"[1][3] Chapter V of Part Two of the ARSIWA describes six circumstances, if any of which is present, will preclude the wrongfulness of conduct that otherwise would render the state liable for breach of an international obligation.
[1] Without access to countermeasures as an enforcement action, third party states would be limited to those remedies available under Article 48, which would be to make claims for cessation of the internationally wrongful act, and for non-repetition and/or reparation,[7] but they would not be able to wield more potent weapons, such as the freezing of funds in their possession, since this would not be protected by Article 22 from charges of wrongfulness, as legitimate countermeasures are.
[11][12] Some legal analysts believe that since Russia defied the International Court of Justice order that the "Russian Federation shall immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine", third-party states are entitled for that reason to take countermeasures in order to bring Russia into international compliance.
Some legal analysts believe that it is not (though it arises from a breach of one),[12] while others say that it may not be,[13] rendering dubious the legitimacy of countermeasures by third party states to enforce an obligation to pay reparations.
[14] On the other hand, other legal analysts have presented arguments in favor of the legitimacy of countermeasures by third party states "aimed at stopping the ongoing failure to meet the obligation to make reparations".
An article in Foreign Policy points out that the purpose of a countermeasure is to induce compliance with international law and not to act as punishment for violations.
[14][18][19][20] In September 2023, the Renew Democracy Initiative (RDI) released a report[21][22][23] (lead author Laurence Tribe) which asserted that, with respect to the confiscation of Russian assets, the countermeasure being taken is a suspension of the sovereign immunity that Russia normally enjoys.
"[23] However, the Stanford Law Review article claims that the comments to the ARSIWA show that the term "as far as possible" "does not create a loophole" to justify irreversible measures, but requires a state having a choice as to which countermeasure to implement, to choose one that is reversible.
[14] On the other hand, some analysts claim that confiscating just the income or interest on the frozen funds would not violate the requirement that countermeasures be reversibile.