The “self-help” dilemma

When a right is denied, it is natural to turn to the authority that is the source of that right in the expectation that it will be enforced. When that expectation is not met, there is moral force to the argument that those aggrieved by the failure should themselves be allowed to enforce their legal entitlement as best they can.

In international law, the issue of the legality of countermeasures and self-help arises when, a state having refused to carry out its legal responsibilities and the international system having failed to enforce the law, another state, victimized by that failure, takes countermeasures to protect its interests. “Its interests” in this context denotes the peaceful enjoyment of rights accruing to a state, of which it is deprived by the continuing wrongful acts of another state. It may also be, however, that the notion of a transgressed state interest has expanded to include not only violations of its rights as a sovereign, but also of rights held derivatively as a member of the international system. Thus, for example, every state may enjoy the right erga omnes not to have the earth's “commons” – the seas, the air – polluted in violation of globally applicable norms. Along similar lines, every state may have a right to act to prevent a genocide that, even if not directed at its own people, violates the treaty-based common conscience of humanity.