By Math Noortmann
Until eventually lately, the elemental hyperlink among easy thoughts in overseas legislations, specifically the appropriate to self-help and the duty to settle disputes by means of peaceable ability, has been missed in doctrine and perform. the most factor is that foreign legislations commonly acknowledges the proper of states to shield their very own rights by way of resorting to countermeasures in addition to the duty to settle their disputes by means of approved and well-known diplomatic and judicial systems. either techniques are in accordance with their very own benefits, that are assumed to be legitimate in modern overseas legislation. it's the basic objective of this examine to figure out which principles and rules govern the connection among the 2 techniques. The book's significant findings come up from an research of scholarly paintings, supported via examples from 5 varied case stories. Drawing insights from felony in addition to political technology, it will likely be a worthy source for college students, teachers and coverage makers in foreign legislation, diplomacy and similar parts.
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Additional info for Enforcing International Law: From Self-help To Self-contained Regimes
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70 Although state practice and jurisprudence provide us with specific cases and examples, conclusive examples are scarce. Notwithstanding the lack of conclusive examples, the author finds it difficult to maintain that punishment or punitive selfhelp does not exist in international law. A completely different question is whether punishment and punitive self-help should be accorded a proper legal function within the law of state responsibility. Special Rapporteur Arangio-Ruiz is of the opinion that: even if it were to be found that a punitive intent is more or less frequently present behind the decision of injured States to resort to countermeasures, it would be very difficult to conceive the presence of such an intent as more than a factual characterization of the function of selfhelp.
Which function will be the predominant one will depend on the specific circumstances of the case. Arangio-Ruiz recognizes in his fourth report that: The harm inflicted by the countermeasure aimed at obtaining satisfaction seems to be pretty close to a penalty inflicted by the injured state. 50 With regard to the link between arbitration or adjudication and satisfaction, it is interesting that, on some occasions, awards or decisions have been designated as appropriate forms of satisfaction. The most significant example in this respect is the decision of the International Court of Justice in the Corfu Channel case.
L Comm’n 2 (1979): 116. Ago, “Ninth Report on International Responsibility”, reprinted in YB Int. L Comm’n 2 (1) (1980): 56. YB Int. L Comm’n 2 (1) (1980): 53. See de Hoogh, Obligations Erga Omnes, 216. Air Services Agreement case, 337. It has to be noted that the terms “punishment” and “punitive measures” are used in a rather loose way in order to characterize self-help. For example, Dutch newspapers characterize all kinds of measures as “sancties” (sanctions) or “strafmaatregelen” (punitive measures).