Rytis Satkauskas, Associate Professor, Mykolas Romeris University, Vilnius, Lithuania.
State dignity: this is probably as far as we can go in transposing concepts of domestic law to international relations. Or is it too far? An insult to a sovereign, combined with a well nurtured nationalism, is not unknown as cause for war, or rather an excuse for starting one. In human society, an insult corresponds to provocation, providing moral justification to respond with an assault and in some jurisdictions even leading to mitigation of punishment or an acquittal. Rising nationalism and increasing questioning of international order gives good reason to look at the notion and ways of addressing an international insult.
Countermeasures and One’s Right to Blame
The Chinese Foreign Ministry spokesperson called the recent EU decision to enact restrictive measures over human rights abuses against the Uyghur minority in the Xinjiang region a “slander and an affront to the reputation and dignity of the Chinese people”. “I admonish them that they should not underestimate the firm determination of the Chinese people to defend their national interests and dignity, and they will pay the price for their folly and arrogance”, he added. Responding to this “attack against national sovereignty and dignity” China adopted its own sanctions, to “resolutely safeguard national sovereignty, dignity and core interests and oppose Western hegemonism”. As it was put then: “China cannot accept that, and it has the right to take legitimate and necessary reactions.”
In terms of international law, all the political poetry of the declarations removed, the situation may look like a classical countermeasure: an act illegal in itself, which becomes legal when executed by one state in response to the commission of an earlier illegal act by another state towards the former. Countermeasures however are illegal if the initial act was not in violation of international law.
When the sanction itself is based on a legitimate purpose to induce the compliance with international obligation, further unilateral escalation does not add legality to the initial wrongdoing, instead they result in another breach of international law. The arguments of the two sides above are self-explanatory. While the EU is claiming implementing (within its own jurisdiction) of measures, mandated by the United Nations Security Council, or adopted autonomously with a purpose of promoting international peace and security, supporting the rule of law and human rights, the Chinese response is officially justified by “national interest and dignity”.
In international law, countermeasures are not related to insult and dignity. ILC Articles on Responsibility of States for Internationally Wrongful Acts (celebrating in 2021 their 20 years of impact) make it clear that countermeasures must be (1) proportionate, (2) non-forcible, (3) directed at the responsible State and not at third parties, (4) instrumental (taken with a view to procuring cessation of and reparation for the internationally wrongful act and not by way of punishment), (5) temporary in character,, (6) reversible as far as possible in their effects, (7) proportionate, and (8) must not involve any departure from certain basic obligations in particular those under peremptory norms of general international law, including protection of human rights. Besides, (9) the countermeasures cannot affect any dispute settlement procedure, (10) can not impair diplomatic or consular inviolability, (11) must be preceded by a demand by the injured State, accompanied by an offer to negotiate, and (12) must be suspended if the dispute is submitted in good faith for peaceful settlement with the competent authority.
Regarding the positions of the EU, US, UK and Canada, it must be recalled that in instances where the Security Council is unable to take action in response of mass atrocities or breaches of peremptory norms of international law, especially where such breaches are documented by independent international mechanisms and where no effective recourse to international settlement is available, states have the right and duty to use diplomacy and measures within their own jurisdiction, including sanctions (see useful policy analysis by Alex Bellamy).
Sovereignty and Aggression
In a very similar reaction to the EU’s pinpointing of widespread repression, violence and imprisonment of some 534 political opponents, Belarus’ outlawed president Alexander Lukashenko threatened to use Belarus territory for illegal migration and drugs trafficking after having unilaterally suspended the readmission treaty with the EU. Lukashenko’s arguments refer to the war-like situation and duty to protect the sovereignty of the country, allowing, allegedly, to establish a new illegal migration route by air bridge to four Iraqi cities and accompanying thousands of migrants to the EU border.
Russia and China and other guardians of the Westphalian Galaxy defend the traditional notion of sovereignty, understood as the right of exclusive political authority over a particular geographic area, as the guarantee of international peace and security. They base their argument on the UN Charter which in its Article 2(4) explicitly protects the territorial integrity and political independence of “any state”. In their reasoning, the duty to ensure national security includes the obligation to counter the political threats to the regime, including those threatening the image and legitimacy of their autocratic rulers.
It is now generally accepted that anything that negatively affects the physical well-being of the population or jeopardizes the stability of a nation’s economy or institutions is considered a national security threat, including hostile intentions from foreign governments, war and aggression, terrorism, proliferation, cybercrime or natural disasters. Some international treaties contain exceptions of the performance linked to the national security threats, customary international law doctrines also contain elements of force majeure, necessity, or distress doctrines of law, precluding wrongfulness of a breach of international obligation in emergency (ILC Articles 23 and 25). Understandably, all these exceptions impose justiciable restrictions on the states invocating them.
In its orthodox interpretation, however, Article 2(4) of the Charter covers only physical acts of direct military aggression, protecting state sovereignty against the use of force as defined in the General Assembly Resolution 3314. On the other hand, in modern interpretations, indirect force refers to the technical and organizational interference of a country in international armed conflicts between other countries or within the territory of another country.
Neither the notion of sovereignty or “excuse doctrines” related to national emergency however cover reputational damage to the ruling elite, nor do they measure the lawfulness of their actions by the emotional depth of their protests. These are usually defined by the fact finding missions and independent international bodies.
Quite the contrary, illegal countermeasures might certainly entail international responsibility. Moreover, state practice proves that when a State is “unwilling or unable” to address a perceived threat situated within its borders, a theory of preemptive self-defense or a punitive armed reprisal is applied to justify the use force within that State and sometimes even against it.
The principle of sovereign equality is not a great excuse for the breach of international law. Instead, sovereignty entails the responsibility to implement assumed international obligations and the norms of customary international law. Among them, the duty to protect its own population from atrocities. In the words of Ban Ki-moon “the founders of the United Nations understood that sovereignty confers responsibility, a responsibility to ensure protection of human beings from want, from war, and from repression. When that responsibility is not discharged, the international community is morally obliged to consider its duty to act in the service of human protection.”
Thus, the references to dignity and countermeasures can only be attributed to internal political bargaining and do not relate whatsoever to international law. At least until they serve as a pretext or internal excuse to break it. In the longer term, however, one should not forget that international law is itself the product of complicated consensus among states and evolves as that consensus shifts in response to new circumstances.