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89 (2020) 117-141 INTERNATIONAL

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The Relationship between Third-party

Countermeasures and the Security Council’s
Chapter vii Powers: Enforcing Obligations
erga omnes in International Law
Amanda Bills
Lund University, Lund, Sweden
amanda.bills@outlook.com
Abstract
The article examines the relationship between third-party countermeasures and the
Security Council’s powers to adopt measures under Chapter vii of the United Nations
Charter in response to breaches of obligations erga omnes. It is shown that the resort
to third-party countermeasures is neither precluded nor subject to limitations as a re-
sult of the relationship to the Security Council’s Chapter vii powers, even when both
types of measures are adopted concurrently. Moreover, the fears that third-party coun-
termeasures would interfere with or undermine the effective application of Security
Council measures do not appear to have materialised in practice.
Keywords
third-party countermeasures – sanctions – obligations erga omnes – state

responsibility law
1 Introduction
On 17 August 2019, Sudan’s opposition coalition and the ruling Transitional

Military Council signed a power-sharing agreement.1 The agreement not only
1 The Guardian, ‘Sudan Opposition and Military Sign Final Power-Sharing Accord’, 17 August
2019, <https://www.theguardian.com/world/2019/aug/17/sudan-opposition-group-and-mili-
tary-sign-power-sharing-accord>, visited 17 September 2019.
© koninklijke brill nv, leiden, 2020 | doi:10.1163/15718107-bja10003

Downloaded from Brill.com03/24/2023 04:22:00AM
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ended years of conflict, but is also relevant for the non-forcible sanctions re-
gimes imposed against Sudan over the past two decades, including measures
adopted at both the unilateral and institutional levels in the form of trade em-
bargoes and asset freezes in response to serious violations of human rights and
humanitarian law. The international response to the situation in Sudan illus-
trates the long-term and concurrent use of third-party countermeasures taken
by individual states alongside Security Council measures adopted under Chap-
ter vii of the United Nations (UN) Charter, each with its own scope and based
on clearly distinct legal rationales.2 While the relationship between these mea-
sures might seem frictionless in practice, it is part of a long-standing debate on
the means of enforcement of multilateral obligations in international law and
the relationship between measures at the unilateral and institutional levels.
In more general terms, the concept of third-party countermeasures3 refers
to the use of countermeasures by states other than the injured state in response
to breaches of multilateral obligations (i.e. obligations erga omnes).4 Third-
party countermeasures have been envisaged as a means to operationalise the
regime of obligations erga omnes, providing states with “a necessary middle
ground between war and words” to enforce collective interests.5 The main
sources of controversy included the significant risks of abuse associated with
the use of third-party countermeasures, and the uncertain relationship of
third-party countermeasures to the Security Council’s mandate for the mainte-
nance of international peace and security under the UN Charter.6 These issues
were the subjects of significant debate during the drafting of the Articles on
the Responsibility of States for Internationally Wrongful Acts (arsiwa), in
which Special Rapporteur James Crawford had made a proposal for a regime
of third-party countermeasures (‘collective countermeasures’) to be formally
included in the draft as a response to breaches of obligations erga omnes.7
Following strong opposition in the International Law Commission (ilc) and
2 See infra Section 3.3. For further references, see M. Dawidowicz, Third-Party Countermeasures
in International Law (Cambridge University Press, Cambridge, 2017) pp. 255–262; and N. Jan-
sen Calamita, ‘Sanctions, Countermeasures, and the Iranian Nuclear Issue’, 42:5 Vanderbilt
Journal of Transnational Law (2009) pp. 1439–1441.
3 On the terminology for this legal category, see Dawidowicz, supra note 2, p. 34.
4 J. Crawford, State Responsibility: The General Part (Cambridge University Press, Cambridge,
2013) pp. 703–706.
5 UN General Assembly, Report of the Secretary General, In Larger Freedom: Towards Develop-
ment, Security and Human Rights for All (A/59/2005), para. 109.
6 L.-A. Sicilianos, ‘La Codification des Contre-Mesures par la Commission de Droit Interna-
tional’, 38:1–2, Revue belge de droit international / Belgian Review of International Law (2005)
pp. 484–490.
7 Crawford, supra note 4, p. 703; see also J. Crawford, Third Report on State Responsibility
(A/CN.4/507/Add.4), para. 405.
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Enforcing Obligations Erga Omnes in International Law 119
by states in the Sixth Committee, a compromise solution was found in the

adoption of a savings clause, which neither endorsed nor precluded the right
to third-party countermeasures but left the matter to the further development
of international law.8
The permissibility of third-party countermeasures remains one of the most
controversial topics in the law of state responsibility.9 However, several recent
studies have suggested that the now rather substantial body of state practice
may indicate that the right to third-party countermeasures has emerged (or is
at the very least in the process of emerging) as a rule under customary interna-
tional law.10 If the use of third-party countermeasures is permissible under
general international law, the question remains how such measures relate to
measures taken at the institutional level by the Security Council under Chap-
ter vii of the UN Charter. Fundamentally, it is a question of whether the en-
forcement of the collective interests of the international community should
take place within a unilateral or institutional framework.11
Therefore, the aim of this article is to examine the use of third-party coun-
termeasures in relation to Security Council measures adopted under Chapter
vii of the UN Charter. As most of the previous studies on the topic of third-
party countermeasures have focused on the permissibility of such measures in
international law, this article adds to the existing literature by considering
how third-party countermeasures relate to the Security Council’s Chapter vii
powers to clarify the links between unilateral and institutional means of en-
forcing multilateral obligations in international law.
For these purposes, the article addresses the following two questions: (i)
What is the relationship between third-party countermeasures and Security
Council measures adopted under Chapter vii of the UN Charter?, and (ii)
What are the implications of this relationship for the right of states to respond
unilaterally to breaches of obligations erga omnes through resort to third-party
countermeasures? This article does not aim to restate previous research on the
8 ilc, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Com-
mentaries (Ilc, arsiwa Commentary) (2001), Article 54, paras. 6–7.
9 See C.J. Tams, ‘Individual States as Guardians of Community Interests’, in U. Fastenrath
and B. Simma (eds.), From Bilateralism to Community Interests: Essays in Honour of Bruno
Simma (Oxford University Press, Oxford, 2011), p. 390 and 397, with further references.
10 Dawidowicz, supra note 2, pp. 282–284 and pp. 111–238. For a similar conclusion, see C.J.
Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University
Press, Cambridge, 2005), and E. Katselli Proukaki, The Problem of Enforcement in Interna-
tional Law: Countermeasures, the Non-Injured State and the Idea of International Commu-
nity (Routledge, London, 2010).
11 V. Gowlland-Debbas, ‘Responsibility and the United Nations Charter’, in J. Crawford, A.
Pellet, and S. Olleson (eds.), The Law of International Responsibility (Oxford University
Press, Oxford, 2010), p. 126.

