International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
Jan/Feb 2007, Volume 2, Issue 1

General Principles of International Law

Enforcement Of International Law Is Not Dependent On A “Sword” Or Enforcement Mechanism

In September, 1990 there appeared a commentary in Newsweek magazine in the form of an article written by well-known conservative columnist George F. Will, titled “The Perils of Legality.” Mr. Will in his column was lamenting the fact that the policies of the United States government were being constrained by the “infinitely elastic cloth of ‘international law.’” Mr. Will then proceeded to disparage the whole idea of international law. He referred to a recent book written by the late Senator Patrick Moynihan On the Law of Nations as a “sprightly new book” and then wrote:

Sprightly means vivacious, cheerful, brisk. But a spright is a disembodied spirit, a ghost. Like international law. 

He continued:

International law – so reverently invoked, so rarely defined – is like God.
The threshold question is: Does it exist?

He answered his own question as follows:

If international law is really law, who enacts, construes, adjudicates and enforces it?  The phrase “international law” often is virtually an oxymoron. Law without a sword is mere words: lacking an enforcement mechanism soi-disant    “law” is merely admonition or aspiration. Law must be backed by coercion legitimatized by a political process.

The definition of law that Mr. Will has proposed is in fact a very limited 19th Century definition of what is meant by law, in effect expounding on a definition of law as the command of the sovereign backed up by force. This view of law is, to paraphrase Attorney General Alberto Gonzales’ characterization of the Geneva Conventions, a "quaint anachronism."

Without getting into a protracted commentary or argument about “what is law,” suffice it to say that modern ideas about the nature of law go far beyond Mr. Will’s narrow viewpoint. A more knowledgeable and enlightened person would have answered the question posed by him in a different way:

Law comes from different sources, other than purely through enactments. Custom, for example, has a long history as a source of law. So have private agreements or codes of conduct between organizations or among individuals. Moreover, there is an adjudication process for international law, especially the law of nations, law recognized in the Constitution of the United States. The International Court of Justice in The Hague was established many years ago to construe international law and adjudicate disputes under it. There are other international tribunals that have been established for such purposes. Finally an enforcement mechanism, a “sword,” is not necessary for the existence of international law. Law is observed by individuals and nations for reasons other than fear of a “sword.”

Since the lack of a “sword” or enforcement mechanism for international law seems to be a major problem for Mr. Will, and probably for others as well, in determining whether there does exist something called international law, and this lack being central to Mr. Will’s assertion that international law is a “ghost,’ this commentary will address that issue.

A simple response illustrating the insufficiency of Will's perceptions about the nature of law is to point to an everyday occurrence on the roads and highways of the United States. If Mr. Will is correct, the question can legitimately be asked: why do motorists in cities and towns throughout the nation stop at red lights at intersections, and remain stopped, when there are no other vehicles in sight, and no policemen around to give traffic tickets for those who might proceed against the signal? The answer is, of course, that motorists act like that every day for reasons other than the fear of a ‘sword” in the form of a traffic ticket, because law is something more than the will or enacted rule of a sovereign, backed up by some form of coercion. Citizens obey the law for all kinds of reasons that have to do with an orderly society, or their own enlightened self-interest, or the good of their community. The same is true of nations.

There are three good modern examples of nations obeying international law, as announced by international tribunals, despite the absence of any “sword,” or any enforcement mechanism such as a police force, or army, or some other organization or mechanism that might force obedience, or render punishment for disobedience of the court’s edict.

The first example is an illustration from a case decided by the International Court of Justice. The second example comes from a recent decision of the European Court of Human Rights. And the third comes from the Appellate Body of the World Trade Organization.

In the first illustration, in 1994 the International Court of Justice adjudicated and issued an opinion in a case involving the countries of Libya and Chad. The reader is reminded that Libya was then, as it is now, ruled by Colonel Muammar al-Guddafi, often described as one of the world’s worst despots. He is not the kind of sovereign that one, especially Mr. Will, would imagine to be constrained by concepts or principles of international law.

And yet Libya, under Colonel Guddafi, participated in the case before the International Court of Justice by being present through its own selected counsel. The case, known as the Case Concerning the Territorial Dispute, involved the issue of the boundary line between Libya and its neighbor to the south, Chad. Chad was claiming that the boundary line between the two countries was significantly north of an area claimed by Libya, while Libya was claiming that the boundary line was significantly south of the area claimed by Chad. The International Court of Justice ruled, in a decision rendered on February 3, 1994, that the boundary line between the two countries was essentially that claimed by Chad. In other words, Libya lost the case.

What was the result of this opinion, which was not backed up by any police force, or by any army waiting at the beck and call of the judges of the International Court of Justice or the Security Council of the United Nations? The result was that Libya, under Colonel Guddafi, acceded to the decision of the Court, withdrew its claim to the disputed territory and turned it over to Chad. There was no sword involved, and yet the decision of the Court, as international law, was obeyed.

The second illustration comes from a more recent decision of the European Court of Human Rights in a case from Russia. The case involved the status of the Salvation Army, a “Christian charitable group,” in Moscow. City officials had refused for seven years to allow that religious body to register and organize on the grounds that it was a “paramilitary organization.” The Salvation Army brought suit in a Moscow city court for official recognition, and lost. The Moscow court reasoned that the particular structure of the Salvation Army, with its military-like designations and discipline, represented a security threat to the nation. On appeal to Russian higher courts, the Salvation Army again lost. It then appealed to the European Court of Human Rights, which had jurisdiction over human rights cases from Russia because of Russian ratification of the European Convention on Human Rights treaty in 1998.

The European Court of Human Rights reversed the decision of the Moscow city court on the basis of the Russian government’s interference with the group’s “freedom of religion and assembly.” What was the result of the European Court’s decision, without any “sword” or police force or military body to enforce it? The answer: Moscow city officials immediately accepted the decision of the Court and allowed the Salvation Army to register and organize.

The third illustration involves the Appellate Body of the World Trade Organization, the body that hears appeals from WTO “panels” adjudicating cases involving disputes between nations arising from the rules and regulations of the international trade legal regime. Professor Giorgio Sacerdoti, a member of the Appellate Body and incoming President of that tribunal, spoke about the Body at a breakfast meeting in Washington, D.C. of the International Trade Committee of the International Law Section of the American Bar Association on November 30, 2006.

Professor Sacerdoti, in responding to a question about the effects of the decisions of the Appellate Body, noted that the tribunal, since the time of its existence, had rendered 80 decisions. In 79 of the 80 cases it heard and decided, the losing party had obeyed the decision of the tribunal without any further action required of the tribunal, the WTO, or any other organization. In the one decision where the losing party chose to ignore the decision, it did so recognizing that the prevailing party could undertake certain acts of trade retribution against it under WTO rules. Again, the Appellate Body had no police force or military body available to enforce or coerce conformity with its decisions. They were followed by the nations involved in the disputes because nations have valid reasons for obeying decisions of the tribunal (which represent international law) other than the threat or fear of a “sword.”

Professor Lou Henkin, University Professor emeritus at Columbia University Law School, has a favorite saying: “Most nations follow international law most of the time.” He could have added that nations follow international law because it exists, and is obeyed, without the necessity of a “sword.”

James G. Apple, Co-Editor of the International Judicial Monitor and President, International Judicial Academy

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