i-law

Lloyd's Maritime and Commercial Law Quarterly

BOOK REVIEW - THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN INTERNATIONAL LAW

THE LEGALITY OF NON-FORCIBLE COUNTER-MEASURES IN INTERNATIONAL LAW by O. Y. Elagab, B.A., LL.M., D. Phil., Advocate, Senior Lecturer in Law, Ealing College of Higher Education. Clarendon Press, Oxford (1988, xxix and 221 pp., plus 19 pp. Appendices and 13 pp. Index). Hardback £27.50.
One of the difficulties found by lawyers trained in municipal law when they encounter international law is the lack of the effective third party enforcement mechanisms that characterize national legal systems (and, even now, some supranational ones like that of the European Community). The absence of such mechanisms in the international community gives particular importance to states’ own appreciation of the legality of their actions and of those of other states, and to self-help in the form of reprisals or threats of reprisals as means of securing respect for international law. It thus seems surprising that Dr Elagab’s book should be only one of two (the other also being a recent monograph), to look closely at countermeasures—or peaceful reprisals—in international law and to try to elaborate some general principles as to their legality. Elagab confines himself to non-forcible counter-measures, by which he appears to mean measures not involving the use of armed force. Much of what he discusses involves the application of force to individuals: expulsion of aliens, seizure of assets and so on. This type of measure is clearly of direct concern to commercial operators, whose foreign interests and investments may well be the lever through which an effective countermeasure is designed to operate.
Elagab’s book is a scholarly monograph based on his Ph.D thesis. While commercial lawyers may not wish to follow his systematic and painstaking reconstruction of state practice in this field, they will surely benefit from the succinct conclusions which terminate the substantive chapters covering such issues as the requirement of prior breach of international obligations as an essential condition for legal counter-measures, the relevance of purpose to the legality of such measures (pp. 62–63), the necessity for legal counter-measures to be preceded by a demand for redress (pp. 77–79), the requirement that counter-measures be proportional to the breach (pp. 93–95), counter-measures in the law of treaties (pp. 163–164) and the legality of counter-measures in cases where the parties already have a prior commitment to resort to peaceful settlement of disputes, as is common within international institutions like GATT and the European Community (pp. 188–189). Other substantive chapters, less easily summarized, consider a variety of collateral constraints on the legality of countermeasures and address the question of the legality of economic coercion in general. On this last topic, Elagab opines that, while there is a tendency in the international community to seek to restrict the operation of economic coercion, there is as yet no ground for holding it illegal. This is a point of considerable importance to his thesis, given his general argument that counter-measures which satisfy the tests he identifies are fully legal. Since most, if not all, non-forcible counter-measures will be in the nature of economic coercion, broadly defined, a prohibition of economic coercion would leave little scope for the operation of this well-established mechanism of international relations.
Elagab offers a wide range of modern and older examples of state practice to support his general propositions, and commercial lawyers who find themselves involved in international disputes like the U.S./Soviet pipeline embargo will find here a ready source of practical reference. For such purposes the book could have been made easier to use: footnote cross-references are to chapter sections rather than pages, which means a detour through the con

290

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2025 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.