S.J. Quinney College of Law

by Stephen Dicks

For years one of the main problems in International Law has been enforceability. This has been due in fact largely to the principle of sovereignty. Sovereignty, in essence, means that a state has absolute power to rule and regulate within its own specified territory, and that the state is not subject to the jurisdiction of another state or to foreign law. This long respected system is still in effect today, subject to some overriding policy considerations and customary international law. In order for a state to be bound by a treaty, convention or ruling by an adjudicative body it must in some meaningful way give up a measure of its sovereignty. 

Rainbow Warrior Affair

The nature of sovereignty has severely handicapped international dispute resolutions and adjudicative tribunals in many ways. These problems were highlighted in the Rainbow Warrior Affair. In that case, France violated New Zealand’s sovereignty by entering into their territory and committing government-sanctioned crimes. Here, Greenpeace, a non-governmental organization, used a small ship called the Rainbow Warrior to help publicize their protests against certain governments’ environmental practices. While the Rainbow Warrior was docked in a New Zealand harbor, before it was sent to protest French Nuclear testing, members of the French Directorate General of External Security bombed the ship causing the death of a Dutch crewmember and the destruction of the ship.[1] Two French agents were arrested, charged and sentenced under New Zealand law. This led the French to seek the release of their agents, and it led New Zealand to seek further compensation for the damages caused by France’s actions.

France then used its status in Europe to restrict New Zealand exports of butter to France and to the European Community. New Zealand replied by filing complaints with international trade organizations. Later that year, the two countries agreed to submit the matter to the UN Secretary-General Javier Perez de Cuellar for a binding ruling.[2] The fact that the ruling was to be binding is significant in that each state expressly agreed to be bound by whatever the then Secretary-General decided in the matter. The extent to which they actually followed the ruling is a different story.

The French were ordered to apologize and compensate New Zealand for the wrong that was done. The two French agents were ordered released from New Zealand custody to be delivered to the French where they would be placed in exile on the small island of Hao outside of Europe for three years. They were not to leave the island before the termination of the three-year period except by the mutual consent of France and New Zealand.[3] France was also ordered to not obstruct or impede New Zealand exportation of butter to Europe.[4]

Through an international dispute resolution both countries were able to come to a satisfactory and amicable agreement. Though this would appear to be a clear victory for international law enforcement, the story behind the scenes shows that it was predominantly a face saving exercise for both countries. The two countries had already come to a secret agreement before the Secretary-General’s rulings, but in an effort to politically protect themselves domestically both countries agreed to submit the matter to the U.N., thus relieving them of any political liability for any of the concessions that were made.[5] Although France complied with the economic damages against them, they were less compliant with the three-year exile of the two French agents on the island of Hao. Neither agent completed the three-year punishment. The first was evacuated to France for medical treatment without New Zealand’s approval. The second was allowed to go back to France because she was pregnant and later because her father was dying.[6] When an arbitral tribunal finally met, they declared that France violated the Secretary-General’s orders, but that the three-year period of punishment had passed.[7] This meant that neither agent would have to return.

This dispute should have, in all likelihood, gone to the International Court of Justice (ICJ). Almost a decade before this incident, however, France removed their consent to the Court’s jurisdiction because of a 1974 suit by New Zealand and Australia in regards to French Nuclear Testing. By removing their consent, they were no longer bound by any of the decisions of the ICJ or subject to their jurisdiction. This problem shows the importance of maintaining and ceding sovereignty in the international law context. Sovereignty was yielded to the Secretary-General only after the dispute was agreed upon between the two nations, meaning that France would not have to face a potentially harsher ruling.

Methods of Enforcement

There are three predominant methods of enforcement in international law. As discussed briefly in the Rainbow Warrior Affair description, adjudicative tribunals, arbitration, dispute resolution and regional and universal courts, can rule on certain matters and impose sanctions. The implementation power of these courts and organizations to impose sanctions can vary widely. The sanctions may be economic, diplomatic, or military. The tribunals that levy these sanctions are successful in as far as different nations have consented to treaties, or have joined regional or international organizations.

