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August 8, 2004

Punishment for the Violation of International Law

Kamrul Hossain

If someone parks his car in a wrong place, he receives a fine as punishment for the violation of the specific rules concerning road and traffic laws. If someone does some criminal offence, he is punished with imprisonment in accordance with the criminal and penal code under the municipal legal system. But what happens if a State (the subject of international law) violates the rules of international law? In municipal legal system, law is enacted by the parliament where it is assumed that people's opinions are reflected as widely as possible. For instance, I pay the fine for not parking my car in the right place because I agreed to that behaviour through my consent (delegated to the MPs elected, who enacted the legislation). If in any case I decline to pay the fine, there is a system of adjudication where I maybe held responsible; there is also the existence of law enforcement body to implement the law if I am defiant. All these work under the command of a sovereign authority. That is the reason why Austin defined law as command of the sovereign backed by threat (of punishment).

Construction of international law, however, cannot be defined as such. Despite the absence of central legislative body in the form of compulsory law making authority, consent is yet the basic elements in international law making, either it be the custom or treaty, which is identical in the municipal legal system as well. The States conclude bi-lateral or multi-lateral treaties to which they consent to some form of particular behaviour. Any infringement of the rules set out in the treaties (or in customary principles constitutive of opinio juris) constitutes breach of legal obligation. There is, nonetheless, no compulsory judicial body; nor is there a central law enforcement authority for the implementation of international law. A case maybe referred to International Court of Justice only if the States concerned are the parties to the Statute of the Court, or the parties may themselves agree to take the particular dispute to the Court for the legal opinion. Then again, parties may disregard the opinion of the Court. The Court does not have compulsory jurisdiction over a dispute unless parties have agreed so beforehand. So in principle there is no compulsory law enforcing authority for the implementation of international law even when a breach of obligation is found. As a result the first question always asked about international law is, how come it be a law when it cannot be enforced?

To some experienced international lawyers this is the dilemma of international law, whereas others argue this as a process, which is being developed each and everyday. According to the later, enforcement is not essential in international law. Judge Higgins says that question of the enforcement of international law is unnecessary if every State is concerned about its duty to obey the rules of international law. The reality is, however, different. There are States who plays on their own political interests while disregarding the law's requirements. When these interests are not at stake legal institutions function best for example, creation and performance of ordinary treaties regarding tax or commercial treaties, or compliance with "rules of the road" set by the International Maritime Organisation or International Civil Aviation Organisation for safe navigation at sea or in the airspace above the high seas. Rules of this sort tend to be self-enforcing, simply because all the actors recognise that it is in their self-interest to comply if they want other actors to comply.

There are also critical issues involved in international law where some sort of enforcement mechanism is indeed essential. In reality we evidence uncountable number of disputes at the international level everyday. Despite the political nature of the most of the disputes, deviation from the legal obligation is also apparent, which requires justice to be done. But justice in international law is to some extent relatively unlikely since politics mainly control the law. Since States act horizontally in absence of vertical legal system at the international level, the powerful States mostly dominate the whole system. Therefore, punishment in international law at some point is still based on reprisal or counter measure. I will talk about that later. But first, I intend to say few wards about the settlement of disputes.

Peaceful settlement of a dispute has always been preferred in international law. This includes - as is embodied in the Charter of the United Nations, and has been followed traditionally as well mediation, conciliation, good-office, negotiation, judicial settlement and so on. There have been numerous examples of the settlement of disputes by pacific means. Sometimes innovative approaches have been invented. For example, Algiers Declaration has set forth a new method of obligatory dispute settlement by means of the establishment of the Iran-US Claim Tribunal. The Tribunal was established for mainly the settlement of the financial claims. There are, however, plenty of other issues where peaceful settlement is unlikely to be invoked. The first option other than counter measure is in present days to raise the issue before the international or regional organisation. Some form of financial sanctions maybe imposed by those organisations against the State in breach of its obligation. At some extreme point the Organisation may suspend the membership of the State, or expel it from the organisation, as could occur in the United Nations under certain circumstances set forth in article 5 and 6 of the Charter. Sometimes condemnation, or "mobilisation of shame" has been the punishment in international law. The sought of apology is also regarded as proper satisfaction for the breach of legal obligation. This has recently happened when Iran captured some seven royal soldiers of the UK in its territorial water in the Persian Gulf. An acknowledgement that soldiers mistakenly entered the Iranian territorial water with no intention to cause any threat to Iranian sovereignty has been the proper apology, and was accepted as satisfaction to the Government of Iran. Yet, all these are non-forceful manner, and a State may remain still defiant.

As a result, exécution forcée, i.e., forcible execution in international law has been the traditional means of punishment. Coercive measure such as this is taken by an individual State or by a group of States outside the determination and a decision by a legally competent social organ, whatever the label it is given (war, reprisal, counter-measures, quarantine, humanitarian intervention, etc.). This is so-called "self-help" or "private justice", the legality of which is confined to the very narrow limits within which remnants of "self-help", and is still admitted in contemporary international law. The recognition of such behaviour is found in the United Nations Charter under article 51, which is, however, limited to self-defence against an armed attack, or to some against an imminent armed attack. This has now further developed as pre-emption or anticipatory self-defence through the emergence of "Bush Doctrine", which as a matter of fact, is external to international law, and has attracted a lot of criticism. Despite the legality of such action is questionable, it is as is apparent treated as punishment in international law.

A legal method to employ sanctions in international law is not, however, far from being in existence. Sanctions, either military or non-military, can be formulated as "coercive measures taken in execution of a decision of a competent social organ, i.e., an organ legally empowered to act in the name of the society or community that is governed by the legal system." The Security Council of the United Nations is an organ such as this, that can legally invoke sanctions as punishment in international law. Chapter VII of the United Nations Charter empowers the Security Council as a competent legal organ that may enforce international law; and measures (use of force or economic sanctions) taken by the Council are binding to all States in general. At least at this point international legal system works vertically. Yet, all the Security Council's actions must be preconditioned by the determination of the existence of threat to international peace and security. To some this formulation has been drawn only to mean war or military confrontation. It has been, nonetheless, found throughout the years that not only a military conflict, but also any violation of international rules of conduct may threaten international peace and security. The Security Council is the central body to enforce peace once it is threatened. In other words, the Security Council can legally provide punishment for the violation of international law through its sanctions mechanism under Chapter VII of the Charter.

Kamrul Hossain, Research Fellow of International Law, University of Helsinki.