Enforcement of international law summary

Seminar 1 - Why Do States Obey International Law? The Problems of Compliance and
Enforcement
Foundations

Hugo Grotius 1625

- Pacts are to be respected and fulfilled in good faith
- Pacts: treaties, agreements, covenants pacta sunt servanda
- Between the states
- Why?
Legally and morally binding (rule of the law of nature)
Established by mutual consent: abide by that agreement if you consent
Compliance is generally in stateslong term interest in their own interest to abide by the
agreements
Thomas Hobbes 1651
- covenants without the sword, are but words and of no strength
- where there is no common power, there is no law
- Realist
- What he thinks is necessary to enforce: central enforcement power
- Does he consider international law as really law? No at that time no enforcement mechanism
such as UN
John Austin 1832
- Definition of law: a command given by a Sovereign, backed by the threat of sanctions.
- where there is no common power, there is no law
- Is international law really law?
- Who is going to enforce those norms, no such authority to do so, how are states going to
comply with the rules if there is no mechanism in place
- Definition too restrictive/simplified? Yes Hart
H.L.A Hart 1961
- Criticism on Austins definition
- Legal system is a union of primary and secondary rules
- Primary rules: substantive
- Secondary rules: procedural what is non-compliance of primary rule and what
consequences there are
- Opinion international law: sufficiently analogous to law
- Disagreeing with Hobbes and Austin: no real central power but it is coming close

Discussion

Is international law, law?

Central enforcer? UN not meant to be super state, all states equal
Anything that comes close to it? UNSC it can issue binding resolutions under ch. 7,
peacekeeping operations
- ICJ? Judgments only binding between the two parties who consented.
System of EU might be more effective than mechanism of enforcement of UN e.g. ECtHR,
IACtHR etc.
Why would states comply with IL? Self-interest, reputation in international community

Compliance with international law- theories

 Realism:
- Self-interest
- Assumes an anarchic system: no supranational authority, no enforcement states equal to
each other, they all act in their own self-interest
- States are the most important actors
- States are rational, pursuing self-interest
- States primary concern is survival
What does this mean for compliance? Only act in self-interest

Liberalism
- Cooperation
- State interest is indeed central but it assumes a key role for institutions
- Key role for institutions states best interest to cooperate achieve this through institutions
- They provide a forum for states to pursue their interests
- They shape state preference and policy choices
- They help states to enforce agreements different from realists as they believe that there is
no central power to enforce
What does this mean for compliance? That cooperation is necessary for the world today
especially for enforcement

Constructivism compliance and enforcement

- State interest not fixed but socially constructed is changing depending on social context
what was in states best interest two years ago might not be the same now e.g. climate change
- Norms of international law establish appropriate behaviour of states and guide states in
what is expected conduct is this true? States make norms other way around customary
international law
- States calculate their interests (their interests and what is accepted) according to what is
considered accepted conclude treaties,
- Ex: the role of the Red Cross (NGO) in the adoption of the GCs: states self-interest in
complying with GCs? (realism),
- Ex. The Worlds Banks influence on state attitude to poverty? Their purpose it to ace states to
reduce poverty. Does it change how states think about poverty? In own interest (realism) to
beat economic crisis,
Assignment 1 about three theories
Rational choice theory reading!!
Logical conclusion based on the theories
Convince on anything as long as reasonable
Assignment 2
Trump
Week 5

Reading:

Do treaties change what states do?