This type of enforcement is best attained when there are existing memberships in a regional or international organization, treaties between nations, or acceptance of conventions. Economic and diplomatic sanctions can be very slow to work.[8] The majority of the effects from these types of sanctions are often felt the most by the ordinary citizens of a non-compliant country and not the violating government.[9] In some cases, this could lead to increased domestic pressure of the government to correct its violations.

A second form of enforcement that has been increasing in application, acceptance and effectiveness in recent years is reporting and monitoring mechanisms. These mechanisms work principally by monitoring any abuses of international law such as environmental violations, genocide, torture, slavery and other human rights violations and reporting them. Still, reporting mechanisms are generally not vested with any authority to bring non-compliant states into compliance or demand compensation for damages.[10]

The moral influence of these mechanisms should not be overlooked. The reporting of these abuses can lead to political shame and embarrassment of a violating country.[11] With the growth of the stature and importance of NGO’s in the twentieth century this method of politically shaming a country has led to more economic consequences for violating countries. Compliant countries may prefer not to do business with non-compliant countries, creating a type of voluntary economic or trade sanction solely through moral influence and political opinion. Reporting and monitoring alone has generally been regarded as fairly weak, but in correlation with treaty enforcement, can be very effective.[12]

In a protest this year of Russian oil drilling in the Arctic Circle, 14 people were arrested and charged with piracy for their protest of Russia’s Arctic oil drilling practice.[13] This incident has been compared to the Rainbow Warrior Affair because it is another case where a government has attempted to prevent a potentially damaging protest. Russia fears the potential impact that an environmental protest may have on its economy. Their economy has been slowing in recent years and is heavily dependent on energy exports.[14] By charging the activists with piracy, however, Russia has brought more attention to the unpopular drilling. Though the drilling in this instance may not be illegal, the political embarrassment will likely affect the level of care with which Russia drills for oil in the Arctic.

Finally, all countries do have recourse to military action as a means to enforce international law. This method is highly disfavored, as demonstrated by the United Nations’ Charter.[15] The charter establishes that member states are to avoid the use of force in international relations.[16] The charter clearly states the U.N.’s purpose is to “maintain international peace and security”.[17] Approval of the use of force would be contrary to that goal. As such, military force is an option, but one that will likely bring unwanted consequences against the aggressor. 

Conclusions

Reporting and monitoring mechanisms may be emerging as the best option to curb the actions of non-compliant states in a globalized system. As international markets, technology and transportation have improved, so has the importance of reputation and political capital.[18] Professors Ryan Goodman and Derek Jinks have argued that reporting mechanisms are also beneficial because they can help lead to a culture of human rights.[19] They contend that reporting helps to socialize states, in a way that helps them to conform with current human rights standards, whether the states agree or not.[20] Reporting and monitoring can also pile pressure on the domestic courts and other domestic actors in a non-compliant state to effect a potentially quicker change than through sanctions alone.

In regards to environmental abuses and human rights crimes, such as genocide, torture and slavery, political pressure can be a very powerful tool in bringing a non-compliant government into compliance. In the Rainbow Warrior Affair, an NGO was trying to bring attention to environmental problems. The power and political influence of Greenpeace in the 1980’s was enough to lead the French to bomb their boat to prevent them from being able to protest. This action led to a case that highlights the weaknesses in international law enforcement. Namely, that states are bound only when they consent, and that they are likewise only bound to the extent that they consent. The case also showed how international law could be used as tool to legitimize governmental decisions. Through overlapping agreements and reporting and monitoring mechanisms international law has an increasingly effective means of enforcing the norms and customs of international law in a modern system.

Stephen Dicks is a S.J. Quinney College of Law class of 2014 candidate from Winter Haven, Florida. Dicks’ entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.