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permissibility in international law of third-party countermeasures, but builds

on these studies to continue the discussion on the use of third-party counter-
measures but in the broader and institutional context of the enforcement of
obligations erga omnes. The mostly theoretical scope of this article means that
state practice is used primarily to illustrate theory.
This article argues that the resort to third-party countermeasures is neither
precluded nor subject to limitations as a result of the relationship to Security
Council measures adopted under Chapter vii of the UN Charter, when both
types of measures are taken concurrently. The relationship between the two is
significantly less controversial than previously thought, and it appears as un-
likely that third-party countermeasures would actually interfere or undermine
the effective application of the Security Council’s Chapter vii measures. More-
over, if this were indeed the case, the Security Council would be competent to
decide to limit the use of third-party countermeasures in any given situation.
It is also likely that the legal conditions and procedural safeguards applicable
to the use of countermeasures in general under the arsiwa would have the
effect of limiting the use of third-party countermeasures. The relationship be-
tween third-party countermeasures and the Security Council’s Chapter vii
measures might therefore best be described as parallel systems of law both
providing for the legal consequences arising from the breach of an obligation
erga omnes.
This article is structured in four parts. Following the introduction (section 1),
there are two main sections (sections 2 and 3) and a final section with conclud-
ing remarks (section 4). Section 2 begins by providing an overview of obliga-
tions erga omnes in international law, emphasising the problem of enforce-
ment and the role of the Security Council in this regard. The section then
considers the use of third-party countermeasures as a means of enforcing ob-
ligations erga omnes at the unilateral level. Section 3 goes on to examine the
relationship between the resort to third-party countermeasures and the Secu-
rity Council’s Chapter vii measures on the basis of the arsiwa and the UN
Charter, ending with a discussion of relevant practice to further illustrate this
relationship. Finally, section 4 offers some concluding remarks.
2 Third-party Countermeasures in International Law
2.1 Obligations Erga Omnes and the Problem of Enforcement

The emergence of obligations erga omnes in international law, that is, obliga-
tions belonging to the category of multilateral obligations established for the
protection of a collective interest and that are owed by states individually to

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the international community as a whole,12 has led to debates on which actors

are, or should be, entitled to enforce the collective interests of the interna-
tional community.13 The concept of obligations erga omnes was recognised in
its modern iteration in the Barcelona Traction judgment,14 in which the Inter-
national Court of Justice (icj) in a now-famous passage drew, obiter dictum,15
a distinction between bilateral obligations and the “obligations of States to-
wards the international community of states”, that are “the concern of all
States” and for whose protection “all States can be held to have a legal interest”.16
The existence of obligations erga omnes, particularly in areas such as human
rights and humanitarian law, is now widely accepted in international law,
which reflects the conceptualisation of contemporary international law as
serving not only the interests of states, but also the collective interests of the
international community as a whole.17 Despite the relative importance of the
interests protected by obligations erga omnes, the icj has remained silent on
the means of enforcement available to states with a legal interest in the protec-
tion of obligations of this nature.18
The Security Council occupies an important role for the enforcement of the
collective interests of the international community, not least because of its
central role under the UN Charter.19 Under Chapter vii of the UN Charter, the
Security Council has broad powers to determine the existence of a threat to
or breach of the peace, or an act of aggression (Article 39), and to adopt the
12 Crawford, supra note 4, pp. 362–363.

13 Gowlland-Debbas, supra note 11.
14 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); Second Phase,
(Barcelona Traction), 5 February 1970, icj, Judgment, <https://www.icj-cij.org/files/case-
related/50/050-19700205-JUD-01-00-EN.pdf>, paras. 33–34.
15 On the statement’s character as obiter dictum, see Tams, supra note 10, pp. 167–173.
16 Barcelona Traction (Belgium v. Spain), supra note 14, para. 33. See further M. Ragazzi, The
Concept of International Obligations Erga Omnes (Clarendon, Oxford, 1997) pp. 8–12.
17 B. Simma, ‘From Bilateralism to Community Interest in International Law’, 250 Recueil des
Cours de l’Académie de Droit International (1994) pp. 233–235, defining this type of inter-
ests (community interests), as “[a] consensus according to which respect for certain fun-
damental values is not to be left to the free disposition of states individual inter se, but is
recognised and sanctioned by international law as a matter of concern to all States”. See
further S. Villalpando, ’The Legal Dimension of the International Community: How Com-
munity Interests are Protected in International Law’, 21:2 European Journal of Internation-
al Law (2010), p. 391.
18 So far, the icj has only once granted legal standing to a third state for a breach of a
multilateral obligation, in Questions Relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), 20 July 2012, icj, Judgment, <https://www.icj-cij.org/files/case-
related/144/144-20120720-JUD-01-00-EN.pdf>, paras. 69–70, for the breach of an obligation
erga omnes partes.
19 Simma, supra note 17, pp. 261–262.

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measures necessary to maintain or restore international peace and security

(Articles 40–42).20 Thus, the Security Council is competent to respond to
breaches of obligations erga omnes, where and if it determines that a situation
falls within its mandate.21 In practice, the Security Council has increasingly
taken measures in response to breaches of obligations erga omnes by drawing
on expansive interpretations of the notion of a threat to the peace under Arti-
cle 39 of the UN Charter.22 In its 1992 Summit Declaration, the Security Council
recognised that “[t]he absence of war and military conflicts amongst States
does not itself ensure international peace and security. The non-military
sources of instability in the economic, social, humanitarian and ecological
fields have become threats to peace and security”.23 Similarly, in 2006, the Se-
curity Council adopted Resolution 1674, whereby it reaffirmed its responsibili-
ty to protect civilians from acts of ethnic cleansing, genocide, crimes against
humanity and war crimes in armed conflict, as initially set out in the Respon-
sibility to Protect framework.24 These developments reflect an evolving under-
standing of the concept of international peace and security, in which serious
breaches of international law may constitute threats to international peace
and security.25 In this regard, the Security Council’s exercise of powers under
20 V. Gowlland-Debbas, ‘The Functions of the United Nations Security Council in the Inter-
national Legal System’, in M. Byers (ed.), The Role of Law in International Politics: Essays
in International Relations and International Law (Oxford University Press, Oxford, 2001),
p. 287.
21 A. De Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into
the Implementation and Enforcement of the International Responsibility of States (Kluwer
International Law, London, 1996) pp. 114–125.
22 Gowlland-Debbas, supra note 10, p. 128. On the increasing activities of the Security Coun-
cil in the 1990s after the end of the Cold War, see V. Gowlland-Debbas, Collective Responses
to Illegal Acts in International Law (Martinus Nijhoff, Dordrecht, 1990), p. 288. See also
J. Frowein, ‘Implementation of Security Council Resolutions’, in V. Gowlland-Debbas
(ed.), United Nations Sanctions and International Law (Kluwer Law International, The
Hague, 2001), p. 253.
23 UN General Assembly, 2005 World Summit Outcome, Res. 60/1 (24 October 2005)
(A/res/60/1); The Responsibility to Protect, Res. 63/308 (14 Sept 2009) (A/res/63/308). See
also the resolution on Iraq, adopted in 1991, in which the Security Council declared that
the human rights abuses committed against parts of the civilian population in the coun-
try would “lead to threats against international peace and security”, see UN Security
Council Res. 688 (5 April 1991) (S/res/688). For further references, see F.A.M. Von Geusau,
‘Recent and Problematic: The Imposition of Sanctions by the UN Security Council’, in
W.J.M Van Genugten and G.A. De Groot (eds.), United Nations Sanctions: Effectiveness and
Effects, Especially in the Field of Human Rights: A Multi-Disciplinary Approach (Intersentia
Law Publishers, Antwerp, 1999) pp. 6–9.
24 UN Security Council Res. 1674 (28 April 2006) (S/res/1674).
25 Gowlland-Debbas, supra note 22, pp. 300–301.

