Today, it is widely agreed that Ukraine may deploy countermeasures against Russia, including by freezing Russian sovereign assets in response to Russia’s illegal war. But what about States other than Ukraine?

Theory and Practice of Collective Countermeasures

For years, many assumed that only a State that had suffered an injury as a result of another State’s wrongdoing could take countermeasure in response. However, the ILC was never entirely clear on this point. In fact, the ILC drafters explicitly refused either to authorize or to prohibit the invocation of countermeasures doctrine by non-injured States, a practice sometimes called “third-party” or “collective” countermeasures. The ILC did not simply remain silent on collective countermeasures; it incorporated in its commentary an explicit disclaimer that it did “not purport to regulate the taking of countermeasures by States other than the injured State” (commentary to Chapter II, para. 8).

In the shadow of that ambivalence, and in the absence of any express pronouncement on the matter by the International Court of Justice (ICJ), States and scholars have been left to contest the issue in practice and opinio juris. In other words, the elaboration and refinement of the rules of such countermeasures has proceeded as a matter of custom.

The war in Ukraine offers an unprecedented opportunity to reflect on developments since the Draft Articles’ adoption. It may also mark a watershed in the history of countermeasures doctrine. By legitimating collective countermeasures more clearly than ever before, the global response to Russia’s aggression could have sweeping implications for the enforcement of international law’s most fundamental rules in numerous contexts beyond the unlawful use of kinetic force.

The doctrine governing collective countermeasures could assume many forms. Some argue for the outright prohibition of such countermeasures, fearing this burgeoning practice might be misused to launder widening escalations of wrongful behavior. After all, countermeasures doctrine effectively allows each State to do a wrong in response to a wrong. Limiting lawful countermeasures to the State directly harmed thus has benefit of keeping the unlawful measures from spiraling out of control. Once every State can justify its own lawbreaking as a countermeasure, the system is almost destined to descend into lawlessness.

James Crawford advocated an approach that would allow collective countermeasures, but only in limited situations. He proposed that States be permitted to take collective countermeasures whenever requested by an injured State, or in response to “serious breaches of obligations to the international community as a whole” (p. 108-109). This approach, we think, is the right way to balance the desire, on the one hand, to use countermeasures to create incentives for law-breaking States to come into compliance against, on the other hand, concerns about excessive reliance on countermeasures by third parties.

The concept of obligations “owed to the international community as a whole,” known in ICJ jurisprudence as obligations erga omnes, offers a path toward collective countermeasures that hews closely to the heart of existing countermeasures doctrine. A violation of an obligation erga omnes harms each State’s legal interests; in other words, it inflicts a legal injury that is not dependent on that State having suffered direct, material injury as a result of the violation. In judgments from Barcelona Traction to The Gambia v. Myanmar, the ICJ has repeatedly affirmed the existence of obligations erga omnes (or erga omnes partes, in the latter case, where treaty norms, rather than custom, are at stake). In South West Africa, the ICJ went so far as to suggest that “States may have a legal interest in vindicating a principle of international law, even though they have, in the given case, suffered no material prejudice” (para. 44).

Confining collective countermeasures to erga omnes violations is not just an exercise in doctrinal coherence. A practical limiting principle is necessary in order to constrain third States from abusing countermeasures doctrine to pile on to—and needlessly escalate—narrowly bilateral disputes. (Of course, third States may aid a directly injured State even absent a violation erga omnes, as long as such aid entails only lawful measures.)

None of this would mean much if States had in fact endeavored to fashion different rules or conditions for collective countermeasures. However, decades of State practice suggest that prevailing doctrine incorporates, or at least does not contravene, this very same limitation. As scholar Martin Dawidowicz has painstakingly documented, States have repeatedly undertaken collective countermeasures in response to egregious violations of obligations erga omnes. These include not just powerful Western States vis-à-vis Russia but also the Arab League (responding to Assad’s atrocities in Syria) and the Group of 77 (sanctioning South Africa’s apartheid regime), among others.

That many developing States have supported collective countermeasures is no coincidence. Prohibiting collective countermeasures could perversely favor unilateralism, “depriv[ing] states,” as Monica Hakimi has argued, “of opportunities to engage together . . . to insist that these norms apply equally to all states,” particularly in light of the Security Council’s frequent inability to foster such engagement itself. Enabling countermeasures allows less powerful States to work together to counter the built-in advantage that more powerful States have in traditional bilateral relations.

Collective Countermeasures and Reparations for Ukraine

The Security Council’s paralysis has been on full display in the current Russia-Ukraine conflict, as veto-bearing Russia has hamstrung the Council’s ability to sanction or intervene to stop Russia’s unlawful aggression. This is perhaps the chief reason that the war has cast the collective countermeasures debate back onto the mainstage. The issue extends beyond aid for Ukraine in the midst of the war, touching also on the essential question of postwar reparations.

