Introduction
In the previous couple of years, the time period ‘collective countermeasures’ has at instances been used to refer to 2 conceptually distinct claims. It has continued for use to check with the concept that a State aside from an injured State, within the sense of Article 48 of the ILC Articles on State Duty, could take countermeasures towards a State that has violated an erga omnes obligation. However as we word in our current article in AJIL on collaboration within the taking of countermeasures, it has additionally been used or taken to check with a somewhat completely different scenario: the concept that a 3rd State could take a countermeasure towards a wrongdoing State on the request and on behalf of an injured State, the place the prior breach impacts an obligation that’s owed bilaterally between the injured and wrongdoing State.
Two examples could illustrate the distinction between the 2 eventualities. An illustration of the primary – and extra acquainted – scenario is Russia’s aggression towards Ukraine. The prohibition of pressure entails an erga omnes obligation, such that each one States within the worldwide group have an curiosity in compliance with this obligation in accordance with Article 48 of the ILC Articles. On this situation, all different States of the worldwide group can be entitled to take ‘collective countermeasures’ towards Russia. Whereas there stays uncertainty as to the legality of such motion in worldwide regulation, the situation and its parameters are nicely understood. An illustration of the second would be the following hypothetical situation. Russia engages in a cyber operation towards Estonia, in violation of Estonia’s territorial sovereignty. The duty to respect territorial sovereignty isn’t usually understood as one owed erga omnes, and would as such be owed bilaterally between Estonia and Russia. On some views, which we’ll focus on on this put up, Estonia can be permitted to ask the USA, a State which is neither injured by the breach nor has a authorized curiosity in compliance with the related obligation, to take a countermeasure towards Russia on its behalf (that’s, a measure that will violate the US’s personal obligations in the direction of Russia).
The concept that a State that’s injured by a breach of worldwide regulation could request one other (third) State to take countermeasures on its behalf towards the wrongdoing State is a novel proposition. It’s one which has arisen, particularly, within the cyber context in the previous couple of years, and is probably finest articulated in Costa Rica’s assertion on the applying of worldwide regulation in cyber-space in 2023:
countermeasures could also be taken by the injured State, i.e., the State particularly affected by the breach, in addition to third States in response to violations of obligations of an erga omnes nature or upon request by the injured State. (emphasis added).
Whereas the proposal has arisen within the specialised context of cyber-space, it’s not tough to think about different contexts by which this risk could also be related: a State that’s injured by the breach of, for instance, a treaty on cooperation in legal issues would possibly request an ally to freeze belongings of the wrongdoing State on its behalf.
To this point, the views of States on the matter have remained restricted and combined. France rejects all ‘collective countermeasures’, so presumably it could deny the potential of proxy countermeasures as nicely. Austria, in the newest place paper on worldwide regulation in cyber-space, additionally appears to disclaim this risk – if solely by implication. By each limiting its views on ‘collective countermeasures’ to the erga omnes context, and asserting that ‘[c]yber actions would not often breach such an obligation’, Austria appears to be excluding the likelihood that third States could take countermeasures on the request and on behalf of States injured by malicious cyber-operations.
On this put up, we handle this novel situation. We word, first, that its novelty is usually obscured by the final use of the time period collective countermeasures to seize the acquainted situation of a State aside from the injured State within the sense of Article 48 ASR taking countermeasures in addition to this novel situation arising in relation to a bilateral obligation. As a substitute, we suggest using the time period ‘proxy countermeasures’ to seize this risk. Second, we argue that proxy countermeasures usually are not at present permitted by worldwide regulation. And third, to the extent that States want to increase the conditions by which they might collaborate in responding to wrongdoing of different States, we elevate some various prospects.
A Novel State of affairs – Proxy Countermeasures and Present Terminology
The chance that an injured State could name upon a 3rd State to take countermeasures towards its wrongdoer (outdoors the erga omnes context) has solely not often been entertained within the literature. It was raised by Theodore Woolsey within the late Eighties (p 20), after which once more by Ellery Stowell within the Twenties (pp 46-47). In more moderen instances, the likelihood was most clearly articulated and defended by Elisabeth Zoller within the late Eighties, on coverage grounds (pp 114-115). Michael Akehurst’s 1970 article on Reprisals by Third States, basically advocated for countermeasures in conditions akin to the violation of erga omnes obligations. The ILC doesn’t seem to have contemplated this risk in any respect throughout its work on State accountability and – as we’ll say shortly – there isn’t a State observe in assist of it both.
