Can International Law Be Enforced Towards Its Subjects Within the International Legal Order?

Can International law be enforced? This begs a question, thus problem, in the theory of law: whether there can be enforcement of law in absence of sovereign authority, as is the case of International law. International law has become its own legal order with its own unique way of operating. This writing is a normative research on the sources and reality of the actors of International law. It is found that International law is enforceable and that there are two ways that International law can be enforced, i.e. enforcement by â€œauthoritiesâ€ formed by treaty regimes, and by non-authorities (including enforcement individual states and by the International community). It is also found that these enforcement means have their weaknesses.


Introduction
Does international law really exist? This has been one of the most classic theoretical debates in the field of law generally and international law specifically. One of the problems that is at the heart of this debate is the enforceability of international law. 1 In this particular problem, one may ask: is the existence of enforcement essential as a requirement of a law?Austin, in the 19 th century, argues that enforcement is required 2 while Hart, a little over a century later, argues otherwise. 3 However, this essay will not indulge in the debate on whether international law is law, or whether a law requires an enforcement mechanism for it to be called a law.
Austin's argument was that a law would require: enforcement in form sanctions for acts of disobedience, and such sanctions are imposed by the sovereign or officials.The fact remains that there is no such thing as a world government acting as a sovereign authority. International politics has and is still witnessing numerous problems which begs a question on whether or not international law can be enforced.
Why has the law been very strong against (the former) Yugoslavia for what it did in the Yugoslav wars, but very silent about Palestine? Why was it so easy for a very large state alliance to be established to fight the 'Islamic State' (formerly the Islamic State of Iraq and Sham or ISIS) who were brutal but in reality has killed not so many civilians, while nothing could be done against the Bashar al-Assad regime of Syria who has clearly killed hundreds of thousands of children?
The situation begs numerous questions. Does the sanctions have to be imposed by a sovereign for the rule to be concluded as 'law'? Or, while we are at it, is there even any law at all? These are questions on whether International law is indeed a law or not. While the necessity of a sovereign authority will be briefly explained in Section III of this essay, but as mentioned earlier, 'whether International law is a law' is not the focus here. This research will explore the actors of international law which has been found to de facto practice enforcement towards subjects of international law bearching the law. First, it will be found that there actually are "authorities" created by treaty regimes. Their nature and shortcomings in enforcing international law will be explored.
Second, the focus will shift to "non-authorities". This part, which includes enforcement by individual states an the international community, will show that international law can be enforced despite the absence of "authorities". On both parts, however, it will also be explained that shortcomings also exist.

Research Questions
This research focuses on the following questions: is international law, despite the absence of a sovereign authority, enforceable? If it is, how is it enforceable? What are the shortcomings of the different ways of enforcing international law that is responsible for the apparent 'mishaps' in the enforcement?

Purpose of Research
The purpose of this research is to know whether or not international law can be enforced, and to understand the ways and shortcomings of each ways of such enforcement.

Research Method
This research is a normative research, conducted by observing the sources of international law as well as the conduct of actors of international law, all taken from secondary data (document and literature study only). On the subject of law materials, researches on international law might not follow similar classification to that of national laws. In national law, primary law materials would include authoritative sources (e.g. statutory legislation and judicial decisions) while secondary law materials would include works of scholars.
In international law, however, as Peter Marzuki notes, authoritative sources of law would refer to sources of international law including what is mentioned in Article 38(1) of the ICJ Statute 4 -which includesthe works of the most highly qualified publicists which would normally be considered as secondary law materials. In that note, Peter Marzuki did not make a distinction between primary and secondary law materials in discussing law materials in international law. However, only the 'most highly qualified publicists' may be seen as an authoritative source of international law, which may imply some distinction from other 'lesser qualified' (if it could be put that way) work of scholars to be considered as secondary law materials. Tertiary legal materials (e.g. media resources) are used to supplement the other materials.
From the available materials, this research will use a qualitative approach to answer the research questions.

