Enforcement of International Law
Looking at the events taking place across the globe today it is clear that a large number of states are repeatedly violating their international obligations. In the absence of a global police, states at times act as if they are above the law. However, international law does set out clear consequences for when the law is broken, and these consequences are on both the collective and individual level.
In addition to setting out prohibitions, such as torture or targeting civilians in an armed conflict, international law also outlines the legal ramifications for states when such acts occur.
Under international law, legal consequences can be broadly divided between state responsibility and individual responsibility.
Enforcement of international law can be divided into what the violating state must do itself and what others, namely states, must do.
The norms on state responsibility can be broken into two categories:
- Firstly the rules relating to all violations of international law;
- Secondly, the elevated level of rules especially directed towards third states when dealing with particularly serious or grave violations of international law.
i. General Rules on State Responsibility
Before the consequences of violations are discussed it is important to remember that obligations must be respected. Without respect, rules becomes meaningless. The notion of respect for international obligations finds expression in the Vienna Convention on Law of Treaties (1969). The notion of respect extends beyond the basic obligation to refrain from illegal conduct. Many international treaties include obligations to ensure respect for the law.
1. What are the general responsibilities of a state violating international law?
The basic principle of “state responsibility” in international law provides that any state that violates its international obligations must be held accountable for its acts. More concretely, the notion of state responsibility means that states that do not respect their international duties are obliged to immediately stop their illegal actions and make reparations to the injured.
The rules on state responsibility identify when a state can be held responsible for violating those obligations, and what the consequences are if it fails to fulfill its responsibility.
1. When does a state violate international law?
A state violates international law when it commits an “internationally wrongful act", a breach of an international obligation that the state was bound by at the time when the act took place. A state is bound to act according to international treaties it has signed as well as rules of customary international law.
2. Towards whom is a state responsible?
States have legal responsibilities both towards other states and individuals according to different sources of international law.
• Read more about towards whom states are responsible.
3. For whose actions is a state responsible?
In international society it is not always easy to identify who is committing a violation of international law. As a consequence, questions may arise as to which actions exactly is a state liable. These questions may include:
• May a state be held responsible if its soldiers, in situations of armed conflict, commit rape or other sexual assaults even when they are off duty?
• When may a state be responsible for terrorist groups operating from within its territory?
• May a state be responsible for violations committed by private security firms?
The general rule is that a state is responsible for all actions of its officials, de facto and de jure. In addition, states have positive obligations to prevent abuses from being committed against people under their jurisdiction. For example, in the event that a life is lost as a result of violence between two gangs, the state may be in violation of its international obligation to respect the right to life if it fails to undertake a serious and effective investigation into the killing.
The complexities of the issue would also need to be considered on a case by case basis to decide if the state is responsible, by act or omission, for the given action of an individual or group.
4. What should a state do if it violates international law?
If a state violates international law it is responsible to immediately cease the unlawful conduct and offer appropriate guarantees that it will not repeat the illegal actions in the future. The state also has a responsibility to make full reparations for the injury caused, including both material and moral damages.
5. What should third states do if another state violates international law?
Third states violate international law if they aid or assist violations of international law committed by another state. International Humanitarian Law (IHL), through Common Article One of the Geneva Conventions, sets out the obligation on third states to ensure respect for IHL in all circumstances.
ii. Serious Violations of International Law and State Responsibility
International law also sets out obligations that arise when a state commits a serious breach of international law. These obligations are triggered when the serious breach constitutes the violation of a peremptory norm of general international law. Peremptory norms are norms accepted and recognised by the international community of states as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
Third states have elevated obligations where peremptory norms are breached. The seriousness of the violation of a peremptory norm necessitates a collective response to counteract the effects of the breach of international law. These obligations include:
Cooperate to bring to an end the violation in question.
The rationale for these heightened obligations is the gravity of breaches of peremptory norms which affect the international community as a whole.
The Geneva Conventions through its grave breaches regime sets out specific obligations for third states when grave breaches of IHL occur.
b. Individual responsibility
Legal consequences of violations of international law are not limited to those under the purview of state responsibility. Certain violations of international law can entail individual criminal responsibility. Persons who aid, abet, order, supervise and jointly perpetrate international crimes can be held individually responsible.
International crimes are divided in three groups:
• War Crimes (serious violations of IHL)
• Crimes Against Humanity