The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Contents hide
2 Methods of enforcement of International Law
3 Criticism of the methods of enforcement3.1 Security Council
3.1.1 Enforcement of international law
6.1 [7] Charter of the United Nations, 1 UNTS XVI, United Nations, art. 43.
International law governs the legal relations and conduct of States when dealing with each other – through instruments such as treaties, customs, general principles of law, judicial decisions, and the opinions of the most highly qualified publicists of international law belonging to these states.[1] Even though there are various sources from which international law is derived, its enforceability is regarded as a grey area.[2] International law has been infamously criticized as law without the backing of a sanction,[3] which in effect makes it a non-law for its critics. This paper seeks to analyze whether international law is enforceable, the methods of such enforcement, and any suggestions that could tackle the problems faced currently with enforcement.
In theory, sanctions were used as a form of threat to deter states from violating international norms and regulations.[4] The United Nations Security Council has the power to coerce states that have acted against the United Nations Charter or the judicial pronouncement of the International Court of Justice by either employing military force or economic sanctions.[5] This power given to the Security Council evidences the principle of the charter which substitutes using community force for warranting enforcement, with the actions performed by a group of states to enforce international law.[6]
Article 43 of the UN Charter gives the Security Council the authority to call on member states to provide military forces to carry out armed enforcement of international laws against the defaulting states.[7] Articles 39 and 41 of the UN charter give the Security Council the power to issue sanctions in the form of trade or diplomatic embargos when there is a breach of the charter.[8] Article 94 of the UN charter makes the judgments pronounced by the international court binding upon the parties – a state by virtue of its being a member of the UN is bound to the court’s judgments.[9]
Apart from the UN charter codifying enforcement of international law, there are other agencies and interests that also ensure its enforcement. Legal scholar John Austin regarded international law as being backed by “moral sanctions”, where a state may follow good faith in its conduct with other states out of fear of receiving hostility from other states.[10] A major enforcer of international law, however, is self-interest.[11]
States follow the rules of international law because they are bound to benefit from following these rules in their conduct with one another.[12] These rules are thus called self-enforcing norms.[13] For other types of agencies that do not fall within the UN charter, a state not acting in consonance with international norms may be punished by being suspended or expulsed from the organization, or by disapproving its conduct.[14] Thus, it is evident that international law is very much enforceable and backed by sanctions. However, it is observed that the agencies ensuring the enforcement may not be fair.
As discussed above, in theory, international law is as enforceable as any other domestic law and much of its enforcement seems codified and fair. However, the ground reality of enforcing international law norms on defaulting states has not been carried out fairly. For instance, the Security Council which has the widest powers of enforcing laws on states suffers from a handicap of the veto power.[15] The five member-states of the Security Council can veto any decision that goes against their own interests or that of their allies.
Thus, on the issue of enforcing sanctions on defaulting states, if that state is one of the 5 members of the Security Council or any of their allies, the sanction can get vetoed and the defaulting state can go unpunished for its violations of international law. This makes the Security Council an unfair and unjust agency with the authority to decide to ensure enforcement.
Even the power of the Security Council under Article 43 of the UN charter is now defunct because of the failure of member states in providing armed forces for enforcement.[16] The judicial decisions of the International Court of Justice also do not have any way of enforcement, unless the parties to the proceedings themselves comply with the order.[17] It is the duty of the Security Council to enforce the court’s order, however, one of the members of the Security Council can always veto its decision to enforce the court order.[18] Such an unjust occurrence was witnessed in The Republic of Nicaragua vs The United States of America, where the court awarded reparations to Nicaragua to be paid by the US.[19]
The US, unhappy with the ruling, abstained from participating in the judicial proceedings and also did not allow the judgment to be enforced by the Security Council.[20] Such a precedent is dangerous, especially for developing states that depend on powerful states for their growth. The Security Council also has the option of not intervening with the enforcement of the judgment, thus again rendering the judgment worthless.[21] Hence, the judicial decision of the international court amounts to nothing if it cannot be enforced.
