Enforcing International Law

From Self-help to Self-contained Regimes

Math Noortmann

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317143499
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Until recently, the fundamental link between two basic concepts in international law, namely the right to self-help and the obligation to settle disputes by peaceful means, has been neglected in doctrine and practice. The main issue is that international law traditionally recognizes the right of states to safeguard their own rights by resorting to countermeasures as well as the obligation to settle their disputes by accepted and recognized diplomatic and judicial procedures. Both concepts are based on their own merits, which are assumed to be valid in contemporary international law. It is the primary purpose of this study to determine which rules and principles govern the relationship between the two concepts. The book's major findings arise from an analysis of scholarly work, supported by examples from five different case studies. Drawing insights from legal as well as political science, it will be a valuable resource for students, academics and policy makers in international law, international relations and related areas.

Chapter 1

Introduction

They actually say that they were prepared in the first place to submit the matter to arbitration. The phrase is meaningless when used by someone who has already stolen an advantage and makes the offer from a safe position; it should only be used when, before opening hostilities, one puts oneself on a real and not an artificial level with one’s enemies …

It is laid down in a treaty that differences between us should be settled by arbitration, and that, pending arbitration, each side should keep what it has. The Spartans have never once asked for arbitration, nor have they accepted our offers to submit to it. They prefer to settle their complaints by war rather then by peaceful negotiation …

[w]ar could be avoided if Athens revoke the Megarian decree which excluded the Megarians from all parts in the Athenian Empire and from the Market of Attica itself.

Thucydides, History of the Peloponnesian War, trans. by RexWarner

(Harmondsworth: Penguin Classics, 1967), 34, 48 and 92.

Enforcement in International Law

Thucydides’ account of the Epidamnusian dispute contains the – probably – oldest recorded normative and political arguments on the appropriateness of negotiation and arbitration over war, boycotts and other forms of self-help as methods to settle “international” conflicts. Contemporary international relations provide ample examples of conflicts and disputes, which – like the Epidamnusian one – at one time or another have been the subject of both unilateral measures of self-help as well as diplomatic and/or (quasi) judicial procedures in an attempt to settle an outstanding issue. As such, the debate on the appropriateness and the normative relationship between unilateral measures of self-help and consensual dispute settlement methods in international conflicts is anything but new. The arguments in the inter-Greek dispute on (perceived) treaty obligations and actual behaviour could equally serve the advocates of contemporary states defending or challenging the resort to unilateral measures of self-help or questioning the recourse to consensual means of dispute settlement.

The United States’ counsel in the US v. France air services dispute formulated it as follows:

France cannot justifiably argue that the arbitration provision of the agreement precludes any recourse to unilateral measures pending arbitration [since] France could have refrained from taking such action [in the first place] and requested arbitration.1

The Pakistani representative argued in a dispute with India before the International Court of Justice that:

the party alleging material breach cannot act as a judge in its own cause and unilaterally suspend the treaty; the issue must be settled either by the consent of the parties or must be resolved through third-party settlement.2

Conflicts in which states have resorted to self-help, as well as to diplomatic and judicial means, have not only divided the parties to that conflict on questions concerning the appropriateness and legality of a specific course of action. Scholars seem to be equally divided on the question of whether and for what reason states should or must resort to coercion or cooperation. An interesting question is whether – considering the unique resemblance in the arguments and behaviour of the respective antique and contemporary adversaries – anything has changed over the past 25 centuries. De-contextualization, however, may not be taken for granted. Global economic interdependence, technical developments, sophistication of means of communication, existence of weapons of mass destruction, environmental and humanitarian threats and the proliferation of international actors and stakeholders, to mention only some of the more recent developments, cannot be disassociated from the political and normative structures.

International conflicts and disputes provide pick-and-choose arguments for both empirical as well as normative oriented scholars, who seek to argue in one direction or another. Coercive and non-coercive elements can equally be observed and detected. Ultimate settlements can be the result of both power politics as well as consensual agreements. The predominant cause of the ending of conflicts seems to lie in the eyes of the beholder or – to put it in analytical terms – in the eyes of the researcher and his or her disciplinary and methodological approach.

Both unilateral measures of self-help as well as methods of consensual dispute settlement can be considered as enforcement mechanisms in the broader sense of the word, especially in international relations and international law.

Instances of self-help in international relations are a double-edged sword for the realist. Self-help reinforces the power element in the realist paradigm while consensual dispute settlement stresses the lack of centralized enforcement mechanisms and the perceived primitivism of the international legal system. Centralized enforcement or rather the absence of centralized enforcement, however, is a key element in the realist and positivist conceptions of international law.

The lack of centralized means of enforcement in the international legal order has indeed provided many critical and cynical arguments as to the value and effectiveness of international law, amongst realists and positivists alike. International law is easily (dis)qualified as “primitive”, “reflecting the state of nature” or “self-help system” in political science as well as legal literature. Where deviations and violations of substantial rules are so easily observed, as in international relations, it is not easy to argue that centralized enforcement is basically immaterial to the functioning and indeed the very existence of the international legal regime. As in any other normative system, the international public legal order is predominantly based on the subscription of its subjects to that order and its underlying values and norms rather than to each and every single rule that springs from bureaucratic processes, whether they are legal or political. The global normative system should be understood as a transnational “contrat social”. The Roman civil law basis of international law can neither explain global public order processes nor can it assess nor account for the increasing number of participants in these processes.