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Chapter vii of the UN Charter can be described as providing a form of collec-

tive response to breaches of this nature.26 However, political limitations (e.g.
the exercise of the veto power) mean that the Security Council’s competences
may not necessarily correspond to all serious breaches of international law.27
It is precisely in the context of an ineffective Security Council that the use of
third-party countermeasures has emerged as an alternative means of enforc-
ing obligations erga omnes at the unilateral level providing states with a “nec-
essary middle ground between war and words”28 to react to serious breaches
of international law.29 There is currently no clearly recognised entitlement
of states to resort to third-party countermeasures in response to the breach-
es of obligations erga omnes, and the issue remains controversial in the law of
state responsibility.30 One of the most significant sources of controversy is the
uncertain relationship of third-party countermeasures to the Security Coun-
cil’s exercise of powers under Chapter vii of the UN Charter.31
The following sections will consider the concept of third-party countermea-
sures from the perspective of state responsibility, and the ilc’s contribution to
this discussion throughout its codification of the law of state responsibility.
This is followed by an examination of recent practice, with an emphasis on
third-party countermeasures adopted in the same context as the Security
Council’s Chapter vii measures.
2.2 Third-party Countermeasures in the Law of State Responsibility

2.2.1 Third-party Countermeasures in International Law
Third-party countermeasures have emerged in practice as a means for the en-
forcement of communitarian norms, i.e. obligations erga omnes and erga
omnes partes. While there is no general definition for this concept, or even
settled terminology, third-party countermeasures are generally understood as
the use of countermeasures by non-injured states in response to breaches of
obligations erga omnes or erga omnes partes.32 The main sources of contro-
versy of the use of third-party countermeasures are essentially two-fold:33 the
26 See L. Boisson de Chazournes, ‘Les resolutions des organes des Nations Unies, et en par-
ticulier celles du Conseil du sécurité en tant que source du droit international humani-
taire’, in L. Condorelli, A.-M. La Rosa and S. Scherrer (eds.), Les Nations Unies et le droit
international humanitaire (Pedone, Paris, 1998) pp. 149–173.
27 Simma, supra note 17, pp. 246–248.
28 UN General Assembly, supra note 5.
29 See Crawford, supra note 4, p. 703.
30 Ibid., see also Tams, supra note 9.
31 Sicilianos, supra note 6, pp. 487–490.
32 Dawidowicz, supra note 2, p. 34.
33 Sicilianos, supra note 6.

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first relates to the potentially very large number of states with a right to re-
spond in the event of a breach, which marks the departure from the traditional
bilateral view of state responsibility, according to which the right to take coun-
termeasures constitutes a form of self-help that arises on a bilateral basis be-
tween pairs of states.34 If all states in the international community would be
entitled to respond, this might create instability in treaty relations and the in-
ternational legal order.35 The second source of controversy relates more broad-
ly to the institutional context in which third-party countermeasures are taken,
namely, the uncertain relationship of such measures to the Security Council’s
Chapter vii powers.36
2.2.2 Countermeasures by States Other Than the Injured State in the

arsiwa
In 2001, the ilc reserved its position on third-party countermeasures by adopt-
ing a savings clause in Article 54 arsiwa. The provision rather ambiguously
provides that the chapter in the draft articles on countermeasures “does not
prejudice the right of any State, entitled under article 48, paragraph 1, to invoke
the responsibility of another State, to take lawful measures against that State to
ensure cessation of the breach and reparation in the interest of the injured
State or of the beneficiaries of the obligation breached”.37 The ilc Commen-
tary to the arsiwa clarifies that at the time of adoption of the draft Arti-
cles, state practice was too limited and that there was no clearly recognised
entitlement to third-party countermeasures.38 Thus, Article 54 arsiwa nei-
ther endorses nor precludes the right to third-party countermeasures.39
Article 54 arsiwa is a compromise solution intended to “reserve the posi-
tion of all those who believed that the right to take countermeasures should be
granted to States other than the injured State with regard to breaches of obliga-
tions established to preserve collective interests and those who believed that
only injured States should have the right to take countermeasures”.40 In 2000,
Special Rapporteur James Crawford made a number of proposals aimed at re-
solving the ambiguities of the draft adopted on first reading, in particular the
34 See L.-A. Sicilianos, ‘The Classification of Obligations and the Multilateral Dimensions of
the Relations of International Responsibility’, 13:5 European Journal of International Law
(2002) pp. 1133–1134.
35 Crawford, supra note 4, pp. 685–686.
37 ilc arsiwa Commentary, supra note 8, Article 54, para. 1, and Article 48, paras. 1–2.
38 Ibid., Article 54, paras. 3–6.
39 Ibid., Article 54, paras. 6–7.
40 ilc, Yearbook of the ilc, 2001, Vol. I, 35 (A/CN.4/ser.A/2001), para. 48 (Mr. Tomka).

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provisions that appeared to implicitly recognise a right to third-party counter-

measures in response to obligations erga omnes or erga omnes partes.41 Third
states not directly injured by a breach of a multilateral obligation would have
limited rights of invocation, secondary to that of the injured state, reflecting
the current Articles 42 and 48 arsiwa.42 The proposals included a regime of
‘collective countermeasures’43 for situations in which the directly injured state
requested the assistance of a third state, or in the event of a breach of an obli-
gation erga omnes or erga omnes partes with no directly injured state, such as
breaches of human rights or humanitarian law affecting only the nationals of
the wrongdoing state.44 In the latter situation, Special Rapporteur Crawford
considered that to disallow third-party countermeasures in response to “gross
and well-attested breaches of obligations erga omnes” may “place further pres-
sure on States to intervene in other, perhaps less desirable ways”, and that
“[i]nternational law should offer to States with a legitimate interest in compli-
ance with such obligations, some means of securing compliance which does
not involve the use of force”.45
The regime of third-party countermeasures was eventually rejected and re-
placed by the savings clause in the current Article 54 arsiwa.46 While on one
hand, several members of the ilc considered that the Article was a “necessary”
provision to deal with serious breaches of obligations erga omnes,47 on the
other several members called for the provision to be deleted given the sparse
state practice and dangers associated with formally recognising a regime of
third-party countermeasures.48 In the Sixth Committee, Mexico’s statement
summarised most of the arguments against recognising a regime of third-party
countermeasures, namely that “[t]he response to a serious violation of this
type has already been clearly defined in the legal order established by the
Charter itself... it would be unacceptable to introduce a mechanism that would
change the collective security system enshrined in the Charter and allow
for the taking of collective countermeasures, unilaterally decided, without
41 Crawford, supra note 4. For a comprehensive overview of the ilc’s drafting process with
regard to countermeasures, see Sicilianos, supra note 6, pp. 447–500, and more specifically
with regard to third-party countermeasures, Dawidowicz, supra note 2, pp. 72–110.
42 See the ilc, arsiwa Commentary, supra note 8, Article 48, para. 2.
43 ilc, Yearbook of the ilc, 2000, Vol. ii (A/CN.4/ser.A/2000/Add.1 (Part 2) Rev.1) paras.
70–72.
44 Crawford, supra note 4, p. 703.
45 Crawford, supra note 7.
46 J. Crawford, Fourth Report on State Responsibility (A/CN.4/517, 22), para. 74.
47 Ybk ilc, supra note 40, 40, para. 41 (Mr. Economides), and para. 49 (Mr. Pellet).
48 Ibid., 35, para. 2 (Mr. Brownlie).

