A Licence to Breach
Who May Take Countermeasures, and Against Whom?
Mrinaal Tomar and Kiya Somal
This paper addresses the law of countermeasures available to an injured State. A
countermeasure is conduct by an injured State that would ordinarily breach an obligation
owed to the State responsible for a prior internationally wrongful act, but whose
wrongfulness is precluded because it responds to that act; the suspension of trade concessions
or of treaty-based landing rights are familiar examples. Its purpose is to induce the
responsible State to resume compliance rather than to punish it, which is why a
countermeasure must be temporary and, so far as possible, reversible. It is therefore distinct
both from retorsion, which is unfriendly but lawful conduct requiring no justification, and
from enforcement measures authorised by the United Nations Security Council.
After locating countermeasures in the context of the International Law Commission’s (ILC)
Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) and the
circumstances precluding wrongfulness, this paper explores the substantive and procedural
requirements for a countermeasure that complies with the law. It does so by reference to the
seminal International Court of Justice, arbitral jurisprudence and recent academic scholarship.
It focuses on the law and practice of countermeasures in investor–State arbitration in the light
of the North American Free Trade Agreement (NAFTA) awards in the trilogy of Corn
Products, Archer Daniels Midland and Cargill v Mexico. It also addresses the law and
practice of countermeasures taken by third States, or by States acting collectively, and in
particular the reaction of many States to the Russian Federation’s invasion of Ukraine in
2022. Finally, it argues that the law is precise about how a countermeasure may be taken but
not about who may take one, or against whom. Every condition set by ARSIWA assumes a
bilateral relationship between an injured State and a responsible State, and where that
assumption fails the answer is supplied by a prior classification, of investor rights in the first
setting and of Article 54 ARSIWA in the second, rather than by rule. The paper closes with
recommendations addressed to tribunals, to States acting in the collective interest and to any
future codification.
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