- Realists contend that states will not place their security at risk through such agreements and so
comply with them only if they would without the treaty.
- Liberals argue that states form agreements to mitigate international anarchy but that such
agreements face opportunistic defections, making enforcement through reciprocity critical to
compliance with them
- Contructivists believe that shared understandings of proper conduct structure international
politics such that compliance occurs because states have internalized the norms captured in
their agreements, making the norms more important than formal treaties.
Realists give pride of place to calculations of power and interest and believe that such
calculations are rarely affected by international institutions, such as international law. If states
comply with the standard of an international treaty, they do so because it is in their interest
even if the treaty did not exist. Further, existing international institutions mirror the
distribution of power. States may follow the laws of war, but the legal status of the treaty has
no real effect on whether they do. Variations in the domestic political systems of states also
has no effect on whether they comply.
Liberals agree with realists that state calculations of interest are central; however, they believe
that institutions can aid states in enforcing agreements. International law can clarify
obligations, what acts constitute violations, and appropriate responses to violations. Regime
type could influence compliance because democracies are more likely to respect the rule of
law, meaning international law can be enforced through domestic institutions. Liberals do not
believe that compliance is easy, but that naked self-interest can be overcome through effective
institutions.
Constructivists believe that states comply with international obligations because they
internalize the norms underlying such obligations. Socialization to norms trumps calculations
of interest because norms constitute interests. Regime type matters because democracies are
more open to international civil society that advances these norms and legitimates them. States
do not always comply with these norms because they may lack the capability to carry out their
obligations, the norms may not be fully internalized yet, or multiple norms could conflict.
The pattern of compliance by democracies tests the three perspectives: do they comply more
often generally? the constructivist position, do they comply more often when they have a legal
obligation? the liberal position, or are they no different from other types of states? the realist
view.
Reciprocity exists; the compliance of one side increases with the compliance of the other.
Joint ratification strengthens reciprocal responses. Democracies are more likely to comply
when they have ratified the most recent treaty even if the other side has not. Reciprocal
responses are made to individual violations as well as to state ones. Compliance decreases as
the scope for individual violations increase across issues.
Ratification by a democracy signals its acceptance of the standard of conduct in that treaty.
Joint ratification creates the anticipation that both sides are legally obligated, and states at war
are more likely to comply when both sides have ratified the relevant treaty. When one side
does not comply, the other responds in kind, and joint ratification strengthens that reciprocal
response.
The limits of international law
- international law emerges from states acting rationally to maximize their interests, given their
perceptions of the interests of other states and the distribution of state power.
- international law, especially treaties, can play an important role in helping states achieve
mutually beneficial outcomes by clarifying what counts as cooperation or coordination in
interstate interactions. But under our theory, international law does not pull states toward
compliance contrary to their interests, and the possibilities for what international law can
achieve are limited by the configurations of state interests and the distribution of state power
- A state complies with a treaty because complying is the right thing to do, or because the
people who run the state believe that complying is the right thing to do.
- States comply with treaties when it is in their rational self-interest to do so, and not otherwise.
Within the rational choice school, two types of explanation are given for compliance:
retaliation and reputation
The simplest explanation for why a state might comply with a treaty, and the explanation
we generally emphasize, is that it fears retaliation or some other failure of cooperation or
coordination if it does not.
A state and its leaders might care about their reputation for keeping promises, or
defending allies, or toughness, or giving aid to poor countries, or repaying loans. But these
are competing reputational concerns, and they are all different from a reputation for
compliance with international law per se.
- States enter into treaties, in our view, because the benefits of the treaty outweigh its costs.
Because states want to obtain the benefits of cooperation and coordination that the treaty
represents, it is natural for them to delegate this task to the institutions through which the
states act.
States mora obligations to comply with international law
- The more common view is that a state, like other corporate bodies, can bear obligations. States
have obligations to protect the rights of citizens. States have obligations to protect the rights of
citizens. They have obligations to keep their promises, respect the sovereignty of other states,
and help their allies (Maxwell 1990) Still, states do not act by themselves; they must be
made to act by leaders and citizens. Even if states can be said to have obligations, the leaders
and citizens must believe that they have a duty to guide the state in a way that is consistent
with those obligations. If they do not, the obligations of the states are idle and of no
importance
- International law grasps the first horn of the dilemma: It purports to bind states, not
individuals. Although individuals sometimes have obligations under international law, these
obligations are derived from the actions of states. But if we grant international law the power
to bind statesand we henceforth make this assumptionwe still must ask why individuals
and governments should feel obligated to cause the state to comply with its legal obligations.
- Most common explanations: consent pacta sunt servanda + opinio juris
- However not every state consented but were for example expected to by old states
- Although states often do consent to a particular obligation, including a treaty, consent is
neither a necessary nor a sufficient basis for creating an international legal obligation.
- utside of coincidence of interest situations, states frequently comply with their international
obligations, especially treaties, because it is in their interest, or their citizens interests, to do
so. The states obli-gation to keep promises is a prudential decision, not a moral decision. The
decision to keep a promise turns on its effect on the good of the state. (This is hardly a new
idea; see Spinoza 1958.)
- Another theory for why individuals have the duty to obey the law appeals to the capacity of
governments to do good for their citizens (Raz 1987)
- The norms of international law are different from morality: they are more precise and reflect
positions where moral principles run out. The norms reflect institutional constraints just as
domestic laws do. But norms of international law are distinguished from agreements, customs,
and other political accommodations by virtue of their moral specialness
- It is politics, but a special kind of politics, one that relies heavily on precedent, tradition,
interpretation, and other practices and concepts familiar from domestic law. On this view,
international law can be binding and robust, but only when it is rational for states to comply
with it
- Efforts to improve international cooperation must bow to the logic of state self-interest and
state power, and although good procedures and other sensible strategies might yield better
outcomes, states cannot bootstrap cooperation by creating rules and calling them law.
-
Seminar 2
Iran hostages case