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intervention of the central organ of the international community”.49 More-

over, the relationship between third-party countermeasures and the Security
Council’s Chapter vii powers was considered unclear and not resolved by
what later became Article 59, “since the [UN] Charter itself did not establish
whether Security Council-mandated measures automatically entailed the ces-
sation of countermeasures by States or whether the two types of measures
could be implemented simultaneously without violating the principle of
proportionality”.50 Following these comments, the regime of third-party coun-
termeasures was rejected and replaced by the savings clause in the current Ar-
ticle 54 arsiwa, leaving the matter to the further development of internation-
al law.51
2.2.3 State Practice of Third-Party Countermeasures

The question of the permissibility of third-party countermeasures in interna-
tional law must be determined on the basis of state practice, given the incon-
clusive position of the ilc since its adoption of the savings clause in Article 54
arsiwa.52 Recent studies on this topic have found that state practice at the
time of the adoption of the arsiwa was much more substantial than initially
held by the ilc and by states in the Sixth Committee, and that the use of third-
party countermeasures is increasingly common in response to breaches of ob-
ligations erga omnes.53 State practice, although dominated by Western states,
is diverse and widespread, with a large number of non-Western states from
Eastern Europe, Eurasia, the Middle East, Asia and Africa either supporting or
contributing to practice.54 The more controversial issue is whether this prac-
tice is accompanied by the elements of opinio juris required to form a rule un-
der customary international law. The existence of opinio juris can be inferred
from the actual practice of states in the absence of specific indications to the
contrary.55 Although states typically do not justify their measures in legal terms
49 Statement by Mexico, UN General Assembly, Documents of the Fifty-Third Session, Com-

ments and Observations Received from Governments (A/CN.4/515/Add.1), paras. 9–10.
50 See the statement of Cameroon, UN General Assembly, Summary of Record of the 24th
Meeting (A/C.6/55/SR.24), 11, para. 64 (Cameroon).
51 See further ilc, arsiwa Commentary, supra note 8.
52 ilc, arsiwa Commentary, supra note 8; Crawford, supra note 46, paras. 71–74; M. Da-
widowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State
Practice on Third-Party Countermeasures and their Relationship to the UN Security
Council’, 77:1 British Yearbook of International Law (2006), p. 409.
53 See Dawidowicz, supra note 2, pp. 282–284 and 383–385, with further references.
55 See Dissenting Opinion of Judge Tanaka in the North Sea Continental Shelf Cases (Federal
Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), 20 February

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as third-party countermeasures, there is little to indicate that states did not

believe that their conduct could not be justified in legal terms.56 Moreover,
while the decisions of states to resort to third-party countermeasures are al-
most inevitably dictated to some extent by political considerations, this does
not mean that the practice in question cannot be law-making, or that the exis-
tence of political considerations would automatically replaces any form of le-
gal assessment.57 Therefore, the now substantial body of state practice of
third-party countermeasures is likely to be accompanied by the appropriate
elements of opinio juris to form a rule under customary international law.
Third-party countermeasures have mainly been taken in response of rela-
tively serious and well-attested breaches of international human rights or hu-
manitarian law.58 In most of these cases, the breaches have concerned pe-
remptory norms of international law (norms jus cogens) clearly giving rise to
obligations erga omnes, such as acts of apartheid, acts of genocide, denial of
self-determination claims, or the practice of torture. Third-party countermea-
sures have also been adopted in response to violations of non-peremptory
norms in the human rights field that give rise to less easily identifiable obliga-
tions erga omnes, such as the right to life, fair trial guarantees, freedom of ex-
pression, freedom from arbitrary detention, and similar obligations.59
A recent and notable example of state practice is the unilateral response to
the serious violations of human rights and humanitarian law in Myanmar,60
which have (as of mid-September 2019) not yet been subject to any meaningful
institutional action beyond verbal condemnation.61 In August 2018, the US im-
posed unilateral sanctions in the form of asset freezes targeted against high-
ranking military and police officials, as well as two military units, for their in-
volvement in the ethnic cleansing in Rakhine State and other serious human
1969, icj, Judgment, para. 176, <https://www.icj-cij.org/files/case-related/51/051-19690220-

JUD-01-00-EN.pdf>.
56 Tams, supra note 10, pp. 238–239, for further references.
57 Dawidowicz, supra note 2, p. 283; Tams, supra note 10, p. 239.
59 Tams, supra note 10, pp. 232–233.
60 See UN Human Rights Council, Report of the Independent International Fact-Finding on
Myanmar (A/hrc/39/64) (12 September 2018), and UN Office of the High Commissioner
for Human Rights, Opening Statement by Zeid Ra’ad Al Hussein, UN High Commission-
er for Human Rights at the 26th session of the Human Rights Council, Geneva (11 Septem-
ber 2017), <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=
22041&LangID=E>, describing the situation as a “textbook example of ethnic cleansing”.
61 See, for example, UN General Assembly Res. 72/248 (23 January 2018) (A/res/72/248).

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rights abuses committed in Kachin and Shan States.62 A few months later, on
21 December 2018, the EU imposed asset freezes targeting high-ranking offi-
cials of the Myanmar military for serious human rights violations committed
against the Rohingya population, ethnic minority villagers and civilians, some
“[amounting] to the gravest crimes under international law”.63 The asset freez-
es were prima facie unlawful under international law and would require some
form of justification, in the absence of which the measures can be understood
as third-party countermeasures.64 The response to the situation in Myanmar
illustrates a feature that is common to most of the practice relating to third-
party countermeasures, namely, that they are adopted in response to breaches
of a relatively serious character that are widely recognised or well-attested by
the international community.65 Although ulterior political motives can never
be completely excluded, the actual practice of third-party countermeasures
seems to contradict the idea that the use of third-party countermeasures is
automatically associated with a risk of abuse.
3 The Relationship between Third-party Countermeasures and the

Security Council’s Chapter vii Powers
3.1 Third-party Countermeasures and the Security Council

State practice of third-party countermeasures now suggests that the right to
third-party countermeasures is emerging as a rule of customary international
law.66 While the law of state responsibility and the Chapter vii of the UN Char-
ter now both provide for the legal consequences arising from the breach of
62 US Department of the Treasury, Treasury Sanctions Commanders and Units of the Burmese
Security Forces for Serious Human Rights Abuses (17 August 2018), <https://home.treasury
.gov/news/press-releases/sm460>.
63 Council of the European Union, Council Decision (cfsp) 2018/2054 (2018); Council Deci-
sion (cfsp) 2019/678 (2019); and Declaration by the High Representative on Behalf of the EU
on the Alignment of Certain Countries with the Council Decision concerning Restrictive Mea-
sures against Myanmar/Burma (2 February 2019).
64 E.J. Criddle, ‘Humanitarian Financial Intervention’, 24:2 European Journal of International
Law (2013) pp. 590–593.
65 Cf. Institut de Droit International, Cinquième Commission: Les Obligations et les Droits Erga
Omnes en Droit International / Fifth Commission: Obligations and Rights Erga Omnes in
International Law (2005), <http://www.idiiil.org/app/uploads/2017/06/2005_kra_01_en
.pdf>, requiring that a breach must be “widely acknowledged” before a state may resort to
third-party countermeasures.
66 See supra Section 2.2.3.

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obligations erga omnes, the question of how such measures relate to one an-
other remains unanswered.67 It may be recalled from the previous chapter that
the uncertainties of this relationship was one of the main reasons for the adop-
tion of the savings clause in Article 54 arsiwa.68 As the majority of third-party
countermeasures are adopted in the absence of effective Security Council
measures, there is at least some potential for overlap between these two types
of measures.69
In a number of instances, third-party countermeasures have been taken
concurrently with the Security Council’s Chapter vii measures.70 There are
two main situations: either where the Security Council was actively seized
with a matter but decided not to impose measures, or where third-party coun-
termeasures were adopted concurrently with and/or exceeded the scope of
measures taken by the Security Council measures. A few notable examples in-
clude the measures adopted against Argentina in response to its invasion of
the Falkland Islands (Islas Malvinas) in 1982, in which the Security Council had
become seized with the matter but decided not to impose measures under
Chapter vii; against South Africa for its illegal regime of apartheid in 1985, in
which the measures taken by the US exceeded the scope of those already ad-
opted by the Security Council; against Sudan in 1997 by the US in response to
serious violations of human rights and humanitarian law, exceeding the scope
of Security Council measures; against the Former Republic of Yugoslavia in re-
sponse to grave violations of human rights and humanitarian law in Kosovo in
1998, where the scope of measures taken by European Community member
states exceeded the scope of the measures already imposed by the Security
Council; against Libya in response to the serious violations of human rights
and humanitarian law committed in the context of the country’s uprising, as
well as later during the subsequent civil war in 2011; and, more recently, the
extensive use of unilateral measures against Syria as a result of the on-going
67 See Dawidowicz, supra note 2, pp. 255–256; Gowlland-Debbas, supra note 10, pp. 122 and
124; L-A Sicilianos, ‘Countermeasures in Response to Grave Violations of Obligations
Owed to the International Community’, in J. Crawford, A. Pellet and S. Olleson (eds.), The
Law of International Responsibility (Oxford University Press, Oxford, 2010) pp. 1140–1142; E.
Palchetti, ‘Consequences for Third States as a Result of an Unlawful Use of Force’, in M.
Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford Univer-
sity Press, Oxford, 2014) pp. 1234–1236; and Crawford, supra note 4, p. 709.
69 Dawidowicz, supra note 52, pp. 417–418.
70 Dawidowicz, supra note 2; and Jansen Calamita, supra note 2.

