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Editorial #41: (Re)focusing Equality

On Countermeasures and the International Legal Order

29.01.2025

As we step into 2025, one issue remains as critical as ever: how should countermeasures function within the international legal order? Countermeasures have long been a paradox in international law. On one hand, they represent a vital tool for states to enforce their rights and show the effectiveness of international law in the absence of a centralized global authority (such as China’s recent countermeasures against US arms sale to Taiwan). On the other hand, they are often wielded by powerful states against small states to exert economic and political influence, but seldom the other way round. This has raised questions about fairness and equality in international relations (see a TWAIL reflection on economic sanctions here).

Over the past few years, as the geopolitical struggles intensify, countermeasures are frequently invoked by states, perhaps more than ever. Apart from classic countermeasures as adopted in bilateral relationships, new issues arise as to third-party countermeasures (see here), economic and financial sanctions (though they cannot always be equaled to countermeasures, see here), and countermeasures in the context of cyber space (see here and here). Especially during the past three years, countermeasures were adopted by the EU and the US against Russia for its aggression, and by Turkey against Israel, accusing it of genocide. These situations generate waves of scholarly discussion on the legal framework of countermeasures. The existing framework, primarily outlined in the 2001 Articles on State Responsibility (such as proportionality, prior notification and negotiation), leaves considerable room for adaptation to new challenges and policy goals.

More instead of less discussion and practice on countermeasures are expected in the years to come (see some of our blog posts on this topic in 2024 here and here). Given this trajectory, the present moment offers an opportune time to reassess the underlying policy goals that shape the regime of countermeasures. In this editorial, I argue for a (re)focus on equality as the central value guiding this legal mechanism—a call that is not only timely but essential for the legitimacy and fairness of the international legal order.

The Goal of Countermeasures During and After the Cold War

While the practice of self-help in inter-state relationships could be traced back to the 18th century, the term ‘countermeasure’ and the modern legal framework on it were established only in the late 20th century. Initially, the goal of countermeasures was to maintain stability and prevent escalation between states, especially in the context of the Cold War. But with the end of the Cold War came a significant shift in how countermeasures were understood—shifting from a tool of conflict containment to one focused on curbing inequality among states. As a corollary, the legitimate scope of countermeasures is reduced in this process. A comparison between the classic jurisprudence on countermeasures during and after the end of the Cold War and the simultaneous discussions on the law of state responsibility in the International Law Commission (ILC) is indicative for this development.

One of the cases best illustrating the Cold War period countermeasure policy is the Air Services Agreement arbitration (1978). The case was brought before the Arbitral Tribunal established under the Compromis between the US and France. The dispute arose after French authorities denied Pan American Airlines permission to resume service between the US and Paris via London. In response, the US issued an order prohibiting Air France from operating certain flights to the US. The issue then arose as to whether the US order was lawful. The Tribunal upheld its legality as the US measure was not disproportionate. In its proportionality analysis, the Tribunal refrained from directly comparing the economic impact of the French decision (the wrongful act) with the US prohibition (the countermeasure). Instead, it underscored “the importance of the positions of principle” within the broader context of US air transport policy, concluding that the US response was justified in light of the French violation of US interests in this area.

The Tribunal articulated the purpose of countermeasures as twofold: First of all, to restore equality between the parties and second to encourage continued negotiations, thereby avoiding escalation (paras 90–91). This reasoning was a classical reflection of the Cold War-era priorities, where proxy conflicts were prevalent and the containment of conflicts within manageable boundaries – in other words, not escalating into forcible measures and even war – was paramount. The Tribunal also stated that countermeasures need not be suspended during ongoing negotiations or dispute settlement processes (para 94). The broad latitude granted to states in deploying countermeasures aligned with the geopolitical realities of the time, where self-help measures were seen as a way to prevent conflicts from spiraling into military confrontations.