Facts:
- On 4 November 1979, a militant group of Iranian students entered the United States Embassy
and overtook it, taking its occupants hostage.
- Iran had promised protection to the U.S. Embassy.
- The guards disappeared during the takeover and the government did not attempt to stop it or
rescue the hostages.
- Iranian government refused meetings with governmental officials.
- Unilateral actions were taken by the US government.
- The US argued that Iran violated the Vienna Conventions on diplomatic relations.
- And the 1955 Treaty which promoted good relations between Iran and US as well as promised
protection to its territory and nationals.
- Iran made no response to the Courts notices.

Diplomatic issue between US and Iran

- Hostages held for long period
- Violations of international law:
- US brought case before ICJ
- Economic sanctions blocking assets
- Trade sanctions to cut of oil and weapon trade
- Diplomatic measures cut off with Iran
- Military threats
- US seeking for international justice
- Any effects of violations:
- Resolution not possible because VETO
- The ICJ case was difficult as Iran did not adhere to the rules/procedure
- Unsuccessful mission
Enforce Vienna Convention on Diplomatic Relations
What effect if any did the enforcement mechanisms have in inducing Iran to cease its
international violations
- Vienna Convention on Diplomatic Relations : protection of students, not providing protection
under the conventions
- Irans fault? Guilty by omission
- Does it matter that the government can be held responsible? doesnt take away the
violations of the conventions
Enforcement mechanisms taken
- Centralized:
- Decentralized:
Did Iran violate the Conventions: yes host state ensure protection
Does it have responsibility on ensuring the release of the hostages:
Make reparations: knowingly and willingly chose not to intervene, denied and refused to meet,
therefore chose not to fulfil its obligations therefore has an obligation towards US
Unilateral actions taken by US government
- identifying all Iranian students not in compliance with the terms of their entry visas
- deportation of those in violation of immigration laws
- discontinuation of oil purchases
- blocking Iranian assets in US
- draft resolution introduced to SC calling for economic sanctions against Iran (not adopted,
Soviet veto)
 - ceasing diplomatic relations
- stopping US exports to Iran

- Economic sanctions
- Blocking assets
- Blocking trade by use of embargo
- Draft resolution Soviets vetoed it
Decentralized enforcement mechanisms
- Did it work?
- Did add pressure all together
- In general they could work

Sanctions effective?
- Effective why
- Blocking assets: amount of 12 billion dollars frozen
- Sanctions were linked to one particular event of releasing the hostages
- US got lucky as the war broke out and used that
- US could successfully get support from other countries effectiveness of the sanctions
Unilateral v. multilateral
- You must really depend on support from other countries if you want effective unilateral
sanctions
- Multilateral sanctions more effective and more legitimate