Enforcement by "Authorities"
Austin's view on international law is highly dependent on the historical setting where he lived. Austin says international law is not a law, as it has no sovereign body or officials and sanctions are merely moral.At his time, it may seem that the only model of a sovereign would be governments of states -such authority is explained by many theories,inter alia the social contract theory where the society enters a 'contract' with the sovereign. 5 However, Austin may have not seen what would come in the next century.
Groups of states have gathered and ratified international treaties containing rights and responsibilities to its parties, and also establishing certain bodies to enforce these rights and responsibilities therefore becoming some sort of 'authority' regime for the parties (and in some cases, to non-parties). Examples of such bodies would be the United Nations (UN) with an authoritative organ such as the UN Security Council (UNSC) and the World Trade Organization (WTO) with its Dispute Settlement Body (DSB). These bodies serve as "authorities" due to the treaty provisions which are consented to and therefore binding to the members (as will be explained later). This, to some extent, may resemble the authority of a state to its citizens.
The following would be some comprehensive analysis on how 'authorities' in treaty regimes can enforce international law, using the UNSC and the DSB as samples.
5 See also the interesting approach by van Apeldoorn saying that the concept of positive law and its authority to be binding the society is some form of contract between the society and sovereign. L. J. van Apeldoorn, PengantarIlmuHukum (translated from Inleiding tot de Studie van het NederlandseRecht), PradnyaParamita, Jakarta, 2008, pp. 155-159 The Security Council Enforcing the Law of Peace. Article 1(1) of the UN Charter 6 mentions the first purpose of the UN as well as the desire to enforce it: "To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace…". 7 To achieve the purposes of the UN, Article 2 outlines the general obligations of the member states, including the prioritizing of peaceful means to settle dispute as well as the prohibition to the threat or use of force. 8 It may be interesting to note that Article 2(5) mentions the possibility of the UN to take '…preventive or enforcement action'.Further, the last parts of Article 2 (7)  principles that should be applied in international trade, i.e.: 17 1) Non-Discrimination: A state should treat all other states equally (Most Favored Nation Principle), and should also treat foreign and locals equally (National Treatment Principle); 2) Freer Trade: reducing trade barriers gradually through negotiation; 3) Predictability: with binding and transparency; 4) Promoting fair competition: allowing tariffs and certain forms of protection in certain situations; 5) Encouraging development and economic reform: Flexibility for developing countries.
When a member feels violated due to the breach of WTO law by another member or a respondent, the injured member can trigger the mechanism of the DSB governed by the DSU. 18 At the end of the series of processes, when the DSB has already made a ruling in against the respondent member who then does not comply, the DSB can authorize the injured state to impose certain countermeasures. 19 An example to this would be the Australia v. Canada salmon dispute, where Canada filed a complaint due to Australia's prohibition on certain kinds of salmon from Canada.This case occurred because Australia prohibited certain imports of salmon from Canada, alleging that it was unsafe for consumption. 20 The DSB ruled in favour of Canada because it found that Australia did not conduct proper investigation and lack scientific evidence to make such restriction. After that decision, it was Canada's threat to request authorization through the DSB to retaliate that contributed largely to the compliance of Australia towards that ruling. 21

Shortcomings of the "authority enforcement"
The capacity of the SC is not without problems, which mostly lies in the realm of politics. The first problem that would rise would be legitimacy issues due to lack of representation and existence of veto rights for the permanent members, 22  shows how there can be a big contrast between what the general UN community wishes and the UN Security Council wishes (which even there, the resolution only had one "against" vote, which was the USA).
The use of veto rights has also further prevented actions of the SC on other grave issues. There have been numerous UN GA resolutions condemning Israel gross violations of human rights towards the Palestinians in e.g. No. 2546No. (1969 and No. 43/54 (1988), and the Goldstone Commission report bringing more evidence of those violations. 29 However, no kind of enforcement has ever been done towards the Israel. All the SC has ever done is to "strongly condemn" e.g. through Resolution No. 672 (1990), and even numerous draft resolutions that attempted to 'only' condemn Israel and call for cessation of violations has been vetoed by the USA since the 2000s, 30 let alone make any sanctions. 31 23 Article 23 (1)  SalibaSarsar, "The Question of Palestine and United States Behavior at the United Nations", International Journal of Politics, Culture, and Society, Vol. 17, No. 3 (2004), pp. 457-470, at pp.460-467 The African Union (AU) tension with the ICC is highly related to the SC.One of the reasons of this tension is the alleged 'targeted prosecutions' towards African leaders. 32 SC takes part by referring two situations to the ICC: Sudan and Libya. 33 This is while failing to act upon alleged serious crimes in Palestine, Iraq, Syria, etc.
The problem of the WTO enforcement system is that it relies purely on reciprocity by the injured member, which will be explored in the next section.

Enforcement without Authorities
The previous section has explored that, unlike the international law that Austin may have seen, it is not impossible for international law to have "authority" regimes.
This section will show that, even without such "authority" regimes, international law can still be enforced. There are two kinds of enforcement in international law that may occur without authorities, i.e. enforcement by individual states (either retaliation by victim state through reciprocity, or by a third state) and by the international community as a whole. It will also be seen how the effectiveness (or lack there of) may also depend on this category of enforcement.

