Keith Mack
International law, also known as public international law and the law of nations, is a set of rules, norms, and standards that guide the behaviour of states and other actors in their mutual relations. While international law is widely recognized, there is no universal authority to enforce it, and nation-states are sovereign and cannot be coerced in the same way that individuals can. This raises the question of how international law can be enforced. Enforcement mechanisms include the United Nations Security Council, which can approve peacekeeping missions, impose sanctions, or authorize the use of force, as well as domestic courts, international organizations, and pressure from other nations.
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What You'll Learn
The role of the United Nations Security Council
The United Nations Security Council (UNSC) is one of the six principal organs of the United Nations (UN) and is the premier global body for maintaining international peace and security. It has 15 members, each with one vote, and is the only UN body with the authority to issue resolutions that are binding on member states.
The UNSC's powers, as outlined in the United Nations Charter, include establishing peacekeeping operations, enacting international sanctions, and authorizing military action. Under Chapter VI of the Charter, the Security Council may investigate any dispute or situation that might lead to international friction or give rise to a dispute. If the Council determines that the situation could endanger international peace and security, it may recommend appropriate procedures or methods of adjustment, though these recommendations are generally non-binding.
Chapter VII of the UN Charter empowers the Security Council to take more assertive actions in situations that are out of hand or threaten to be. These actions include imposing sanctions or authorizing the use of force to maintain or restore international peace and security. The Security Council may also authorize member states to "use all necessary means to restore international peace and security". For example, the Security Council authorized the use of force in Libya in 2011 after the Arab League called for a no-fly zone, which the North Atlantic Treaty Organization (NATO) then executed.
The UNSC's enforcement powers are troublesome to many UN member states because of its five permanent, unelected members (China, France, Russia, the United Kingdom, and the United States), who can veto any substantive measure. This has led to calls for reform of the Security Council to better meet twenty-first-century challenges. One proposal suggests shifting UNSC membership and veto power from individual states to sovereignty-pooling organizations like the European Union (EU).
In summary, the United Nations Security Council plays a crucial role in maintaining international peace and security by investigating and resolving disputes, imposing sanctions, and authorizing the use of force. However, its effectiveness is sometimes limited by the conflicting political agendas of its members and the veto power of its permanent members.
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International law and domestic courts
International law is enforced primarily through domestic courts, which apply international law in around 70 jurisdictions worldwide. Treaties are enforced by domestic courts as other domestic laws would be. Most nations have some doctrine that treaties are either self-enforcing as part of domestic law upon ratification or are enacted into statute by the legislature alongside ratification.
The International Court of Justice (ICJ) decides disputes between individual nations, but it has limited scope and no direct power to enforce its decisions. The Security Council of the United Nations is also empowered to enforce international law through sanctions, peacekeeping operations, or formal censures. However, the permanent members of the Security Council—China, France, Russia, the United Kingdom, and the United States—often stand in the way of action being taken against them or their allies.
The Oxford ILDC online database provides an extensive collection of domestic court decisions that apply international law, offering valuable insights for scholars and practitioners. This database includes carefully selected cases with background information, commentary, and translations of key decisions. The ILDC Casebook, authored by renowned experts in international law, delves into the theories and doctrines that govern the application of international law by domestic courts. It highlights the crucial role of domestic courts in the evolution of international law.
International law sets out clear consequences for violations. When a state violates international law, it must immediately cease the unlawful conduct and provide guarantees to prevent recurrence. Reparations, including material and moral damages, are also required. Third states are obligated to ensure respect for international humanitarian law and cooperate to end violations.
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Compliance and enforcement
International law is enforced through various mechanisms, including domestic courts, international organisations, and the United Nations Security Council. Treaties ratified by nations are enforced by domestic courts as part of their own laws. Nations also enforce international law by adhering to the decisions of international organisations they participate in.
The United Nations (UN) plays a crucial role in upholding international law. The UN Security Council can approve peacekeeping missions, impose sanctions, and authorise the use of force to maintain international peace and security. However, the Security Council's enforcement powers are controversial due to the dominance of its permanent members (China, France, Russia, the UK, and the US) and their veto power.
In cases of serious breaches of international law, peremptory norms, or "internationally wrongful acts", states have obligations to cooperate to end the violation and ensure respect for international humanitarian law (IHL). Third states aiding or assisting violations are also in breach of international law.
