With my usual disclaimer about how little I know about international law generally, reading over the "countermeasures" part of the Cargill NAFTA Chapter 11 Award, I was struck by the strange wording that is used to describe the concept. Here's a passage from the Award:
382. The practice of countermeasures as accepted in custom is a measured recognition of the legality of non-forcible self-help in response to a wrongful act. Thus, Article 22 of the ILC Articles on State Responsibility, entitled "Countermeasures in respect of an internationally wrongful act," provides:
The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with Chapter II of Part Three [where the procedural requirements of a valid countermeasure are specified].105
It is in this sense that Respondent submits that the actions at issue were lawful countermeasures precluding such actions from being wrongful acts constituting a breach of the NAFTA.
So the "wrongfulness" of an act that is not in conformity with international obligations is "precluded" if that act constitutes a countermeasure (that is, it satisfies the conditions that countermeasures must meet). But wouldn't it be simpler and clearer to say that a "violation" is "justified" if the act constitutes a countermeasure, or something along those lines? That's all that is meant, right? Is there some reason that "wrongfulness" and "precluded" are used here?
I suppose this is a bit nit-picky, but the language just seems unnecessarily confusing.