As we argue in a forthcoming Stanford Law Review article, the challenge of war reparations is ripe for the application of collective countermeasures. Already, widespread Western asset freezes must implicitly rely on countermeasures doctrine to avoid incurring State responsibility in connection with the abrogation of sovereign immunity. But Ukraine’s supporters could draw on collective countermeasures doctrine to go a step further, extending freezes beyond the conflict unless and until Russia makes good on its reparations obligation to Ukraine. That reparations obligation may be conceived as erga omnes (and thus susceptible to collective countermeasures within the framework outlined above) insofar as it is the “indispensable complement,” in the words of the Permanent Court of international Justice’s Factory at Chorzów decision, of Russia’s brazenly unlawful aggression.

That said, the reparations debate underscores the fact that collective countermeasures remain essentially countermeasures, with all of the attendant conditions and requirements. Thus, collective countermeasures doctrine cannot salvage the outright seizures and transfers advocated by some commentators, since any countermeasure, collective or otherwise, must be reversible and designed to induce (rather than force) the target State’s compliance. Similarly, even in extending asset freezes, States must be attentive to requirements like causation and proportionality. In particular, to avoid running afoul of the rule against double recovery, States acting collectively must sweep in no more than what Russia actually owes, and only for injuries of which Russia’s wrongful conduct was actually the legal cause.

The Future of Collective Countermeasures

With Russia’s invasion seemingly having crystallized collective countermeasures doctrine, future invocations of the doctrine are all but guaranteed. One notable context likely to see collective countermeasures has in fact played a crucial, if less prominent, role in shaping the doctrine in its current form: cyber.

Collective countermeasures was a major agenda item during the 2022 Oxford Process on International Law Protections in Cyberspace, where discussants largely agreed that contemporary international law might accept collective countermeasures in response to violations erga omnes, while excluding those taken absent such severe breaches. The issue is of particular interest to cyber scholars given that many damaging cyberattacks may not rise to a level serious enough to justify the invocation of (collective) self-defense as a circumstance precluding wrongfulness. That leaves small States with weaker cyber capabilities particularly vulnerable, unless they can avail themselves of support via collective countermeasures. Indeed, as observed during the Oxford Process, Estonia and New Zealand urge this very point, noting “asymmetries in states’ cyber capabilities” as a reason to allow collective countermeasures even absent a violation erga omnes.

The risks of “international vigilantism” seem too great to permit collective countermeasures in response to any cyber attack. But, consistent with the limitations described above, cyber operations that violate obligations erga omnes—such as the unlawful use of force or serious violations of international humanitarian or human rights law—could trigger collective countermeasures. (The same would be true of kinetic operations entailing the same kinds of violations.)

Other applications of collective countermeasures are also conceivable. States and the ICJ increasingly view many of the obligations enshrined in human rights conventions as having a collective character. The concomitant rise of erga omnes partes standing has reinvigorated efforts to enforce these treaties judicially. However, the ICJ does not have jurisdiction over every violation of human rights. Collective countermeasures could close the gap where an obligation erga omnes is at issue.

Certain breaches of international environmental law could also be ripe for enforcement by collective countermeasures. In a 2011 advisory opinion, the International Tribunal on the Law of the Sea characterized “the obligations relating to preservation of the environment of the high seas” as erga omnes. Dinah Shelton argues that the ICJ implicitly recognized environmental obligations erga omnes even earlier, in its Nuclear Weapons advisory opinion. That tribunal could be poised to identify such obligations more explicitly in a forthcoming advisory opinion on States’ climate change obligations, which the General Assembly requested earlier this year. Collective countermeasures may be especially useful in response to violations that threaten the integrity of the global commons—the marine environment, the atmosphere—since injuries may not always inure discretely or identifiably to specific States.

The list of erga omnes obligations has never been closed, and as mores and practical realities have evolved, so too has the set of obligations each member of the international community is deemed to owe to all others. Even a limited model of collective countermeasures enlarges States’ ability to encourage compliance with these obligations, to aid injured States, and vindicate shared legal interests.

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Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, Professor of International Law and Area Studies at the Yale University MacMillan Center, Professor of the Yale University Department of Political Science, and Director of the Yale Law School Center for Global Legal Challenges.

Maggie Mills is a third-year J.D. Candidate at Yale Law School and a Herbert Hansell Student Fellow of the Yale Law School Center for Global Legal Challenges.

Thomas Poston is a J.D. candidate at Yale Law School, a Herbert Hansell Student Fellow of the Yale Law School Center for Global Legal Challenges, and an Articles Editor for the Yale Journal of International Law.

 

 

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