Seminar 3
Reading

The emerging right to democratic governance

- We have observed that the engine pulling the democratic entitlement is the craving of
governments for validation. Without validation, the task of governance becomes fraught with
difficulty. Regimes prize validation, then, as evidence of their legitimacy. Legitimacy, in
turn, is the quality of a rule, or a system of rules, or a process for making or interpreting rules
that pulls both the rule makers and those addressed by the rules toward voluntary compliance.
- Western democracies have achieved legitimacy largely by subjecting the political process to
rules, often immutably entrenched in an intrepid constitution. These lucky few nations have
succeeded in evolving their own legitimate means of validating the process by which the
people choose those they entrust with the exercise of power.
- Self-determination is the historic root from which the democratic entitlement grew. Its
deep-rootedness continues to confer important elements of legitimacy on self-determination,
as well as on the entitlement's two newer branches, freedom of expression and the
electoral right.
- Specifically, the legitimacy of a rule reflects the durability, as well as the consistency, of its
acknowledgment and application in practice.
- Self-determination postulates the right of a people organized in an established territory
to determine its collective political destiny in a democratic fashion and is therefore at the
core of the democratic entitlement
- Freedom of expression free political expression
- The third and newest building block in constructing the entitlement to democracy is the
emerging normative requirement of a participatory electoral process. The resolution
also declares "that determining the will of the people requires an electoral process that
 provides an equal opportunity for all citizens to become candidates and put forward
their political views, individually and in co-operation with others, as provided in national
constitutions and laws." The new climate has also permeated the General Assembly. At its
forty-fifth session, that body adopted a resolution entitled Enhancing the effectiveness of the
principle of periodic and genuine elections.82 This nonbinding, yet important, document
reaffirms and further specifies the electoral entitlement first outlined in the Universal
Declaration of Human Rights and later embodied in Article 25 of the Covenant.
A bright line links the three components of the democratic entitlement. The rules, and the
processes for realizing self-determination, freedom of expression and electoral rights,
have much in common and evidently aim at achieving a coherent purpose: creating the
opportunity for all persons to assume responsibility for shaping the kind of civil society in
which they live and work
The democratic entitlement also is more likely to be perceived as a legitimate rule if it can
be seen as a necessary part of a normative hierarchy. As it happens, the right to democracy
can readily be shown to be an important subsidiary of the community's most important
norm: the right to peace. With the exception of the principle pacta sunt seruanda, no
principle of international law has been more firmly established-first by the Kellogg-Briand
Pact and, particularly since 1945, by the UN Charter-than that states "shall refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any state."221 Not only has this peace principle been featured in
treaty law, but it has been resoundingly echoed in the jurisprudence of the International
Court of ~ustice'~~ and in opinio juris expressed in key UN resolutions
Thus, it appears with increasing clarity, in normative text and practice, that compliance
with the norms prohibiting war making is inextricably linked to observance of human
rights and the democratic entitlement. The achievement of none of these basic objectives
of the international community is possible, in any lasting sense, without the realization of
them all. This interdependence suggests that the legitimacy of the democratic entitlement
is augmented by its hierarchic relation to the peremptory norm of global peaceability.
The democratic entitlement's newness and recent rapid evolution make it understandable
that important problems remain. We have considered these primarily under the rubric of
coherence, indicating that this entitlement is not yet entirely coherent. The key to solving
these residual problems is: (1) that the older democracies should be among the first to
volunteer to be monitored in the hope that this will lead the way to near-universal
voluntary compliance, thus gradually transforming a sovereign option into a customary
legal obligation; (2) that a credible international monitoring service should be established
with clearly defined parameters and procedures covering all aspects of voting, from the
time an election is called until the newly elected take office; (3) that each nation's duty to
be monitored should be linked to a commensurate right to nonintervention by states acting
unilaterally; and (4) that legitimate governments should be assured of protection from
overthrow by totalitarian forces through concerted systemic action after-and only after-the
community has recognized that such an exigency has arisen. In the longer term,
compliance with the democratic entitlement should also be linked to a right of
representation in international organs, to international fiscal, trade and development
benefits, and to the protection of UN and regional collective security measures.23s Both
textually and in practice, the international system is moving toward a clearly designated
democratic entitlement, with national governance validated by international standards and
systematic monitoring of compliance.

