One of the most important developments in international law in the last 50 years is the recognition and acknowledgement of multilateralism. This is not the multilateralism of participation – in this sense, and with varying degrees, this has been a feature of international law for many centuries. This is, rather, multilateralism as a legal construct, as a legal structure and as a legal-philosophical ideal. It is no longer doubted that collective goods are recognised and protected by international law. As with most of international law, however, the legal accommodation of multilateralism and, thereby, the protection of these collective goods has occurred in fits and starts. The twin concepts of peremptory rules of international law and of erga omnes obligations articulate the concern for collective interests: the former ensures their primacy, the latter their protection. These concepts are firmly entrenched in the international legal order. Some of their legal consequences are accepted, as evidenced by the inclusion (not without some opposition) of relevant provisions in the 1969 Vienna Convention on the Law of Treaties and in the Articles on the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) noted by the United Nations General Assembly in 2001.
The most controversial aspect of this legal accommodation has been the enforcement of the rules established for the protection of collective goods, particularly the availability of countermeasures against states that infringe those norms by states not directly affected by the breach. In short, can states take so-called collective, or solidarity, or third-party countermeasures (hereafter “third-party countermeasures”)? Several works have been devoted to the analysis of this topic. Martin Dawidowicz's book, Third-Party Countermeasures in International Law, is the latest and the first to provide a complete and comprehensive consideration of third-party countermeasures in international law. His aim is straightforward: to assess whether third-party countermeasures are recognised in customary international law. The argumentation is, nevertheless, nuanced and considers four main themes: the development of the concept of third-party countermeasures, its customary law recognition, the regime regulating these measures, and policy and normative arguments for and against this concept.
The book begins (chs. 2 and 3) by tracing the development of third-party countermeasures in the case law of the International Court of Justice (“ICJ”) and the work of the International Law Commission (“ILC”) on state responsibility. The ICJ, the author notes, sparked this development by recognising the concept of erga omnes obligations in Barcelona Traction, Light and Power Company, Limited, Judgment (1970) ICJ Rep. 3, paras. 34–35, Barcelona Traction. The ILC, however, did the most to further develop this notion even if, ultimately, it did not endorse this concept in the ARSIWA. Despite a bold proposal to recognise third-party countermeasures to accommodate collective interests in the system of state responsibility, the ILC was unable to agree on the matter since the relevant practice remained “limited and rather embryonic”. A compromise was adopted: the savings clause in Article 54. Four of the ILC's Special Rapporteurs on state responsibility considered the topic of countermeasures (including third-party countermeasures), and their work was discussed both within the ILC and the Sixth Committee of the UN General Assembly. The book incorporates all this information into a chronological and comprehensive review, providing a substantively informative and useful guide to the sources.
The bulk of the book is devoted to a review of the practice in the field, covering 21 instances of the use of unilateral coercive measures by third states from 1960 to 2016, with a view to establishing whether customary international law permits third-party countermeasures (chs. 4 and 5). The analysis is rigorous and clear. In each instance, the author identifies the alleged violation of a communitarian norm and provides references to institutional bodies either declaring or confirming the alleged violation. He then reviews the measures adopted by the states involved, considers whether such measures prima facie violated an obligation owed to the target state and, if so, whether there was any potential justification for such conduct under customary law or under treaty law. In the absence of any justification, the author concludes that the practice is evidence of the concept of third-party countermeasures. According to the author, the practice is general and consistent as is required to evidence a rule of customary law. In terms of its generality, the practice is widespread and representative since both developed and developing states have taken part in the adoption of unilateral coercive measures or have endorsed those. At times such support is only indirect: Latin-American states, for example, have never taken such measures, though Argentina, Chile and Costa Rica “have on occasion expressed some support for the concept” (p. 243). As for the requirement of consistency, the practice shows some irregularity. For example, there have been protests against the adoption of these measures, including by the Non-Aligned Movement; states have occasionally taken contradictory positions. Likewise, not every violation of a communitarian norm has triggered unilateral coercive measures by other states. But, as Dawidowicz explains, perfect consistency is impossible and not required. The real question is whether the practice is “fatally riddled with contradictions” (p. 248). On balance, the author concludes, it is not.
The main obstacle to this analysis is the almost complete absence of references to the concept of third-party countermeasures in states’ legal justifications for these measures: that is, evidence of states’ opinio juris is lacking. But the author does not see this as an insurmountable obstacle: given the regularity and consistency of the practice, and given that the rule in question is permissive (rather than prohibitory or mandatory), the opinio juris can be inferred from the practice itself. As a litmus test, the author queries whether there is evidence of an “opinio non juris” in the practice. In his view, there is not. Since third-party countermeasures are the only way to explain legally the practice (as states were visibly reacting against violations of communitarian norms), he concludes that the opinio juris must be presumed to exist. Third-party countermeasures are, therefore, permitted under customary international law. This explanation is unlikely to satisfy everyone; but then most analyses of customary law will be subject to varied methodological critiques.
