Enforcement of International Laws
Conflicts that involve violations of international laws abound globally. Such conflicts involve the death and torture of civilians. The Syrian Observatory for Human Rights (SOHR) estimates that 22,075 children and 13,704 women have died from 2011 to 2020, with 88,000 people reported to have been tortured to death at detention and prisons in the country. All these killings have occurred under the watch of the United Nations and the existence of an International Law. Understanding how international laws are enforced would suffice to explain the reason for the continuance of the violation of human rights of such magnitude. The method for the enforcement of international laws is less effective.
Background
Various schools of thought perceive the limitations of international communities in the implementation of global laws differently. The realists of the 1940s through the 1960s understood the law as epiphenomenal or irrelevant to the basic forces of global politics. However, political science detracts from the wishful thinking of legal idealists to describe the world as it is. The reality of World War II taught the lesson that fragile legal tenets could not contain the quest for power. Although international law and international politics are inseparable, Morgenthau (1985 cited in Simmons, 2012) argued that the main issue with international law was its decentralized nature, which renders it unenforceable. According to Simmons (2012), judging international law based on peaceful periods and secondary problems is misleading. The classical realist judged that international law could work in a limited way when power balance succeeds to keep in check the most violent ambitions of nations (Simmons, 2012). Nevertheless, the shifting power balances exposed the shortcomings of international laws and created opportunities for chaos.
Enforcement Strategies
Global communities use various techniques to enforce international laws. These measures include sanctions and collective security systems, among others. Sanctions represent one of the coercion methods for imposing international laws. d’ Aspremont (2015) defined sanction as a form of coercion that a legal system authorizes intending to alter a subject’s motivation for acting and reversion of its behaviors that contradict the systems prescription. Thus, this strategy counters the non-authorized coercion forms that themselves attract it when performed. Enforcement of sanctions, however, must be differentiated from compliance regulations that work independently of breaches, including fact-finding, inspection, and confirmation. Enforcement of sanctions is essentially responsive to conduct prohibited by the international legal system (d’ Aspremont, 2015). Unlike retribution and punitive mechanisms, sanctions are geared towards the restoration of fairness. Nevertheless, sanctions that facilitate enforcement by coercion have punitive and retributive dimensions.
Collective security systems, such as NATO, depends on the sanctions to punish states that violate international conventions. The application of the Chapter VIIs sanction regime represents an enforcement mechanism of international law if the threat to peace stems from a breach of its provisions. The collective system focuses especially on the threat to peace constitution violations of the UN Charter and the relevant customs laws. Violations of human rights laws have occasionally justified the perception of the threat to peace criteria.
Barriers to Enforcement
The enforcement of international laws depends entirely on the willingness of nations to comply. Compliance with international deters the use of unnecessary military force, although more countries defy these laws than complying with them. For instance, China and other South East Asia countries, including Malaysia, Vietnam, and the Philippines, have established military posts on various Islands in the disputed South China Sea despite contradicting the withes of the international provisions. The U.S. has moved in to try and deter further encroachment of China to the Island considered by international law as a freeway.
Various theories explain the tendency of countries to comply with or defy international laws. According to compliance theories, compliance depends on the willingness of countries to implement conventions using pressure if possible (Simmons, 2012). Simmons (2012) asserts that this position applies particularly if the issue concerns the states that are likely to renege on free trade agreements, arms control, or the prohibition on the use of torture. Goldsmith and Posner (2005) noted that in the absence of material pressure to comply, nations are likely to comply if their interest coincides with the provision. Also, the absence of material pressures tends to elicit partial compliance. Examples of material pressure include authorized retaliation ordered by the WTO’s dispute settlement panel, the association of trade to human rights practices, and enforcement of actions the United Nations Security Council (UNSC) authorizes or prohibits. Based on these theories, states will violate the law unless such actions will attract high costs.
Various scholars understand the enforcement of global laws differently. Krasner (1999) characterized enforcement of such laws as consisting of a series of separate phases or events based on different forms of retaliation. He argued that toleration of religious minorities mainly stemmed from a concern about revenge against own nationals rather than out of regard for conventions protecting the latter’s rights. In support of this view, Simmons (2012) states that studies of laws governing wars have revealed that international rules that are not imposed, such as those condemning the deliberate massacre of civilians, are likely to be overlooked in favor of military exigencies, to which the international law has no power.