The unconventional novelty of this declare is obscured by way of the time period ‘collective countermeasures’, which has grow to be prevalent within the cyber-literature to check with a variety of conditions of collaboration within the taking of countermeasures (eg, Kosseff and Schmitt & Watts, Haataja additionally noting the novelty of the declare). This time period is getting used to refer each to conditions the place the duty breached is an obligation erga omnes – and thus there’s a State aside from the injured State within the sense of Article 48 ASR – in addition to the scenario underneath dialogue on this piece in relation to a bilateral obligation. Furthermore, the authorized and coverage implications of the 2 conditions are fairly completely different. It is because of this that we expect a unique label could also be wanted to check with this extra novel declare referring to a bilateral obligation – we suggest to make use of the time period ‘proxy countermeasures’. (On the identical time, within the pursuits of readability, we undertake the time period ‘countermeasures within the normal curiosity’ or ‘normal curiosity countermeasures’ to check with countermeasures by States aside from an injured State in response to violations of erga omnes obligations.)
The Lack of Foundation for Proxy Countermeasures
In our view, proxy countermeasures usually are not at present permitted in worldwide regulation. Except for sure authorized positions of States on the applying of worldwide regulation to cyber-space (the worth and weight of which as State observe or opinio juris could also be tough to evaluate), the concept of proxy countermeasures isn’t supported by observe or by the work of the ILC. It additionally can’t be sustained by analogy to notions of collective self-defence or cooperation with non-public entities within the taking of countermeasures, or by different authorized doctrines presently acknowledged in worldwide regulation.
First, there isn’t a foundation within the observe of States for this declare. In our article, we evaluation two believable situations of observe: the primary referring to the Tehran Hostages Disaster and the second regarding looted Albanian gold and the enforcement of a judgment of the ICJ. We recommend that these situations don’t assist a declare to proxy countermeasures: to the extent that States not injured by the breach took, or mentioned, any measures inconsistent with the rights of the wrongdoing State, they did so on the premise of the collective character of the pursuits concerned.
Second, the ILC did focus on the concept of countermeasures being taken ‘on the request and behalf of’ an injured State (see e.g. right here), and the concept stays within the Commentary to Article 54 ASR. Nevertheless, with out exception, this dialogue befell inside the framework of erga omnes (partes) obligations and, particularly, within the context of setting out guidelines regulating countermeasures taken by States aside from an injured State (within the sense of Article 48 ASR). At no level did the ILC take into account {that a} State injured by the breach of a bilateral obligation owed to it instantly may request a 3rd State to take a countermeasure towards the accountable State on its behalf.
Third, whereas the cyber-literature and observe generally use the time period ‘collective countermeasures’ to parallel the notion of ‘collective self-defence’, the best of collective self-defence can not present a compelling analogy on this context. It’s because, because the ILC famous, collective self-defence could also be rationalised on the premise of the erga omnes character of the prohibition of pressure. States are every (individually) entitled to behave in ‘collective’ self-defence by Article 51 UN Constitution, a proper which is underpinned by the authorized curiosity they possess in compliance with the prohibition of pressure. On this context, the requirement of ‘request’ acts to restrict the best of collective self-defence of States, and never – as can be the case with proxy countermeasures – to create that proper. Furthermore, analogies can even not be drawn to conditions the place a State requests a non-public entity (resembling a know-how firm) to take the measure on its behalf: the non-public entity would seemingly haven’t any related obligations of its personal underneath worldwide regulation, and its actions can be attributable (underneath Articles 5 or 8 ASR) to the requesting State. In different phrases, it could be the requesting State itself performing for the needs of worldwide regulation.