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and serious violations of human rights and humanitarian law, in which the
Security Council has so far only adopted limited measures in response to a
chemical weapons attack that took place in 2013.71 The perhaps most illustra-
tive example is the measures taken against Sudan from 1997 until present, in
which third-party countermeasures and Security Council measures were ad-
opted concurrently with one another and maintained in force on a long-term
basis. This example is considered in further detail below.72
The Security Council is in principle competent to adopt legally binding de-
cisions that limit the use of third-party countermeasures in situations where
such measures would interfere with or undermine the Security Council’s pow-
ers under Chapter vii of the UN Charter.73 Interestingly, the Security Council
has yet to exercise this power in practice; in the majority of instances of state
practice, third-party countermeasures have been adopted by states in the com-
plete absence of intervention by the Security Council, even where both types
of measures have been adopted concurrently.74 In the absence of any active
intervention by the Security Council, the question that arises is whether the
arsiwa, the UN Charter or the relationship between the two instruments have
a limiting effect on the right to resort to third-party countermeasures. It has
been suggested that once the Security Council has decided on measures under
Chapter vii of the UN Charter, states ‘transform into agents’ for the execution
of these measures and must not take any action that would interfere with or
otherwise undermine their effective application.75 From this perspective, it is
the triggering of Security Council action under Chapter vii of the UN Charter
that would entail an obligation on states to end any third-party countermea-
sures already adopted, or at the very least to adapt so that they are not incom-
patible with Security Council measures.76 It is not clear whether there is any
actual support for the view that the use of third-party countermeasures is lim-
ited in situations where the Security Council is either actively seized with
a situation or is taking measures under Chapter vii of the UN Charter. If
there are no such limitations on third-party countermeasures, it must also be
71 Jansen Calamita, supra note 2.

72 See the discussion infra in Section 3.3.
73 Dawidowicz, supra note 2, p. 262. See also Simma, supra note 17, pp. 248–249, noting that
neither the arsiwa nor the UN Charter supports any formal role of the Security Council
in this regard, concluding that the enforcement function of the UN Charter in providing a
collective response to breaches of international law has not been matched by the devel-
opment of institutional safeguards against the abuse of third-party countermeasures.
74 Tams, supra note 10, p. 236.

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asked whether the emerging right to use such measures would interfere with
or undermine the effective application of Security Council measures also in
practice.
3.2 The UN Charter and the Law of State Responsibility

3.2.1 The Place of the UN Charter in the arsiwa
The relationship between the law of state responsibility and the UN Charter is
expressed in Article 59 arsiwa, according to which the draft Articles are ‘with-
out prejudice to the UN Charter’. Article 59 arsiwa provides that the draft
Articles must be interpreted in conformity with and cannot affect the obliga-
tions arising under the UN Charter, with reference to the supremacy clause in
Article 103 of the UN Charter.77
Thus, Article 59 arsiwa expresses the relationship between the law of state
responsibility and the UN Charter.78 However, the provision is primarily in-
tended to resolve conflicts between the two systems of law and does not as
such subsume the law of state responsibility to the UN Charter.79 In this regard,
the supremacy clause in Article 103 of the UN Charter provides that “[i]n the
event of a conflict between the obligations of the Members of the United Na-
tions under the Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail”. The refer-
ence to “any other international agreement” is a reference to the Charter’s pre-
eminence over conventional (treaty-based) obligations of international law.80
The provision has been interpreted to also cover the derivative obligations of
the UN Charter, in particular the mandatory decisions of the Security Council
adopted in accordance with Chapter vii of the UN Charter, which are legally
binding by virtue of Article 25.81 However, it is not certain to what extent this
hierarchy operates in relation to rights and obligations arising under custom-
ary international law, such as the law of state responsibility.82 As Article 103 of
the UN Charter does not exclude the possibility of later developments in inter-
national law, those in favour of a ‘constitutional’ vision of the UN Charter have
argued that the provision must be interpreted to cover also customary interna-
tional law. In the practice of the Security Council, there appears to be a general
77 ilc, arsiwa Commentary, supra note 8, Article 59, paras. 1–2.

78 Gowlland-Debbas, supra note 10, pp. 115–117 and 120–122, with further references.
79 ilc, arsiwa Commentary, supra note 8, Article 59, paras. 1–2
80 B. Simma, The Charter of the United Nations: A Commentary, Vols. 1–2, 3rd ed. (Oxford Uni-
versity Press, Oxford, 2012), Article 103, paras. 1–3 and 66–69.
81 Ibid., Article 103, para. 2.
82 N.D. White and A. Abass, ‘Countermeasures and Sanctions’, in M. Evans (ed.), Interna-
tional Law (Oxford University Press, Oxford, 2003), p. 518.

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understanding that legally binding Security Council resolutions override con-

flicting obligations of customary international law, meaning that it would be
inconsistent if those effects did not extend also to the Charter.83
The question is how Article 59 arsiwa, read in combination with Article
103 of the UN Charter, applies to the use of third-party countermeasures. In
principle, the rules of state responsibility should continue to apply to states in
carrying out their obligations under the UN Charter, to the extent that there is
no express derogation from them and where they do not affect obligations aris-
ing under the UN Charter.84 Therefore, the priority established under Article
59 arsiwa does not rule out the operation of the law of state responsibility in
situations where the Security Council is either actively seized with a situation
or is taking measures under Chapter vii of the UN Charter.85 This means that
unless it can be established that there is an actual conflict between third-party
countermeasures and obligations arising under the UN Charter, the relation-
ship between the arsiwa and the UN Charter does not limit the use of third-
party countermeasures in this situation.
3.2.2 Implied Limitations under the UN Charter

The possibility for overlapping enforcement competences between states tak-
ing third-party countermeasures and the Security Council’s Chapter vii pow-
ers raises the question of whether the terms, structure or general spirit of the
UN Charter could limit the use of third-party countermeasures in situations
where they might interfere with or undermine the Security Council’s pow-
ers under Chapter vii of the UN Charter. In this regard, there are two main ar-
guments. The first is an analogy to the right of self-defence under Article 51
of the UN Charter, according to which states’ right to resort to third-party
countermeasures would be extinguished once the Security Council has taken
measures under Chapter vii of the UN Charter.86 The second argument is
based on an interpretation of the terms, structure and general spirit of the UN
83 ilc, Report of the Study Group of the International Law Commission, Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of Interna-
tional Law (A/CN.4/L.682), paras. 344–345.
84 Gowlland-Debbas, supra note 10, pp. 120–122, and p. 138.
85 Jansen Calamita, supra note 2, pp. 1437–1441.
86 Yearbook of the ilc, Summary Records of the Meetings of the Forty-Fourth Session
(A.CN.4/ser.A/1992) (Mr. Pellet), in which Mr. Pellet stated that “[i]f the Security Council
had decided on measures within the meaning of Articles 42 and 42, States were no longer
free to decide as they wished on countermeasures of their own”. This argument is echoed
in J. Frowein, ‘Reactions by Not Directly Affected States to Breaches of Public Interna-
tional Law’, 248 Recueil des Cours de l’Académie de Droit International (1994) pp. 345–437,
at pp. 370–371, and in D. Acevedo, ‘The US Measures Against Argentina Resulting from the

