COUNTERMEASURES AND JURISDICTION: BETWEEN EFFECTIVENESS AND FRAGMENTATION

摘要

The doctrinal role of a lawfully taken countermeasure is to serve as a defense (or circumstance precluding wrongfulness) that justifies the reacting State's suspension of its performance of the international obligation owed to the target State. Countermeasures, however, need not be reciprocal. In response to a violation of Treaty A, for example, States may, and often will, react by taking countermeasures suspending performance of obligations under Treaty B. Where both (or one of) Treaty A and Treaty B contains a provision for the compulsory adjudication of disputes, complicated questions of jurisdiction arise. How, for example, is the plea of a non-reciprocal countermeasures defense to be treated by an adjudicatory body of limited jurisdiction, where the basis of the defense is an alleged wrongful act under a treaty over which that body does not have jurisdiction? Or is based upon a similar violation of customary international law? And if the adjudicatory body determines that it is without jurisdiction to consider the countermeasures defense - and therefore it cannot function as a circumstance precluding wrongfulness - how might that affect the ways in which States formulate their countermeasures in the first place?