It has been established that the effects of trade and diplomatic sanctions are experienced by defaulting states at a slow rate, if at all.[22] Additionally, the major burden of these sanctions falls upon the most vulnerable sections of the population of the defaulting states.[23] These sections tend to have no influence over the government’s decisions and policies, and nevertheless have to experience the brunt of it.[24] Another method of sanction that has had minimum enforcement in practice is where a state has failed to pay its dues.[25] For example, if a state has failed to pay a certain threshold of its dues to the UN, it loses its vote in the General Assembly.[26] Even though this sanction seems fair and enforceable and has also been apply to defaulting states, it has not been apply consistently and evenly to all defaulting states.[27]
The is evidenced by France and Soviet Union’s refusal to pay their dues in the 1960s, and even after being defaulting states, they were allowed to cast their votes in the General Assembly.[28] Similar to how the loss-of-vote sanction has not been applied consistently and evenly, even sanctions meant to withhold benefits from defaulting states have suffered the same treatment in the UN.[29] Thus, enforcement of international law has been applied unevenly and inconsistently and has also been slow to work wherever it has been applied.[30] The agencies employing these enforcement mechanisms aren’t fair in their conduct and nor are they representative of their member states.[31] Following these facts and circumstances, some suggestions are list below so as to make the enforcement of international just, fair and consistent.
Therefore, international law is a proper law that is enforceable. It is only the methods and agencies of enforcement that are questionable. Through case laws and the functioning of the Security Council, it is evident that even the most powerful international organization suffers from favoritism and is partial to powerful western nation-states, which goes directly against the UN Charter that guarantees sovereign equality to all states.[39] In reality, there are many unjust applications of enforcement laws
that directly impact the developing states in their dealings with the developed west. The suggestions listed in this paper would help make the enforcement of international law simpler, more effective, and also fairer. It has been observe that international organizations will only be fully effective
when states fully submit themselves to the international laws, which can be achieved
when the primacy of law over national will is recognize.[40]
[1]Uphold International Law, United Nations, https://www.un.org/en/sections/what-we-do/uphold-international-law/.
[2] Frederic L. Kirgis, Enforcing International Law, American Society of International Law (Jan. 22, 1996), https://www.asil.org/insights/volume/1/issue/1/enforcing-international-law.
[3]1 John Austin & Sarah Austin, The Province of Jurisprudence Determined 177-178 (J. Murray 2d ed., 1861).
[4] Margaret Doxey, International Sanctions in Theory and Practice, 15 Case W. Res. J. Int’l L. 273, 274-275 (1983).
[5] Thomas Raeburn White, Methods of enforcing International Law: A summary of a paper presented in mid-August at a conference of the International Bar Association at the Hague, 111 World Affairs 157, 157-159 (1948).
[6]ld. at 157-159.
[8]Id. art. 39 & 41.
[9]ld. art. 94.
[10] AUSTIN, supra note 3, at 177.
[11] Supra note 2.
[12]ld.
[13]Id.
[14]Id.
[15] White, supra note 5, at 157-159.
[16]International Law,Justia (Jan. 04, 6:30 PM), https://www.justia.com/international-law/.
[17] Ravi Prakash Kumar, Kulbhushan Jadhav: What if Pakistan refuses to follow International Court of Justice order?Economic Times (Jan. 04, 4:00 PM), https://economictimes.indiatimes.com/news/politics-and-nation/kulbhushan-jadhav-what-if-pakistan-refuses-to-follow-international-court-of-justice-order/articleshow/58611034.cms?from=mdr.
[18]l.
[19] The Republic of Nicaragua vs The United States of America, 1986 I.C.J. 14.
[20]Id
[21]Supra note 17.
[22]Supra note 2.
[23]d.
[24]Id.
[25]Id.
[26]ld.
[27]I.d.
[28]I.
[29]ld.
[30]D.
[31]l.
[32] Michael Bothe, Compliance, Max Planck Encyclopedias of this Law, 46 MPEPIL (2010).
[33]Id.
[34]iD.
[35]i.d.
[36]Alexander Thompson, The Rational Enforcement of this Law: Solving the Sanctioners’ Dilemma, 1 I.T. 307, 319 (2009).
[37]ID.
[38] Syed Ali Akhtar, Do Sanctions Violate International Law?,54 E.P.W. Engage(2019).
[39]Supra note 7.
[40]Josef L. Kunz, Sanctions in International Law, 54 The American Journal of Law 324, 346-347 (1960).
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