Enforcement of international treaties Ibragimov Rauan Gylymov Dinislam Besshtanova Maria Berdibekov Kanysh Koishanov Akjol
INTODUCTION A vast network of international law and dozens of international organizations make globalization possible. Treaties and other types of agreements among countries set rules for international trade and finance, such as the GATT; foster cooperation on protecting the environment, such as the Kyoto Protocol; and establish basic human rights, such as the International Covenant on Civil and Political Rights. Meanwhile, among many international organizations, the United Nations facilitates international diplomacy; the World Health Organization coordinates international public health and protection, and the International Labor Organization monitors and fosters workers’ rights around the world. The scope and authority of international law have thus expanded dramatically during the era of globalization. Historically, international law addressed only relations between states in certain limited areas (such as war and diplomacy) and was dependent on the sovereignty and territorial boundaries of distinct countries (generally referred to as “states”). But globalization has changed international law in numerous ways. For example, as globalization has accelerated, international law has become a vehicle for states to cooperate regarding new areas of international relations (such as the environment and human rights), many of them requiring states to rethink the previous notions of the inviolable sovereign state. The continued growth of international law is even more remarkable in this sense, since states, having undoubtedly weighed the costs and benefits of the loss of this valuable sovereignty, have still chosen to continue the growth of international law.
What are the benefits of international law? Without it, there could be chaos. International law sets up a framework based on States as the principal actors in the international legal system, and it defines their legal responsibilities in their conduct with each other, and, within State boundaries, with their treatment of individuals. Its domain encompasses human rights, disarmament, international crime, refugees, migration, nationality problems, the treatment of prisoners, the use of force, and the conduct of war, among others. It also regulates the global commons, such as the environment, sustainable development, international waters, outer space, global communications and world trade.
With so much conflict in the world, how can this really work? International law does work, at times invisibly and yet successfully. World trade and the global economy depend on it, as it regulates the activities required to conduct business across borders, such as financial transactions and transportation of goods. There are treaties for roads, highways, railroads, civil aviation, bodies of water and access to shipping for States that are landlocked. And as new needs arise, whether to prevent or punish terrorist acts or to regulate ecommerce, new treaties are being developed. .
Does international treaty law impinge on a nation’s sovereignty? To become party to a treaty, a State must express, through a concrete act, its willingness to undertake the legal rights and obligations contained in the treaty – it must “consent to be bound” by the treaty. It can do this in various ways, defined by the terms of the relevant treaty.
How does a state express its “consent to be bound”? A State can express its consent to be bound by a treaty in several ways, as specifically set out in the final clauses of the relevant treaty. The most common ways are: definitive signature, ratification, acceptance, approval, and accession. The three terms ratification, acceptance and approval all mean the same thing, particularly when used following “signature subject to…. ” Member States may use one or another of these terms in their documentation, but in international law they all mean the same thing – that the State has agreed to become a party and thus be bound by the treaty upon its entry into force. Signing a treaty is one of the most common steps in the process of becoming party to a treaty. However, simply signing a treaty does not usually make a State a party, although in some cases, called definitive Fact Sheet #5 signature, it might. A State does not take on any positive legal obligations under the treaty upon signature. Signing a treaty does, however, indicate the State’s intention to take steps to express its consent to be bound by the treaty at a later date. Signature also creates an obligation on a State, in the period between signature and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty. Multilateral treaties contain terms that indicate where the treaty is to be available physically for signing and for what period of time. Multilateral treaties often provide that they will be “open for signature” only until a specified date, after which signature will no longer be possible. Once a treaty is closed for signature, a State generally may become a party to it by means of accession. Some multilateral treaties are open for signature indefinitely. Most multilateral treaties on human rights issues fall into this category, such as the Convention on the Elimination of All Forms of Discrimination against Women, 1979; the International Covenant on Civil and Political Rights, 1966; and the International Convention on the Elimination of All Forms of Racial Discrimination, 1966
How are treaties enforced? There is no over-arching compulsory judicial system or coercive penal system to address breaches of the provisions set out in treaties or to settle disputes. That is not to say that there are no tribunals in the international legal system. For example, the Charter of the United Nations established the International Court of Justice, the principal judicial organ of the United Nations, as a means by which Member States may settle their disputes peacefully, in accordance with international law. The Court can also give advisory opinions on legal questions referred to it by duly authorized international organs and agencies. Member States of the United Nations, in cases to which they are parties, are obliged to abide by the Court’s decisions. However, before a case can go before the Court, a State must have accepted the jurisdiction of the Court, either in general or in relation to a specific case. A State that has not accepted the Court’s jurisdiction cannot be forced to appear before the International Court of Justice.
