Available only in Russian
Author: Aiman Smagulova
Keywords: countermeasures, international responsibility, non-injured international organization, non-injured state, sanction
The present article considers the use of countermeasures by the non-injured international organizations against states and international organizations committed international wrongful act. In particular, the author attempts to find out whether countermeasure represents either a new legal phenomenon, which is still evolving or existing international custom. For that purpose, two constitutive elements to determine customary international law will be analyzed: general practice and whether that practice is accepted as law (opinio juris). The paper investigates contemporary practice of international organizations such as the League of Arab States, Organization of African Union, Organization of Islamic Cooperation, Organization of American States, European Union, Council of Europe and etc. through provisions of 2001 Articles on Responsibility of States for Internationally Wrongful Acts and 2011 Articles on the Responsibility of International Organizations. Moreover, countermeasures taken by the non-injured international organization against responsible international organization, member-states and non-member states will be differentiated. In parallel, procedural and substantial requirements for countermeasures will be raised and distinction between countermeasures, sanctions, restrictive measures and retorsions having a similar meaning will be made. Particular attention in the article is paid to opinio juris of the non-injured international organizations taking countermeasures. Hence, the author concludes that the practice of international organizations other than the injured subjects is widespread, representative and consistent, but only in particular cases it accepted as opinio juris. However, there is a reason to believe that the process of formation of international custom has been launched.
About the author: Aiman Smagulova – Ph.D. student, Higher School of Economics, Moscow, Russia.
Citation: Smagulova A. (2018) Kontrmery mezhdunarodnykh organizatsiy, ne yavlyayushchikhsya poterpevshimi: «nou-hau» ili slozhivshiysya obychay? [Countermeasures of non-injured international organizations: know-how or an established international custom?]. Mezhdunarodnoe pravosudie, vol.8, no.3, pp.128–140. (In Russian).
Alvarez J.E. (2005) International Organizations as Law Makers, Oxford: Oxford University Press.
Bowett D. (1994) The Impact of Security Council Decision on Dispute Settlement Procedures. European Journal of International Law, vol.5, no.1, pp.89–101.
Crawford J. (2014) State Responsibility. The General Part, Cambridge: Cambridge University Press.
Crawford J., Pellet A., Olesson S. (eds.) (2010) The Law of International Responsibility, New York: Oxford University Press.
Dawidowicz M. (2017) Third-Party Countermeasures in International Law, Cambridge; New York: Cambridge University Press.
Franck T.M. (2004) Recourse to Force: State Action against Threats and Armed Attacks, Cambridge: Cambridge University Press.
Kelsen H. (2000) The Law of the United Nations: A Critical Analysis of its Fundamental Problems, Union, NJ: The Lawbook Exchange, Ltd.
Oppenheim L. (1955) International Law: A Treatise. Vol.2: Disputes, War and Neutrality, H.Lauterpacht (ed.), 7th ed., London: Longmans, Green and Co.
Lukashuk I. (2004) Pravo mezhdunarodnoy otvetstvennosti [Law of International Responsibility], Moscow: Wolters Kluwer. (In Russian). (In Russian).
Martens F. (2014) Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov [Modern international law of civilized nations], V.A.Tomsinov (ed.), Moscow: Zertsalo-M. (In Russian).
Katselli Proukaki E. (2010) The Problem of Enforcement of International Law: Countermeasures, the Non-Injured State and the Idea of International Community, London; New York: Routledge.
Pope Atkins G. (1997) Encyclopedia of the Inter-American System, Westport, CT; London: Greenwood Press.
Ragazzi M. (ed.) (2013) Responsibility of International Organizations: Essays in Memory of Sir Ian Brownlie, Leiden: Martens Nijhoff Publishers.
Tazakopoulos A. (2013) Disobeying the Security Council: Countermeasures against Wrongful Sanctions, Oxford: Oxford University Press.
Van den Herik L. (2017) Research Handbook on UN Sanctions and International Law, Cheltenham: Edwards Elgar Publishing Limited.
Zoller E. (1984) Peacetime Unilateral Remedies. An Analysis of Countermeasures, New York: Transnational Publishers.