NEUTRAL RIGHTS AND COLLECTIVE COUNTERMEASURES FOR ERGA OMNES VIOLATIONS

Abstract

AbstractThe Western response to the Russian invasion of Ukraine has featured remarkable solidarity over diplomatic and sanctioning initiatives. This unity of action, however, has largely not extended to developing or non-Western States. Many such States have, instead, expressed their non-alignment in respect of Western ‘economic warfare’, albeit not infrequently while also condemning Russia's military actions. This article proposes an approach to reconciling the positions of States in different economic, geopolitical and regional/cultural alignments. First, it suggests that current norms on State responsibility do not rule out using collective countermeasures against States accused of erga omnes norm violations, including via sanctions not authorised by the United Nations but rather imposed by coalitions. At the same time, however, it is argued that individual third-party States retain extensive rights to decide whether or not to participate in such initiatives. This autonomous agency can be derived, in part, through the continued applicability of traditional neutrality principles that require all sides to a conflict to respect the status of neutral States. As collective countermeasure initiatives come to be used more frequently in response to global conflicts, the ‘forgotten’ rules of neutrality provide a useful guide for balancing inter-State legal relations.