Countermeasures and self-help in international law: hermeneutic and phenomenological contours

Abstract

In the context of the theory of countermeasures and self-help in international law, this Article puts forth a working hypothesis by which it is asserted that breach and non-compliance are different notions when state behavior is inspected from a phenomenological and hermeneutical perspective, which seeks to dissect what the State motivations are, examine what implies a real benefit for them and, ultimately, makes law (ought) and politics (power) concur. In order to make our hypothesis evident, several conceptions are resorted to, from those called functionalist to those called pragmatic, also taking into account intermediate stances labeled as procedural or formalist. The conclusion, which seems to be counterintuitive, is that international law is materialized in the context of countermeasures, even if on certain occasions its precepts are breached or not complied with.