Notes from seminar

 Haitian coup
- Resolutions were quickly passed by IOs immediate international action
- Economic and diplomatic sanctions failed which led to ch. 7 resolution
- Peaceful sanctions should be preferred, but if they do not work should this result into the next
step which may include use of force, intervention
- UNSC: pure internal situation, not a threat what makes it international? Can turn into
international concern. Here it didnt. but a refugee crisis might occur
- Is there an internationally enforceable right to democratic governance: no requirement in
international law for there to be democracy in a government unless the government is taking
part in grave human rights violations no civil society, no NGOs allowed, shutting down
news sites
Myanmar
- Why different than in Haiti? Due to political willingness
- How do we end this? Why is there no action by the international community? Maybe because
of the actors involved, and the Arab Spring for example had leading events where more
countries were involved
Syria
- The resolution in 2012 was blocked by Russia and China
- What can the international community do here? A tribunal prosecuting Assad for crimes
against humanity is hard to achieve as who is going to bring Assad to tribunal and the UNSC
has not put a resolution in place establishing such tribunal. In addition tribunals are often put
in place post-conflict rather than during a conflict. UNSC is the only thing we have to do
something about the situation in Syria.
Can international law offer any consistent and principled responses to such situation?
- Problem: P5 all about politics, we have not learnt from past experiences such as Rwanda
do we need to wait around for a genocide to happen to take action or not take action?
- Collective security?
- Change the UN system, as it was based on the 2nd WW, is it still effective enough?
- Could we reform the UN system?
- Without veto? Abstention is a way for P5 members not to necessary block a resolution but to
make a political statement and still let resolutions be passed.
- No P5 members? Change the members wont necessarily change the problems we are facing
- EU, African Union as P5 members? Difficult to come up with coherent decision. As EU
members have already given up some of their sovereignty to the EU to make decisions.

Seminar 4

Joint comprehensive plan of action JCPOA

- To ensure Irans nuclear program only used for peaceful actions
- P5 members, especially US, Israel and EU very interested in Iran not having nuclear
weapons
Purpose
- Preamble +preface
- Positively contribute to regional and international peace and security As Iran will be
prohibited to manufacture nuclear weapons
- Iran agrees not to build nuclear weapons multilateral treaty
- Iran: will allow it to move forward building confidence, encouraging international
cooperation
Produce
- Lifting all sanctions
- Steps to trade, finance in exchange Iran promising not to continue with nuclear arms
Content
- 6 parts
- Substantive
- Procedural
How can Irans obligations be measured
- Part B transparency and confidence building measures
- Long term presence of agency in Iran
- Monitor uranium use
How can Irans violations be determined?
- Could issue a claim to joint commission
Successful?
- Still have to see how it develops over the years
- Right step in right direction as no use of force, no sanctions involved trade, contract as it is
an exchange

Monitoring JPCA
- International Atomic Energy Agency
Sanctions relief
- Sanctions imposed by US

What happens if one of the parties find that they are not fulfilling its obligations
- Dispute resolution mechanism but outcome cannot be enforced

Agreement was endorsed by UNSC resolution 2231

- Unusual aspect, done for first time trigger termination
- The UN resolution can be terminated if triggered by any of the parties (P5, Germany, Iran and
EU) authorizing an actor other than the UNSC to terminate all or part of the resolution

Is this the way forward?