The book then considers the regime applicable to these measures (ch. 6). This consists in the adaptation of the ARSIWA regime for bilateral countermeasures to the third-party countermeasures by reference to this surveyed practice. The salient features of the “modified” regime of third-party countermeasures include these: third-party countermeasures can only be adopted where a “serious breach” of a rule protecting communitarian interests occurs; there is no need for a request by the injured state, though its waiver of the claim can affect other states’ ability to claim reparation (but not cessation); assessments of the proportionality of third-party countermeasures must consider all measures adopted by other states as well as the potential measures adopted by the UN Security Council; finally, to ensure proportionality, some coordination will be necessary among states, though it is doubtful that this amounts to a legal requirement as yet. The analysis is rich in detail, and will be enlightening for all those interested in countermeasures in both their bilateral and third-party forms.
The author considers the normative and policy arguments on the concept of third-party countermeasures at points throughout the text rather than in one place. One of the most important criticisms of the concept of third-party countermeasures is that a self-help mechanism embedded in a decentralised system is liable to abuse. Arguably, third-party countermeasures (like countermeasures more generally) can be (and have been) used as political tools by the powerful to oppress, and bend the will of, the weak. The review of practice in the book bears this out to some extent: predominantly, these measures have been used against what may be termed “weak” states, by more powerful ones. Overall, 19 states have been targeted by third-party countermeasures. Of these, 13 were in Latin-America (one), Asia (one) or Africa (11) and six were in Europe. One would hesitate to call those six European states “powerful”: aside from Russia (and the Soviet Union, as it then was), third-party countermeasures were taken against Belarus, the Federal Republic of Yugoslavia, Greece and Poland. Moreover, when third-party countermeasures were adopted against European states, the states taking the measures were predominantly European or what the author labels (without definition) “Western” states (including the US). In contrast, where the measures were adopted against non-European states, in 11 out of 13 cases the measures came from “Western” states (six times only from these states) and in five cases from African or so-called “developing” states (two times only from these states).
Dawidowicz responds to this criticism in two steps. First, he says, there is no evidence of abuse in the practice of countermeasures. If this were so, the numbers above do signal a worrying trend and potential for abuse – especially when one considers that these measures were adopted when the permissibility of third-party countermeasures was still uncertain. Second, third-party countermeasures are permissible, not mandatory and, for this reason, they are not always taken where a communitarian norm has been seriously breached. Moreover, he continues, states take third-party countermeasures not just for legal reasons, but rather for combinations of legal and political reasons which are hard to disentangle. As a result, not much should be read into the failure to resort to such measures in situations involving serious violations of communitarian norms even when these violations come from traditionally “powerful” states – for example, one may think of the invasion of Iraq by a coalition of the willing led by the US and the UK in 2003.
Surely this is precisely the point of the criticism. It is because they are permissible and because they are often taken for interrelated legal and political ends that such measures are dangerous, that they are prone to abuse by the powerful against the weak. Powerful states may hide behind the veil of permissibility to justify not taking third-party countermeasures against one another, just as they can hide behind the veil of legitimate legal ends to justify unilateral action against weaker states for political gains. It is perhaps unfair to expect the author to resolve this normative quandary, given that the aim of the book is avowedly positivist. But it seems important that this central difficulty should colour, weigh in and restrain, our evaluations and assessment of the practice and opinio juris of third-party countermeasures. As the author points out, these measures have been highly ineffective in achieving their only legitimate aim: to induce compliance with international law. Of course, the author is right to note that, even if they fail to induce compliance, coercive measures are still important as they send a “powerful signal” that serious illegality will not be tolerated (p. 282). But this answer is not enough to explain why such measures ought to infringe the rights of the target state. Surely third-party acts of retorsion could equally send such a signal, as the recent reaction of the UK, the US and EU states to the Russian use of chemical weapons in Salisbury has shown.
The book advances the knowledge and understanding of its subject with its thorough review of practice. What is needed now is a robust normative justification, and perhaps some creative thinking and ambitious proposals for the development of collective institutional means to redress harm to communitarian norms. This is a topic that ought to be addressed with great caution because, alongside the promise of enforcement of international law, it contains within it the seed of anarchy. Just as it is difficult to accept that two wrongs make a right, it is even harder to see how many wrongs can ever make a right.