Fourth, we don’t consider that there are different authorized doctrines or guidelines – resembling company or the vesting of powers – that would plausibly be relied upon to floor the permissibility of proxy countermeasures. Below the doctrine of company, the conduct of the agent is handled by the authorized order because the conduct of the principal. So if State C (in our instance above) had been to take a countermeasure on behalf of B, this is able to be thought of an act of B and never of C. Nevertheless, it’s not clear that there’s a normal regulation of company in worldwide regulation. Writing within the Forties, Sereni thought of that there have been situations of observe on this respect and that no State had objected to those kinds of relations in precept. Nevertheless, he famous that with the intention to have authorized results towards third events, such company preparations required notification to, and a few type of recognition by, that third occasion. For current functions, State A would must be notified, and recognise or settle for, that State C was performing on behalf of State B. This might be unlikely within the conflictual context of countermeasures.
As to the vesting of powers, the query right here is whether or not State B may switch its proper to take countermeasures to State C. In authorized phrases, it could not be the case, as within the earlier paragraph in relation to company, that the conduct of State C is handled as that of State B, however somewhat that the justification can be transferred from B to C. Right here, some care is required. It’s true that authorized orders recognise a wide range of doctrines pursuant to which one occasion can switch or vest a proper or energy in one other. Nevertheless, the query right here is far more particular – and considerations the putative switch of a defence such that State C has a justification for infringing its personal obligations vis-à-vis State A. Put on this narrower manner, it’s laborious to seek out any assist in even roughly analogous conditions in home regulation. Though a full survey of all home orders isn’t potential, it’s uncertain that in contract regulation, for example, such a risk would exist. It will entail that, absent particular settlement on the contrary, a breach of a contractual obligation owed by X to Y, which could justify some remedial motion by Y, may entitle Z to not adjust to its personal, unbiased, obligations to X simply because Y requests that they not comply.
The endorsement of this broad notion of ‘collective countermeasures’, as together with what we name ‘proxy countermeasures’, is commonly grounded on concerns of coverage and equity. It factors, particularly, to the imbalances of technical or materials functionality between States, and the instinct that stronger States ought to be capable of come to assistance from weaker States. That is, too, the priority usually voiced within the literature in assist of cooperation within the area of countermeasures. That is actually an comprehensible purpose, and it could drive the event of a doctrine of proxy countermeasures both as a particular response mechanism in cyber-space or as a normal growth of the regulation of worldwide accountability.
This mentioned, any such growth might want to attend to the precise authorized mechanism by which the motion of the requested State turns into lawful – whether or not via some notion of company, vesting, or the switch of a justification. Furthermore, particularly if meant as a growth of the final regulation of countermeasures, it could additionally want to offer strong safeguards towards abuse. An enlargement of the pool of States entitled to take countermeasures may result in elevated resort to them, and to the aggravation of disputes. In addition to, it is going to be key to protect towards abuse of this ‘new’ entitlement by highly effective States. Though a request can be required, it could nonetheless be for these States to determine when to behave on that request, and thus to determine which violations of the rights of smaller States they want to see enforced. Writing in 2002 on what he referred to as solidarity measures, Koskenniemi argued that given there isn’t a suggestion of an obligation to behave in these circumstances—not like in respect of a home police pressure—highly effective States may thus create ‘a world order of their liking by selecting between violations they implement and violations they don’t, in addition to deciding on the way and depth of their response’ (at 344). Koskenniemi’s level applies with as a lot pressure to the query of proxy countermeasures.
Conclusion – One other Strategy
There isn’t any doubt that the coverage concern behind the proposed growth of proxy countermeasures is a crucial one. To the extent that States do want to develop the regulation on this route, there could also be a greater method to attain the identical consequence. It will require, basically, two mixed steps. First, it could require the classification of sure obligations as erga omnes (for instance, these repeatedly infringed by malicious cyber-operations resembling territorial sovereignty and non-intervention). Second, it could require clarification of the permissibility of normal curiosity countermeasures in worldwide regulation. On this manner, a State sufferer of a malicious cyber-operation should be capable of name upon their allies to take countermeasures towards its wrongdoer. Such an method would cohere with the fundamental construction of the regulation of accountability (on standing), and with the present normal framework for the implementation of State accountability.
