Chasing Hamlet's Ghost: State Responsibility and the Use of Countermeasures to Compel Compliance with Multilateral Environmental Agreements

AuthorRobert K. Omura
PositionLL.M. Candidate, Faculty of Law, University of Calgary; LL.B., Dalhousie; M.A. (History), Calgary; B.A., Calgary; Member of the Law Society of Alberta
Pages86-113
86 wAPPEAL VOLUME 15
ARTICLE
CHASING HAMLET’S GHOST:
STATE RESPONSIBILITY AND THE USE OF
COUNTERMEASURES TO COMPEL
COMPLIANCE WITH MULTILATERAL
ENVIRONMENTAL AGREEMENTS
By Robert K. Omura*
CITED: (2010) 15 Appeal 86-113
Even if you are on the right track, you will get run over if you just sit there.
– Will Rogers
ou shalt be both the plainti and the judge of thine own cause.
– William Shakespeare
INTRODUCTION
e past twenty years have witnessed an explosion in the number of international instru-
ments dealing with the environment. From climate change to biological diversity and from
the protection of endangered species to the restriction of the transboundary movement of
hazardous wastes, the length and breadth of international environmental law is its own
topic, one that includes a variety of multilateral-, regional-, and bilateral-agreements as
well as their compliance regimes. How eective are these regimes in compelling compli-
ance? And more so, where a compliance regime cannot eectively compel a non-compli-
ant party to perform its legal obligations is there recourse to the Law of State Responsibility
and to the use of countermeasures?
is paper examines the interaction between the Law of State Responsibility, as explained
by the International Law Commission’s (“ILC”) Dra Articles on the Responsibility of States
*LL.M. Candidate, Faculty of Law, University of Calgary; LL.B., Dalhousie; M.A. (History), Calgary; B.A., Calgary;
Member of the Law Society of Alberta. I wish to thank the Alberta Law Foundation for its generous f‌inancial
assistance in support of my primary research with respect to brownf‌ield liability regimes. The views expressed in
this paper are my own and any errors or omissions remain my own.
APPEAL VOLUME 15 w87
for Internationally Wrongful Acts (“Dra Articles”) and Multilateral Environmental Agree-
ments (“MEAs”). In particular, I am interested in the role of countermeasures in com-
pelling compliance, where the compliance regime of a MEA has failed. is paper will not
address the legal consequences for provable environmental damages to an injured state,
but will focus instead on the thorny issue of the collective interests of non-injured states.
It will also not address regional- or bilateral-agreements, and the host of legal consequences
that arise under those mechanisms.
Every breach of a norm of international law by a state, whether from treaty, custom, gen-
eral principle of international law, or other source of law, gives rise to state responsibility and
legal consequences. But when is an act or omission of a state a breach? To this end, a num-
ber of international instruments attempt to codify norms of international law. For treaties,
the Vienna Convention on the Law of Treaties(“VCLT”) sets out the basic rules of treaty in-
terpretation and operation. In the case of state responsibility, the Dra Articles adopted by
the UN General Assembly in  codies the principles of state responsibility for breaches
of the norms of international law and the legal consequences that ow therefrom.
is paper will show that recent developments in international law restrict the role of legal
consequences of general application when a state fails to full its obligations under a MEA.
ese legal consequences, codied in the Dra Articles, may include the use of counter-
measures. A countermeasure, or reprisal, is a form of self-help by a state in international
law aimed at restoring the status quo between the parties where there is a material or less-
than-material breach of a treaty.
While not foreclosing the possible use of countermeasures, the limitations inherent in cur-
rent MEAs and the restrictions posed by the Dra Articles make the use of countermeasures
unlikely, except in the case of persistent and egregious breaches of international duties. It is
more likely that the use of countermeasures will most oen be ruled out by the compliance
regimes employed under most MEAs, and restrictions on countermeasures under interna-
tional law will prevent their use in most other situations. us, similar to the moral dilemma
portrayed in Shakespeare’s Hamlet, retribution or reprisal have their own costs. It may place
an aggrieved party “oside” at international law, making the enforcement of international
environmental norms dicult to achieve. For many breaches of international environmen-
tal norms, the existing compliance regime represents a “complete code” and if the regime
provides no remedy an aggrieved party may have no adequate solution except to “take arms
against a sea of troubles” and hope that their conduct is considered reasonable.
1. ILC, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International
Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc.
A/56/10 (2001) chp. IV.E.1. [Draft Articles].
3. It is important to note that the Draft Articles are not law in the sense that they have not been adopted by states
or even the UN General Assembly. Although not law, as one scholar notes, “the general concept ref‌lects the
shared opinion of the international community of States”: see Karl Zemanek, “Does the Prospect of Incurring
Responsibility Improve the Observance of International Law?” in Maurizio Ragazzi, ed., International
Responsibility Today, Essays in Memory of Oscar Schachter (Leiden, Nld.: Martinus Nijhoff, 2005) 125 at 126.

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