State-to-state enforcement is essential to compliance with universal human rights conventions. However, Hafner-Burton (2005) argued that the attributes of such agreements tend to be highly endogenous to rights programs in the country in question. States often use multilateral forums to manipulate sanctions to enforce these laws. For instance, Lebovic and Voeten (2009) argue that resolutions of the Human Rights Commission are often associated with a cap in aid from the World Bank. Of note, inter-state enforcement is a significant constituent of trade law about the dispute settlement committee of the World Trade Organization (WTO). These statutes elicit high rates of adherence, although they are not associated with material pressures.
The credible commitment theory assumes that multiple states are unable to enjoy the mutual gains implied by international treaties, as the fulfillment of the promise by the other party is uncertain. Incentives to misrepresent the genuine intention of the parties aggravate the contracting issue. According to Simmons (2012), most theories of credible commitments are based on the assumptions of unsynchronized preferences, whereby states that promise to comply with a specific agreement at a specific time may encounter an incentive to renege in the future. Thus, reducing the incentives to renege against a convention constitutes a strategy to deter countries from breaching the agreement. This approach facilitates governments’ fulfillment of the conventions that would have been hard to conclude without ex-post costs for reneging the promises. Enforcement of convention in such models facilitates the realization of mutual benefits. Agreements that involve arbitration, monitoring, prosecution, or settlement of disputes represent efforts to increase the credibility of commitments to international laws by increasing ex-post costs. Peace agreements that create global audience costs, the ICC, bilateral investment agreements, territorial conventions, and institutionalized statutes of some alliance pacts present some of the examples of the enforcement strategy.
The collective security system can also work as a self-enforcing system. Sanctions that based on Chapter VII constitute a means of enforcement. In this case, the Chapter does not signify a mechanism aimed at overall enforcement but rather as one directed towards specific kinds of behaviors prohibited by the Charter. This stance premised on the notion that aggression, a threat to or breach of peace, violates article 2(4) of the Charter. Furthermore, the law offers limited support for the interpretation, especially about such unenforceable measures as article 41 (d’ Aspremont, 2015). The article envisages such methods as the enforcement of precedents the council sometimes took back.
Furthermore, the collective security system can act as a peace-enforcement mechanism. Besides the scrutiny of states to find any evidence of violations to global law or the Charter, to enforce the respective punishment, the collective security regimen constitutes a peace enforcement tool. This notion is based on the notion that coercion strategies informed by Chapter VII are not sanctions since they are not a reaction to wrongful act; instead, they are merely police measures that are inclined towards peace and security sustenance. This is also the case for peacekeeping missions, regardless of whether they are from the Security Council or the General Assembly.
References
d’ Aspremont, J. (2015). The collective security system and the enforcement of international law. In M. Weller (Ed.), The Oxford handbook of the use of force in international law (pp. 129-156). (Oxford handbooks in law). Oxford: Oxford University Press.
Hafner-Burton, E.M., & Tsutsui, K. (2005). Human Rights in a Globalizing World: The Paradox of Empty Promises. American Journal of Sociology 110 (5):1373–411. https://pdfs.semanticscholar.org/1d89/4696d0d707754e117d0962c48030c6a3c1d2.pdf?_ga=2.51471593.1585530961.1591543638-1440513261.1591543638
Krasner, S.D. (1999). Sovereignty: Organized Hypocrisy. Princeton, NJ: Princeton University Press.
Simmons, B. (2013). International law. In Carlsnaes, W., Risse, T and Simmons, B. 2nd ed. Handbook of international relations. London: Sage. file:///home/chronos/u-34aaa327011883d0a2349e702efc2c56f3f07b47/MyFiles/Downloads/ch_14_-_international_law.pdf
Syrian Observatory for Human Rights (SOHR). (2020). Syrian Revolution NINE years on: 586,100 persons killed and millions of Syrians displaced and injured.