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Charter, which would imply an obligation on states to limit their use of third-
party countermeasures once the Security Council has decided on enforcement
measures under Chapter vii of the UN Charter.87
The analogy to self-defence is based on an interpretation of the relationship
between states and the Security Council as expressed by Article 51 of the UN
Charter. Under Article 51 of the UN Charter, states are entitled to use of force in
self-defence to repel an armed attack by another state as an exception to the
otherwise complete prohibition on the use of force in international law. The
right to use force in self-defence is extinguished once the Security Council has
decided on measures in response to the situation in accordance with Chapter
vii of the UN Charter.88 This particular aspect of the Security Council’s man-
date reflects its monopoly on the use of force and its privileged position as
having the primary responsibility for the maintenance of international peace
and security.89 By analogy to the limitations on states’ right to self-defence un-
der Article 51 of the UN Charter, states’ right to resort to third-party counter-
measures would similarly be extinguished if the Security Council decides on
measures under Chapter vii of the UN Charter.90 This point was raised by
states in the Sixth Committee during debates on the arsiwa; Morocco sug-
gested that “by analogy to the right of self-defence, a State should cease its own
countermeasures once the Security Council [has] ordered collective economic
sanctions”, presumably in reference to non-forcible measures adopted under
Article 41 of the UN Charter.91 It may be recalled that Article 59 arsiwa does
not offer much in the way of clarity on the relationship between the law of
state responsibility and the UN Charter, and that it is not clear whether the
restrictions on the use of force could apply by analogy to the use of third-party
countermeasures.92 However, the right of states to use force in self-defence
under Article 51 of the UN Charter is an exception in international law to the
otherwise complete prohibition on the use of force. There is no corresponding
prohibition or other form of limitation on the use of countermeasures once
Malvinas Conflict’, 78 American Journal of International Law (1984) pp. 323 et seq., at pp.
343–344.
88 On the scope of self-defence more generally, see C. Gray, International Law and the Use of
Force, 4th ed. (Oxford University Press, Oxford, 2018) pp. 134–170.
89 Ibid., pp. 132–134.
90 Frowein, supra note 86.
91 See UN General Assembly, supra note 49, para. 39 (Morocco).

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the Security Council has decided to impose Chapter vii measures. This sug-
gests that the analogy to the right of self-defence is inappropriate.93
It has also been suggested that the terms, structure and general spirit of the
UN Charter imply an obligation on states to limit the use of countermeasures
(or other measures) that may interfere with or undermine the Security Coun-
cil’s Chapter vii measures.94 More specifically, that
[the] recourse to the measures provided for in Chapter vii of the UN

Charter was the first essential limitation on the unilateral use of counter-
measures. If the Security Council has decided on sanctions, in accor-
dance with Articles 41 and 42 of the UN Charter, it was hardly likely that
States would take no notice of them and continue to carry out measures
of their own, just as individual or collective self-defence was allowed in
the event of aggression only, according to Article 51... until the Security
Council has taken measures necessary to maintain international peace
and security. If the Security Council had decided on measures within the
meaning of Articles 41 and 42, States were no longer free to decide as they
wished on countermeasures of their own.95
The argument bears a clear resemblance to the ideas expressed in the analogy
to the right of self-defence, as discussed above, and rests on the perception of
the UN Charter as a central or even constitutional document for the interna-
tional community.96 From this perspective, the use of third-party countermea-
sures would risk undermining the central role and powers of the Security
Council, disrupting the institutional balance of the UN Charter.97 Thus, in or-
der to preserve some form of coherence in the international legal order, as de-
fined by the UN Charter, the use of third-party countermeasures must be ex-
cluded or at least subject to significant limitations in situations where the
Security Council has decided on measures under Chapter vii of the UN Char-
ter. However, the existence of limitations that are implied by the structure,
terms or general spirit of the UN Charter must be treated with caution, so as to
not allow “‘textual implication ... to mask simple policy preferences”.98 There is
nothing in the UN Charter, directly or indirectly, to suggest that member states’
93 Jansen Calamita, supra note 2, pp. 1437–1441.

94 See, for example, Crawford, supra note 4, p. 709; Sicilianos, supra note 67, p. 1142.
95 Ybk ilc, supra note 86 (Mr. Pellet).
96 See, for example, P.E. Dupont, ‘Countermeasures and Collective Security: The Case of the
EU Sanctions against Iran’, 17 Journal of Conflict and Security Law (2012) p. 333.
97 Sicilianos, supra note 67, p. 1142.
98 Jansen Calamita, supra note 2.

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scope of action to resort to third-party countermeasures in response to breach-

es of obligations erga omnes would be limited in situations where the Security
Council is also taking measures, or that the Security Council’s exercise of pow-
ers itself would act to displace the law of state responsibility.99 Moreover, the
now rather substantial body of state practice does not suggest that the trigger-
ing of Security Council measures under Chapter vii of the UN Charter would
by itself end or modify the entitlement of states to resort to third-party
countermeasures.100
Although it may be more cohesive from the perspective of the UN Charter
to limit the use of third-party countermeasures in situations where the Secu-
rity Council is either actively seized or is taking measures under Chapter vii of
the UN Charter, this does not find support under the terms, structure or gen-
eral spirit of the UN Charter. The absence of limitations on third-party coun-
termeasures raises the question whether such measures would also in practice
interfere with or otherwise undermine the Security Council’s Chapter vii
powers.
3.3 Do Third-party Countermeasures Interfere with or Undermine

Security Council Measures in Practice?
The risks of third-party countermeasures interfering with or undermining the
system of collective security established under Chapter vii the UN Charter
was one of the main sources of controversy during the ilc’s drafting of the ar-
ticles on the law of state responsibility.101 In particular, one member of the ilc
considered that allowing a regime of third-party countermeasures would “in-
stall a ‘do-it-yourself’ sanctions system that would threaten the security system
based on Chapter vii of the Charter of the United Nations” and that might
sooner or later extend also to the use of force.102 Similarly, it was held that any
such regime would inevitably “[extend] to questions which fell under Article 41
of the Charter of the United Nations, while circumventing the security system
which the latter had set up to safeguard the rights of all States”.103 Howev-
er, neither the arsiwa nor the UN Charter seem to place any limitations on
the use of third-party countermeasures in situations where the Security Coun-
cil is either actively seized or is taking measures under Chapter vii of the UN
99 Ibid., p. 1439, with further references.

100 Dawidowicz, supra note 52, pp. 417–418; Tams, supra note 10, p. 236, who describes this as
an “astonishing” feature of state practice.
102 Ybk ilc, supra note 40, 35, paras. 2 and 5 (Mr. Brownlie).
103 Ibid., 54, para. 3 (Mr. Elaraby).