This expression – avoiding escalation of conflict – has seldom ever appeared in the post-Cold War utterances. It was replaced by a new formulation of not exacerbating the inequality among states. For example, since the early 1990s, ILC Special Rapporteur Arangio-Ruiz and his colleagues tended to tighten restrictions on such measures. One of the instantiation was that Arangio-Ruiz redefined countermeasures as instrumental rather than substantive legal consequences (see his Third Report to the ILC, para 1). Unlike the earlier era, countermeasures were no longer viewed as sanctions in themselves but as tools to enforce reparations or compliance. There was also a discussion on whether states must exhaust all means of dispute settlement before resorting to countermeasures (see an EJIL Symposium on this topic, though the outcome of the debate removed such a requirement). The tightening trajectory is also reflected in the ICJ’s Gabčíkovo-Nagymaros Project judgment (1997). In this case, and with limited elaboration, the Court held that the countermeasure taken by Czechoslovakia was disproportionate because, by unilaterally assuming control of a shared watercourse, it failed to respect the principle of equitable usage for non-navigational purposes (paras 85-86) (on this issue, only Judge Vereshchetin and Judge Parra-Aranguren dissented). While the reasoning was endorsed by the majority of judges, the Court offered little clarification on why it focused solely on the shared nature of the watercourse in assessing proportionality or whether any unilateral action in such contexts would inherently be deemed disproportionate. The decision nonetheless suggests a narrowing of the permissible scope of countermeasures.

Comparison between the policy goals of countermeasures before and after the end of the Cold War suggests that the standard of assessing the legality of countermeasures evolves over time. The policy goal is rarely scrutinized but usually plays a crucial role in the judicial evaluation of countermeasures. They are not directly visible in the legal thresholds about countermeasures in the Articles on State Responsibility either, but gain traction through the interpretation of elements such as proportionality. After all, as Paddeu argues, ‘proportionality establishes a functional connection between the ends and the means of countermeasures’.

What Policy Goal for Countermeasures Today?

A long time has passed since the early 1990s and the finalization of the 2001 Articles on State Responsibility. After reflecting on the historical evolution of countermeasures, one must ask whether the policy goal of avoiding abuse and preventing the aggravation of inequality remains relevant and desirable today. I believe this goal is not only still valid, but deserves even more prominence than it has received up to now.

Inequality among states has become the paramount concern after ideological conflict was over after the end of the Cold War. It is even more so today, when unilateral sanctions are widely imposed by the powerful states as a statecraft, with widespread negative human rights impact. The case of US sanctions on Syria is a stark example, causing 90% of children in Syria depending on humanitarian aid, and over half a million children suffering from malnutrition (see here). This tragic reality highlights how coercive measures are frequently used to enforce political agendas, often causing more harm than good. The claim by these states that their countermeasures serve a ‘common good’ for the international community (see here) – sometimes bringing the question of third-party countermeasures into discussion – often obscures the underlying inequity at play. Without proper checks and balances, such practices disproportionately harm smaller states, making them more vulnerable to exploitation by more powerful actors. Moreover, the issue of inequality is increasingly relevant in the context of cyber warfare, where the technological capabilities of a state can determine the effectiveness of countermeasures. In this domain, countermeasures are increasingly becoming the privilege of a few technologically advanced states, further marginalizing smaller states that lack the infrastructure to defend themselves. This adds another layer to the inequality problem, making it clear that countermeasures cannot be viewed in isolation from the broader power imbalances that persist in the international system.

President Trump’s inaugural speech on January 20th should heighten our sense of urgency, signaling an escalating reliance on economic, political, and even military statecraft—such as sanctions and countermeasures—as tools in the US’s confrontational approach to international relations. These measures extend beyond China and Panama, as Trump aims to assert US leadership globally. As he declared, ‘Our power will stop all wars and bring a new spirit of unity to a world that has been angry, violent, and totally unpredictable.’ Yet, this rhetoric threatens efforts to address global inequality. Those already marginalized in international relations are likely to suffer more from these unilateral measures. With US state power behind them, future sanctions and countermeasures may further entrench existing disparities, and reinforce power imbalances rather than promoting equity.

These realities urge a reevaluation of the policy goal of countermeasures with an emphasis on equality. In pushing this argument slightly further, countermeasures should not only aim to avoid the aggravation of inequality (the formulation adopted since the early 1990s) but also actively work towards building equality within the international legal framework. As I earlier mentioned, this shift does not even need to rebuild any legal thresholds for countermeasures as reflected in the Articles on State Responsibility. It would already work if elements such as proportionality were evaluated with greater aspirations.

The current international legal order is facing a legitimacy crisis and critics of double standards. Rather than viewing countermeasures merely as tools to address state wrongdoing, international lawyers could, by a concerted effort, reframe them as instruments to equalize power dynamics in the world order. By reconstructing the interpretation of legal thresholds and introducing stronger institutional checks, we can transform countermeasures into a mechanism that promotes fairness and equity, and further contribute to legitimacy in the international legal system.

Autor/in
Liyu Feng

Liyu is a PhD in Law Candidate at the University of Cambridge. She is currently Editor-in-Chief of the Cambridge International Law Journal. Her fields of research include the law of state responsibility, community interests in international law and the history and theory of international law.

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