States may also entrust the settlement of specific disagreements to other international dispute resolution mechanisms established by treaties such as the International Tribunal for the Law of the Sea, the Permanent Court of Arbitration and the dispute settlement bodies of the World Trade Organization, among others. Different treaties may also create different treaty body regimes to encourage the parties to abide by their obligations and undertake actions required for compliance. For instance, the Human Rights Committee monitors the implementation of the International Covenant on Civil and Political Rights; the Committee on the Elimination of Racial Discrimination monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination; and the Committee against Torture monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. The Security Council can also adopt, under Chapter VII, measures to enforce its decisions regarding threats to international peace and security, breaches of the peace or acts of aggression. Such measures may include sanctions or authorizing the use of force.
A treaty may have incorporated into its own text enforcement provisions, such as arbitration of disputes or referral to the ICJ. However, some treaties may not expressly include such enforcement mechanisms. Especially in situations where the international law in question is not explicitly written out in a treaty, one can question how this unwritten law can be enforced. In an international system where there is no overarching authoritative enforcer, punishment for non-compliance functions differently. States are more likely to fear tactics used by other states, such as reciprocity, collective action, and shaming.
Reciprocity is a type of enforcement by which states are assured that if they offend another state, the other state will respond by returning the same behavior. Guarantees of reciprocal reactions encourage states to think twice about which of their actions they would like imposed upon them. For example, during a war, one state will refrain from killing the prisoners of another state because it does not want the other state to kill its own prisoners. In a trade dispute, one state will be reluctant to impose high tariffs on another state’s goods because the other state could do the same in return.
Collective Action. Through collective action, several states act together against one state to produce what is usually a punitive result. For example, Iraq’s 1990 invasion of Kuwait was opposed by most states, and they organized through the United Nations to condemn it and to initiate joint military action to remove Iraq. Similarly, the United Nations imposed joint economic sanctions, such as restrictions on trade, on South Africa in the 1980 s to force that country to end the practice of racial segregation known as apartheid.
Shaming. (Also known as the “name and shame” approach) Most states dislike negative publicity and will actively try to avoid it, so the threat of shaming a state with public statements regarding their offending behavior is often an effective enforcement mechanism. This method is particularly effective in the field of human rights where states, not wanting to intervene directly into the domestic affairs of another state, may use media attention to highlight violations of international law. In turn, negative public attention may serve as a catalyst to having an international organization address the issue; it may align international grassroots movements on an issue; or it may give a state the political will needed from its populace to authorize further action. A recent example of this strategic tactic was seen in May 2010, when the U. N. named the groups most persistently associated with using child soldiers in Asia, Africa, and Latin America (United Nations, 2010)
Conclusion A discussed earlier, international law has traditionally been based on the notion of state sovereignty, but that concept has been breaking down because of globalization. Interactions between states have become more complicated, involving a wide array of issues that require them to give up some of their sovereignty to have effective relations with each other. Similarly, international law has begun to deal with issues traditionally inside the borders of individual states, such as human rights. These developments have become very controversial, however. International law is often criticized for a lack of legitimacy. For example, the law is shaped to a large degree by politics within the international system. An action, though clearly illegal in terms of international law, may go unpunished due to overriding political considerations. Since the UN Charter gives veto authority to five Security Council members, who would presumptively veto any measures to enforce international law against their own state, the legitimacy of an organization with such unequal application of the law must be questioned to a certain degree. When the most powerful players determine the rules of the game, how legitimate can these rules be?
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