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Charter.104 The question is therefore whether the use of third-party counter-

measures would also in practice interfere with or otherwise undermine the
effective application of Security Council measures adopted under Chapter vii
of the UN Charter.
There are only few examples of actual conflict between the use of third-
party countermeasures and Security Council measures adopted under Chapter
vii of the UN Charter.105 It suffices here to consider one of the most illustrative
examples of state practice, that is, the countermeasures adopted against Sudan
from 1997 and until present. The measures taken against Sudan form part of
one of the few instances of practice in which third-party countermeasures
were not only adopted concurrently with Security Council measures but also
maintained in force alongside one another on a relatively long-term basis.106
The Security Council first took action against Sudan under Chapter vii of
the UN Charter in 1996, imposing in response to Sudan’s alleged support for
international terrorism a series of travel bans and diplomatic sanctions.107 The
US, considering that the Security Council response was insufficient, adopted
measures of its own against Sudan in 1997 in the form of a trade embargo and
the freezing of assets belonging to senior members and officials of the Suda-
nese government.108 The rationale for these measures was considerably broad
and took into account Sudan’s “continued support for international terrorism,
ongoing efforts to destabilise neighbouring governments, and the prevalence
of human rights violations, including slavery and the denial of religious free-
dom”, as well as the multiple cross-border attacks in the region contrary to the
principles of the non-use of force and non-intervention under the UN and Or-
ganization of African Unity (oau) Charters.109 A few years prior, in 1994, the
European Union (EU) had imposed measures of its own against Sudan in the
form of an arms embargo in response to the serious violations of human rights
and humanitarian law committed in the context of the country’s civil war.110
Given that Sudan was not a party to either the General Agreement on Tariffs
and Trade (gatt) or the World Trade Organization (wto) at the time, the
104 See supra Sections 3.2.1 and 3.2.2.

105 Dawidowicz, supra note 2, p. 257, considering that state practice “provides only a handful
of genuine examples of potential conflict”.
106 Ibid., pp. 258–259.
107 UN Security Council Res. 1054 (26 April 1996) (S/res/1054). The Security Council later
broadened its sanctions to include an aviation embargo, see Res. 1070 (16 August 2017)
(S/res/1070).
108 The United States, Executive Order 13067: Blocking Sudanese Government Property and Pro-
hibiting Transactions with Sudan (3 November 1997).
109 Ibid.
110 Council of the European Union, Council Decision (cfsp), 94/165/cfsp (1994).

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trade restrictions are unlikely to constitute third-party countermeasures.111

However, the asset freezes are in principle unlawful and require some form of
justification under international law, and are therefore best understood as
third-party countermeasures.112
While the Security Council terminated its limited sanctions regime in
2001,113 the US maintained its measures in force and subsequently broadened
the rationale for these measures in 2004 in response to the alleged acts of geno-
cide committed in the Darfur region.114 The Security Council adopted a resolu-
tion in 2005 whereby it expressed “its utmost concern over the dire conse-
quences of the prolonged conflict for the civilian population in the Darfur
region as well as throughout Sudan, in particular the increase in the number of
refugees and internally displaced persons”, while also condemning the “contin-
ued violations of human rights and international humanitarian law in the Dar-
fur region”. In the same resolution, the Security Council adopted Chapter vii
measures in the form of an arms embargo, travel bans and asset freezes, in ad-
dition to referring the situation to the icc.115 The EU, which had initially im-
posed restrictive measures against Sudan in 1994, merged the new Security
Council sanctions with its existing arms embargo.116 Both the EU and US re-
gimes have remained in force and operated in parallel with the Security Coun-
cil’s 2005 sanctions against Sudan (both of which adopted prior to the 2005
resolution).117 In response to recent developments in Sudan, involving the
excessive use of force and violence against protesters during the course of a
new wave of political protests in the country,118 the US contemplated further or
111 As of September 2019, Sudan is in the process of acceding to the wto. See further
Accessions: Sudan, wto, <https://www.wto.org/english/thewto_e/acc_e/a1_soudan_e
.htm#status>, visited on 5 September 2019.
112 Criddle, supra note 64.
113 UN Security Council Res. 1372 (28 September 2001) (S/res/1372).
114 UN General Assembly, Statement of President Bush, the United States, before the General
Assembly at its 59th Session (A/59/PV.3) (21 September 2004).
115 UN Security Council Res. 1591 (29 March 2005) (S/res/1591).
116 Council of the European Union, Common Position 2005/411/cfsp (2004), and Council
Regulation (EC) No. 838/2005 (2005).
117 Dawidowicz, supra note 2, p. 254. Note, however, that the US lifted three significant com-
ponents of its sanctions regime against Sudan in January 2017, see the United States, Ex-
ecutive Order 13412: Blocking Property of and Prohibiting Transactions with the Government
of Sudan (13 October 2006). In 2015, the Security Council adopted an additional resolution
to regulate separately the regime of sanctions for South Sudan following its indepen-
dence from Sudan in 2011, see UN Security Council Res. 2206 (3 March 2015) (S/res/2206).
118 For an overview of the developments in 2018–2019, and for further references, see Human
Rights Watch, Sudan: Ensuring a Credible Response by the UN Human Rights Council at its
42nd Session, cso’s Joint Letter to the Human Rights Council (2 September 2019), <https://

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strengthened sanctions against Sudan.119 However, a peace agreement was

signed on 17 August 2019, ending years of conflict and potentially calling into
question the continued use of sanctions against Sudan.120
The chronology of measures adopted against Sudan indicates that unilater-
al measures, some of which can likely be understood as third-party counter-
measures, were taken both prior and subsequent to Security Council measures
under Chapter vii of the UN Charter. However, the response to the situation in
Sudan illustrates a clear difference in the scope and rationale for the measures
adopted at the unilateral and institutional levels. In the first resolution adopt-
ed by the Security Council in 1996, the measures were not intended to function
as a collective response to the situation in Sudan, but rather as a more limited
response to Sudan’s alleged support for international terrorism. By contrast,
the 1997 measures adopted by the US (and, though unlikely to be third-party
countermeasures, the EU trade embargo imposed in 1994) operated on a much
broader rationale.121 This is apparent from the broad references to serious vio-
lations of human rights and humanitarian law in the respective decisions to
impose measures against Sudan. The new sanctions regime adopted by the Se-
curity Council in 2005 corresponded much more clearly to the unilateral mea-
sures already in place against Sudan with a broader rationale than those ad-
opted in 1996.
The instances of state practice and the case study of Sudan suggest that
there is no obvious incompatibility in practice between third-party counter-
measures and the Security Council’s Chapter vii measures. In the case of Su-
dan, third-party countermeasures were maintained in force and operated in
parallel to Security Council measures for a relatively long period of time with-
out any conflict arising between them. It is noteworthy that the Security Coun-
cil in this situation did not protest or take any decision to limit the use of third-
party countermeasures, despite clear differences in scope and rationale of
these measures. As such, the alleged incompatibility between third-party
countermeasures and the Security Council’s Chapter vii measures has not ma-
terialised in any meaningful way in practice.
www.hrw.org/news/2019/09/03/sudan-ensuring-credible-response-un-human-rights-
council-its-42nd-session>, visited on 5 September 2019.
119 See P. Zengerle, ‘U.S. to Consider Sanctions in Case of More Sudan Violence’, Reuters, 25
June 2019, <https://www.reuters.com/article/us-sudan-usa/us-to-consider-sanctions-in-
case-of-more-sudan-violence-idUSKCN1TQ2TH>, visited 5 September 2019.
120 The Guardian, supra note 1.
121 Dawidowicz, supra note 2, pp. 258–259.