Economic incentives and disincentives are another form of enforcement. Organisations like the International Monetary Fund and the World Bank can withhold benefits from uncooperative members, although this is used sparingly. Similarly, other nations can pressure non-compliant states through trade sanctions, travel restrictions, or diplomatic actions. Ultimately, compliance with international law is influenced by a combination of these factors, with the primary enforcement mechanism being internal enforcement by sovereign states.
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The power of sanctions
International law is often perceived as unenforceable due to the absence of an international counterpart to local law enforcement officers. However, the United Nations Security Council, acting under Chapter VII of the UN Charter, has emerged as the most prominent mechanism for enforcing international law. The Security Council is empowered to enforce international law through sanctions, peacekeeping operations, or formal censures.
Sanctions are political and economic decisions employed as diplomatic tools to protect national security interests, uphold international law, and address threats to international peace. They are typically imposed on states or organizations and involve the temporary imposition of economic, trade, diplomatic, or cultural restrictions. These restrictions are lifted once the security concerns have been addressed or when no new threats arise.
The UN Security Council has a mandate to apply sanctions that all member states must comply with. These sanctions are designed to force compliance with international law and contain threats to peace within geographical boundaries. For example, the sanctions imposed on Iraq after its invasion of Kuwait included an embargo and naval and air blockades to prevent armed conflict and compel recognition of Kuwait's sovereignty.
In addition to the UN, individual states or international organizations may also impose unilateral sanctions outside of the UN framework. These sanctions are based on subjective foreign policy choices and may pursue various purposes, including punishment. For instance, the US has frequently employed sanctions, such as cutting economic and trade relations with Cuba, although this was unsuccessful due to Cuba's alternative international relations.
While sanctions can be a powerful tool for enforcing international law, they must be exercised with caution to avoid violating international law themselves. For example, sanctions on civilian goods or medical devices could breach international human rights obligations. The effectiveness of sanctions can also be limited by factors such as political connections that allow sanctioned individuals to evade restrictions.
Despite these limitations, sanctions remain a crucial mechanism for enforcing international law, particularly in situations that threaten international peace and security. They serve as a peaceful means to prevent, manage, and resolve conflicts between nations.
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International law and state sovereignty
Sovereign states are bound by the treaties they ratify and the decisions of international organisations they participate in. Customary international law, a disputed concept, suggests that certain customs bind all states, even those not formally acknowledged or established by treaties. These sources of international law are enforced differently, primarily through internal enforcement by states themselves. Treaties are enforced by domestic courts, and states may also choose not to act due to the potential consequences of violating international law.
These consequences can be concrete, such as trade sanctions, travel restrictions, or diplomatic repercussions, or they may be more general, impacting a state's credibility and ability to engage effectively with the international community. For instance, a state that violates international law may face punitive measures from a bloc of aligned states, as seen in the Iran nuclear deal, where automatic punishments were included for breaches.
Additionally, the United Nations Security Council plays a crucial role in enforcing international law through sanctions, peace-keeping operations, or formal censures. However, the Council's enforcement powers are controversial due to the dominance of its five permanent members (China, France, Russia, the UK, and the US), who can veto any substantive measure. This lack of representation and potential for veto power to obstruct action has led to alternative mechanisms, such as General Assembly Resolution 377, which allows the General Assembly to act when the Security Council fails to do so.
While the International Court of Justice (ICJ) decides disputes between nations, its scope is limited, and it lacks direct enforcement powers. Ultimately, the enforcement of international law relies on the collective efforts of sovereign states, their adherence to treaties and international obligations, and the influence of international organisations like the UN and ICJ.
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Frequently asked questions
International law is enforced by domestic courts as other domestic laws are. Treaties are enforced by domestic courts, and nations also internally enforce international law.
If a state violates international law, it must immediately stop the unlawful conduct and offer guarantees that it will not repeat the conduct in the future. The state must also make reparations for the injury caused, including material and moral damages.
The UN Security Council enforces international law through sanctions, peacekeeping operations, or formal censures. The Security Council can also approve the use of force to restore international peace and security.
There is no standing body of international law enforcement officers, and little political support for creating one. The UN Security Council, which has the power to enforce international law, is also criticized for not being a representative body, as it can be blocked by any of its five permanent members.
The consequences of violating international law can be concrete, such as trade sanctions, travel restrictions, or breaking diplomatic relations. They can also be general, such as a loss of credibility and the state's ability to engage with the international community.
