10 - Secondary Sanctions, State Responsibility and Grave Breaches of Jus Cogens Norms

Summary

The prohibition of the threat or use of force, enshrined in Article 2(4) of the Charter of the United Nations, is the most important principle in the charter, and the need for international solidarity through the collective action of third states is of the utmost importance when a flagrant violation of that principle occurs. After briefly introducing the case study of the 2022 Russia’s aggression against Ukraine, this chapter analyses whether the current customary legal regime on international responsibility provides for any legal obstacles precluding indirectly injured states from adopting secondary sanctions. In particular, the chapter analyses the use of the concept of ‘lawful measures’ in Articles 41(1) and 54 of Articles on the Responsibility of States for Internationally Wrongful Acts. It also considers that the collective system of the United Nations should be conceived, according to these same provisions, as the preferred framework for cooperative action. The chapter finally argues that when the unlawful use of force reaches the level of an act of aggression third states that are indirectly injured should be able to react through secondary sanctions. These measures, if adopted when the United Nations Security Council is deadlocked, should be considered as lawful because their objective is to remedy the wrongful non-compliance of third states with collective obligations arising from a serious breach of jus cogens norms by the aggressor state.