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4 Conclusions
This article has examined the relationship between third-party countermea-

sures under the law of state responsibility and the Security Council’s enforce-
ment powers under Chapter vii of the UN Charter, in response to breaches of
obligations erga omnes. For these purposes, this article has considered the fol-
lowing questions: (i) What is the relationship between third-party counter-
measures and Security Council measures adopted under Chapter vii of the UN
Charter?, and (ii) what are the implications of this relationship for the right of
states to respond unilaterally to breaches of obligations erga omnes through
resort to third-party countermeasures?
The relationship between the use of third-party countermeasures and Secu-
rity Council measures under Chapter vii of the UN Charter raises complex
questions relating to the coexistence and coordination of two bodies of law,
each serving a distinct purpose in the international legal order. Fundamentally,
it is a question of whether the enforcement of the collective interests of the
international community should take place at the individual or institutional
level. The now substantial body of state practice on third-party countermea-
sures suggests that the right to third-party countermeasures is emerging as a
rule under customary international law, and that the use of such measures is
an increasingly common response to breaches of obligations erga omnes in the
human rights and humanitarian fields in particular. The risks of abuse typi-
cally associated with the use of third-party countermeasures have so far not
materialised in practice; instead, states have exercised considerable caution
before resorting to third-party countermeasures, by responding primarily to
relatively serious and well-attested breaches of obligations erga omnes (some
of which also amounting to breaches of peremptory norms of international
law). Third-party countermeasures have in most cases been adopted in the ab-
sence of effective Security Council measures under Chapter vii of the UN
Charter, which highlights the relationship between these types of measures in
practice. This state practice appears to be accompanied by the required opinio
juris to form a rule under customary international law. If the right to third-
party countermeasures is emerging as a rule under customary international
law, then it is necessary to examine the use of such measures not only in isola-
tion but also in the broader institutional context of responding to breaches of
obligations erga omnes provided by the Security Council under Chapter vii of
the UN Charter.
Currently, neither the arsiwa nor the UN Charter place any limitations on
the use of third-party countermeasures in situations where they are taken
concurrently with Security Council measures under Chapter vii of the UN

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140 Bills
Charter. In general, the provisions of the arsiwa are without prejudice to and
must be interpreted in conformity with the UN Charter, under Article 59 ar-
siwa and with reference to the supremacy clause in Article 103 of the UN Char-
ter. As the supremacy of the UN Charter applies only to obligations arising un-
der conventional international law, it is uncertain how these provisions might
apply to the use of third-party countermeasures, the right to which falls under
customary international law. Those in favour of a more ‘constitutional’ view of
international law have argued that the supremacy of the UN Charter must also
cover rights and obligations arising under customary international law. How-
ever, Article 59 arsiwa does not subsume the law of state responsibility to the
UN Charter, but instead serves to resolve potential conflicts between the two.
Therefore, the rules of state responsibility must continue to apply in situations
where the Security Council has become actively seized with or is taking mea-
sures under Chapter vii of the UN Charter, provided that there is no conflict
between the two.
Although several commentators have applied the analogy to the right of
self-defence under Article 51 of the UN Charter, according to which the right
of states to take third-party countermeasures would be extinguished as soon as
the Security Council has acted under Chapter vii, this seems entirely inappro-
priate given the lack of parallels between the framework governing the use of
force and the right to take countermeasures under the law of state responsibil-
ity. There is nothing in the terms, structure or general spirit of the UN Charter
that would imply any limitation on the use of third-party countermeasures in
situations where the Security Council is also taking measures in response. This
means that the triggering of Security Council measures under Chapter vii of
the UN Charter does not in and by itself end any entitlement of states to third-
party countermeasures. Instead, any limitations on the use of third-party
countermeasures must be considered on a case-by-case basis under the legal
conditions generally applicable to countermeasures under the law of state re-
sponsibility, or follow the Security Council’s decision to this effect.
State practice offers some affirmation that the relationship between third-
party countermeasures and the Security Council’s Chapter vii measures is un-
likely to be controversial or conflicting. The response to the situation in Sudan
over the past two decades serves to illustrate the long-term and concurrent use
of third-party countermeasures and Security Council Chapter vii measures. It
appears that the two regimes operate in parallel without any obvious signs of
incompatibility (in this context, it might be noted that it remains to be seen
how the measures already in place against Sudan will continue to operate fol-
lowing recent developments in the country). The third-party countermeasures
imposed against Sudan were adopted on the basis of a much broader rationale

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than the measures taken by the Security Council in response to the same situ-
ation. For example, the sanctions adopted by the US in 1997 were maintained
in force throughout the Security Council’s first and second sanctions regimes
(adopted in 1996 and 2005, respectively), and operated on a broad rationale
involving serious violations of human rights and humanitarian law. While
based on distinct legal rationales, the use of third-party countermeasures and
Security Council measures share similar objectives, as was clearly the case with
the measures adopted against Sudan. This may explain why the Security Coun-
cil has yet to exercise its own powers to actively limit or exclude completely the
use of third-party countermeasures in any instance of state practice.
Thus, this article has shown that the right to resort to third-party counter-
measures (if such a right can be accepted as permissible under general interna-
tional law) is neither precluded nor subject to limitations as a result of the re-
lationship to Security Council’s Chapter vii powers, when both measures are
adopted in response to the same breach. Instead, third-party countermeasures
may operate concurrently with Security Council measures taken in accordance
with Chapter vii of the UN Charter. In state practice, third-party countermea-
sures do not appear to be obviously incompatible with Security Council mea-
sures, or to interfere with or undermine their effective application. As such, the
relationship between third-party countermeasures and the Security Council’s
Chapter vii powers might best be described as two parallel systems of law,
each providing for the legal consequences arising from the breach of an obliga-
tion erga omnes (insofar as the Security Council interprets this as a threat to
the peace under Article 39 of the UN Charter). In conclusion, it appears that
the relationship between the two is neither as uncertain nor as controversial as
previously thought.122
122 This article is based on the author’s master’s thesis, carried out at Lund University in 2019
under the supervision of Dr. Britta Sjöstedt. The author would like to thank Valentin
Jeutner, Kristian Cardell and Shadi Nilsson for valuable comments and remarks on an
earlier draft of this article.

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NORDIC

nordic journal of international law JOURNAL

89 (2020) 117-141 INTERNATIONAL

The Relationship between Third-party

third-party countermeasures – sanctions – obligations erga omnes – state

On 17 August 2019, Sudan’s opposition coalition and the ruling Transitional

© koninklijke brill nv, leiden, 2020 | doi:10.1163/15718107-bja10003

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by states in the Sixth Committee, a compromise solution was found in the

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permissibility in international law of third-party countermeasures, but builds

2 Third-party Countermeasures in International Law

2.1 Obligations Erga Omnes and the Problem of Enforcement

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the international community as a whole,12 has led to debates on which actors

12 Crawford, supra note 4, pp. 362–363.

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measures necessary to maintain or restore international peace and security

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Chapter vii of the UN Charter can be described as providing a form of collec-

2.2 Third-party Countermeasures in the Law of State Responsibility

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2.2.2 Countermeasures by States Other Than the Injured State in the

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provisions that appeared to implicitly recognise a right to third-party counter-

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i­ntervention of the central organ of the international community”.49 More-

2.2.3 State Practice of Third-Party Countermeasures

49 Statement by Mexico, UN General Assembly, Documents of the Fifty-Third Session, Com-

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as third-party countermeasures, there is little to indicate that states did not

1969, icj, Judgment, para. 176, <https://www.icj-cij.org/files/case-related/51/051-19690220-

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3 The Relationship between Third-party Countermeasures and the

3.1 Third-party Countermeasures and the Security Council

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71 Jansen Calamita, supra note 2.

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3.2 The UN Charter and the Law of State Responsibility

77 ilc, arsiwa Commentary, supra note 8, Article 59, paras. 1–2.

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understanding that legally binding Security Council resolutions override con-

3.2.2 Implied Limitations under the UN Charter

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[the] recourse to the measures provided for in Chapter vii of the UN

93 Jansen Calamita, supra note 2, pp. 1437–1441.

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scope of action to resort to third-party countermeasures in response to breach-

3.3 Do Third-party Countermeasures Interfere with or Undermine

99 Ibid., p. 1439, with further references.

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Charter.104 The question is therefore whether the use of third-party counter-

104 See supra Sections 3.2.1 and 3.2.2.

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trade restrictions are unlikely to constitute third-party countermeasures.111

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strengthened sanctions against Sudan.119 However, a peace agreement was

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This article has examined the relationship between third-party countermea-

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intervention of the central organ of the international community”.49 More-