Darwin’s evolutionism applies to the process of development of political and legal systems as well. If there is no natural selection between the rules, procedures and instruments that work and those that do not, mankind’s ability to make rational choices has been greatly overestimated. However, if we perceive:

human history in “generation time” rather than “clock time”, hunting and gathering was the basic hominid way of life for about 250,000 generations, agriculture has been in practice for about 400 generations, and modern industrial societies have only existed for about 8 generations. … The conditions of 250,000 generations do have an impact on the last 8.3

Assuming that socio-political systems evolve along the same lines as species, self-help as the traditional enforcement mechanism has been around for far more generations than organized or centralized enforcement and is still very dominant in modern global society. At the same time, we cannot but admit that for at least 200 generations other forms of enforcement have been developed.4 Like hunting, farming and industrial generations co-exist and affect each other, so do socio-political regimes and enforcement systems. The contemporary relationship between various enforcement systems is at least problematic, but it is clear that self-help as the traditional enforcement mechanism and conceptions of international relations based on the paradigm of self-help are challenged, both politically and academically.5

Self-help and Self-constraint – A Problematic Relationship?

Throughout history, we can observe two interesting and perhaps related trends in the normative assessment of conflict and cooperation in international relations. One approach promotes and prefers a peaceful settlement of disputes while the other is essentially concerned with questioning the lawfulness and appropriateness of an unbridled right of self-help which includes the right to military force. Today, these trends have merged in the growing normative assumption that the obligation to settle disputes by “peaceful means” has a confining impact upon the right of states to resort to unilateral measures of self-help.

Notwithstanding a clear and general preference for the peaceful settlement of disputes and an increasing scepticism concerning the traditional institutions of self-help and reprisals in legal discourse, the very existence, as well as the scope and content, of a rule requiring the prior exhaustion of or prior resort to procedures for peaceful settlement, before any resort to self-help, is highly controversial. Judicial policy and legal prudence arguments regularly enter into the legal debate. From a broader, interdisciplinary and political perspective, the “sanctions” discourse is not confined to strictly legal arguments. Considerations of a humanitarian character, for example, which in particular have entered the UN sanctions discourse,6 have equally been applied in the field of unilateral measures of self-help.7

The main legal problem is that international law traditionally recognizes both the right (or faculty) of states to safeguard their own rights through the resort to unilateral measures of self-help as well as the obligation of states to settle their disputes by accepted and recognized diplomatic and judicial methods. Both concepts are based on their own merits, which are presumed to be still valid in contemporary international law.

It is the primary purpose of this study to determine which rules and principles govern the relationship between the two notions of dispute settlement within the larger framework of enforcement. The question to be addressed in this study may be formulated as follows: what is the relationship between self-help and self-constraint in the contemporary international normative order? Is the traditional right of states to resort to unilateral measures of self-help in cases of infringements of legal rights and interests conditioned by self-imposed obligations of constraint? Obligations of constraint are made operational through voluntary and compulsory mechanisms for the settlement of international disputes. Are states in particular obliged to seek or actually resort to dispute settlement mechanisms prior to (any) resort to unilateral measures of self-help?

Self-help and Self-constraint – Two Phenomena … One Discourse

Those who have taken an interest in the normative development of international law have generally avoided addressing the institution of self-help. As a result, the relationship between self-help and consensual dispute settlement has until recently never been a basic issue in legal discourse. Political scientists, as well as lawyers, seem to assume that self-help and consensual dispute settlement are two completely distinct and unrelated phenomena in international relations. In the fields of international law and international relations the two institutions are studied in remarkable isolation.8 Moreover, if the number of publications in a given discipline may be taken as an indicator for that discipline’s predominant focus and discourse, one cannot fail to note the overwhelming legal literature in the field of the “peaceful settlement of disputes” and the overwhelming political science preoccupation with “sanctions as a foreign policy tool”. To the extent that the relationship between self-help and consensual dispute settlement has been a serious issue in international legal and political science discourses, it has been subordinated to or considered to be part of the more general discourse on the law of treaties, state responsibility or foreign policy analysis.

The codification work of the International Law Commission on the law of treaties and the adoption of Article 65 of the Vienna Convention on the Law of Treaties of 1969 indicated a first substantial reconsideration of the itemistic approach towards self-help and dispute settlement. Article 65 stipulates inter alia that the parties to a dispute should “seek a solution through the means indicated in Article 33 of the UN Charter”, if the target state objects to a suspension or termination of the treaty on the basis of Article 60 of the Vienna Convention.

The Air Services Agreement case demonstrated that states were willing to submit questions concerning the lawfulness of self-help to the judicial test. In 1978, the governments of France and the US differed in opinion on the question of whether the terms of the 1946 Air Services Agreement allowed Pan American Airlines to change gauge in London on its flight to Paris. The disagreement turned into a dispute, which became the subject of negotiations, measures of self-help and, finally, arbitration.9 One of the questions submitted to the Arbitral Tribunal by France and the US concerned the lawfulness of the “countermeasures”, which the US Civil Aeronautics Board (CAB) had initiated against Air France and the Union des Transports Aeriens (UTA). In the course of the proceedings, France submitted that the obligation to negotiate or arbitrate, as stipulated in the Air Services Agreement, limi...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• 1 Introduction
• PART 1 THE INSTITUTION OF SELF-HELP
• PART 2 CONSENSUAL DISPUTE SETTLEMENT: A REFLECTION OF SELF-CONSTRAINT
• PART 3 SELF-CONTAINED REGIMES
• Index