Le contromisure adottate da Stati non materialmente lesi nel diritto internazionale

Since 2014, many scholars have drawn renewed attention to the subject concerning unilateral coercive measures adopted by States. Due to the annexation of Crimea and to the conflict broke out in the Eastern regions of Ukraine, the Russian Federation has been accused of committing serious breaches of international law. As a response to them, several States, such as the United States, Japan, Australia and the members of the European Union, have adopted so called economic sanctions against Russia, in particular, against Russian officials and enterprises. International practice, far from being limited just to this case, shows how the adoption of economic restrictive measures as a reaction to serious breaches of international law has turned to be a relevant phenomenon in recent years. The object of the present analysis is part of one of the most controversial field in international law: reaction of States against violation of international law and enforcement of international rules. Notably, the international Community is made up of sovereign, equal and independent States and, as a consequence, coercive measures may be implemented only through self-help measures. Such a decentralized reaction system need to be framed in a judicial architecture which seems necessary in order to avoid the primacy of power-based, instead of law-based, relations. Moreover, the complexity of the present subject has increased due to the emergence of the erga omnes obligations which are meant to protect fundamental values and basic principles of the international Community. All States have to comply with this kind of rules, thus entailing an overcoming in the classical bilateral structure of international relations. As a consequence, new questions have been raised by scholars concerning the possibility for States, not directly affected by the wrongful act, of reacting against violations of erga omnes obligations through the adoption of countermeasures. Violations of erga omnes obligations are deeply linked to the most serious breaches of international law which represent a threat to international peace and security and thus to the stability of international relations. This is the reason why it is possible to affirm that the central point this work aims at assessing concerns conditions of States’ reaction “between words and war”. In particular, the present research will be focused on the lawfulness of countermeasures adopted by States not directly affected by the wrongful act in case of violations of erga omnes obligations. Indeed, the solution proposed by the Draft Articles on State Responsibility for internationally wrongful act, adopted in 2001, is deemed to be a compromise not setting out any clear regime. In view of the above, the first part of the work will be focused on the analysis of preliminary concepts considered as fundamental for a comprehensive understanding of the matter, and on the theoretical debate developed by scholars. The second part will be devoted to the exhaustive study of international practice and opinio of States in order to assess the emergence of a new international rule allowing the adoption of countermeasures by all States to enforce erga omnes obligations. The third part will deal with the analysis of possible legal basis other than countermeasures which could justify unilateral coercive measures. The fourth and final part of the work will eventually discuss about the limits of countermeasures, steering the attention at proportionality and protection of economic, social and cultural human rights.