- Nothing in UNCH preventing it from doing so
- Could be useful to terminate if document will not be used anymore
- However it should be kept on record
- Could increase efficiency UNSC allowed it to be concluded otherwise Iran would not have
signed it

Legality
- Negative impact: legal to do, legal base?
- If we have this termination trigger, it should not be the SC, but GA
- Can it delegate its power? Certain Expenses, the SC power is delegated by the Members, it
therefore cannot re-delegate hence not legal
Seminar 5
Islamic State

State or not a state?

Montevideo convention on statehood
- Permanent population
- Defined territory does not necessarily have to be universal recognized territory but just
effective control is needed: Syra and Iraq they do exert effective control
- Government applying strict Sharia law. No capacity to enter into relations with other states
- Recognition
use of force
under what conditions can use of force be used
- art. 51: self-defence
- collective security
RTP
- Global political commitment to prevent genocide, war crimes etc.
- Responsibility to protect whole population
- Based on humanitarian aid
Role of UNSC in new developments
- Only entity to give binding resolutions under ch. 7
- Auhorize use of force as enforcement measure
- R2P: not reached CIL
What does this mean
- Art. 2(4) and art. 51
- R2P: need authorization of UNSC
- However problem of veto and deadlock
- Possible solution: Responsibility not to veto in decisions regarding humanitarian crisis
- SC role has not changed, still very significant

R2P relationship to SC role more effective enforcement?

- What is it? 2005 UN World Summit
- Key element: to protect civilians from crimes of war crimes, CAH, genocide, human rights
violations in mass
- 3 pillar system:
- Lies with the State itself their responsibility
- International assistance: assist states in protecting their population
- Humanitarian intervention if State fails despite assistance responsibility of international
community military intervention, authorization by UNSC
Libya
- Arab Spring uprising against Gaddafi regime
- Humanitarian intervention used
- Regime response to protests: extremely violent
- What reactions from international community:
- Arab League suspended their membership
- UN commissioner of HR: may amount to CAH
- Led to first SC Res: 1970: freezing of assets, ban on exports, and failed
- Second Res 1973: authorizing use of force responsibility to protect, used 1st time
- military action, enforced by NATO
- International community: NATO to take all necessary measures to ensure peace and security
Effective? Civilians protected, regime end?
- NATO authorized no fly zone all necessary means to protect civilians
- NATO authorized
- NATO mission shifted from protecting civilians to using attacks to go against the regime
was this necessary? Their argument: if regime stays, sooner or later violence will return
In what ways was this a success story?
- Human rights violations stopped, many lives saved
- Very first time humanitarian intervention authorized by UNSC rather than unilateral action by
Western states
- Violations: principle of non-intervention, and sovereignty of states If SC does not take
action, very difficult to do
- No veto used, Russia and China abstained from voting because internal issue not threat to
international peace and security
Negative things
- After regime was taken down, no regime in place
- Authorization use of force and way implemented by NATO: mission Creep abuse of SC
mandate by NATO: why went way beyond protecting civilians major critics
- Sovereignty of State
- NATOs position: to stay neutral, but they did take a side and overthrew the regime
- Was it necessary no-fly zone enough to protect civilians
1st statement
- It did prevent further human rights violations
2nd statement
- Does it give legitimacy to humanitarian intervention
3rd statement
- Pillar 3 should be first option rather than last:
- Yes if State itself is violating international law, and going against its citizens
- However it is said to be last resort if no SC res. only on humanitarian grounds
Statements important EXAM

Syria
- Why R2P not used?
- Domestic, not threat to international peace and security
- Arab League: strongly condemned but did not suspend Syria
- What is the difference with Libya?
- If regime is overthrown, who will be in charge of the new government? So many different
rebel groups who is the legitimate one?
- Also in Libya, the regime was overthrown which was not the main goal how will this issue
be dealt with next? This element was the biggest critique in Libya
- One essential difference: Assads quote in the beginning
Conclusion
- Russia is the one blocking any type of action by the international community

R2P
- Worth keeping as principle in IL? Legitimate?
- Has to be authorized by UNSC
- Should not be unilateral action