Individual States
Hart counters Austin's submission on the necessity of a sovereign in law enforcement, arguing that the sovereign itself is not independent to other kinds of law and influences and therefore law cannot be pictured to definitely require a sovereign. 34 He notes how custom can be a source of law, where a sovereign does not necessarily exist in that respect. 35  Interestingly, the compliance to international agreements (treaties) may also be due to the same reasons as stipulated in the previous paragraph. 43 Even the aforementioned SC enforcement stems out of treaty obligation, and we know that the law of treaties started as customary international law as well. 44 Therefore, the enforcement by the international community by virtue of reciprocity is very important.Although at the start is to be used to explain the relations between two states, reciprocity is repeated into massive scale in the multi-state international community into what will seem to be a regularity of practice. This is either through the massive scale of bilateral reciprocities, or even a collectivity of states towards an Even in a more modern context of IHL, some extent of reciprocity may have role.
An evidence to this is the existence of belligerent reprisals.Traditionally, belligerent reprisals might not necessarily be in conformity with IHL per se, as by definition it does mean to conduct an unlawful act as retaliation to another unlawful act by the adverse party. 54 However, there seems to be room for belligerent reprisals with certain restrictions.
The Kupreskic Casedoes mention that belligerent reprisals can be legal as long as they fulfil a few requirements: done as last resort to ensure adversary compliance to IHL, taking precautionary measures, proportionality, and elementary considerations of humanity. 55 This is generally consistent with practices stemming from Article 27 of the Lieber Code, for example the UK's reservation to Article 51-55 when ratifying the Additional Protocol I to the Geneva Conventions (1977). 56 Bear in mind that Article 51-55 of the aforementioned Protocol regulates the protection of civilians and other objects in times of war, with a particular interest in 51(6) and 52 (1)  There are controversies to the extent of which belligerent reprisals can be lawful. 58 However, the previous authorities are clear that the idea of belligerent reprisals in general is a lawful way of enforcing compliance to IHL.

Unilateral Actions by Third Parties
The previous subsection talked about how victims of the particular rule violation could react in such a way to enforce compliance towards the state that made such violation, as a consequence of reciprocity. This subsection, on the other hand, will explore individual state(s) role in enforcing international law despite not directly being victim of that particular rule.As the cases will show, unilateral actions by third parties are usually doneto assist the direct victim due to the request or helplessness of the latter.  67 The boycott has three tiers, which are to prohibit (although not binding to) the Arab League nations from having: 68 1. business relations with the Israeli government or citizen; 2. business relations with any entities world-wide that does business with Israel; 3. business relations companies that in turn deals with companies that have been blacklisted by the Arab League; 4. the enforcement of the boycott varies. Some never did the boycott (e.g. Mauritania), some only enforce the first tier (e.g. Saudi Arabia, and even then, they are trying to avoid the boycott) and then eliminated it completely, and only Lebanon is enforcing all tiers of the boycott. 69 More recently, other states have also started small but clear hard actions to build up further pressure to Israel. Among them, Norway's finance ministry excludes certain Israel firms from government pension funds, while Romania has forbidden its citizens to work in West Bank companies. 70 This is after the European Union (although not exactly an individual state) released a Guideline on Activities in Israel Occupied Territories, 71 which outlines a number of policies that also apply pressure towards Israel (e.g. not recognizing the occupied territories as lawfully occupied, and the cutting of EU supports regarding activities in those areas).

Article 48 of the Draft on SR mentions: 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole.
Military intervention may be one of the forms of ways which states have done to enforce compliance towards international law.Normally, the use of force is prohibited under Article 2(4) of the UN Charter. However, as mentioned previously in the section of Enforcement by "Authorities", Article 42 of the UN Charter provides possibility for the SC to authorize legitimate uses of force to enforce compliance towards certain international obligations.An example to this would be the armed attack towards Iraqi forces by the USA-led forces in 1991 as previously explained already. This is both an example of enforcement by the SC as well as by individual state(s).

Shortcomings of Actions by Individual States
It has been mentioned how the compliance of states towards legal obligations are governed more by their own interest rather than that of their sense of legal obligation. 72 The only logical consequence to that is if there is a collision between 'obeying legal obligations' and 'obtaining interest', certainly the choice will not be the former. It is generally more beneficial for states to cooperate even when not necessarily always achieving maximum or any interest at all, but then at least losses can be minimized. 73 There is no question on the intimacy of relationship between the USA and Israel on so many areas, including but not limited to: military, economic, political, etc. 75 One of the aforementioned shortcomings of the SC as enforcement is at the same time a shortcoming of individual state(s) conducting enforcement. It has already been explored how the acts of Israel towards the Palestinians are clearly unlawful and has been condemned by an overwhelming majority of states. It has also been noted how the failure of the SC to issue any binding sanctions or even condemnations towards Israel is due to the Veto of the USA.
Outside the UN arena, it is seen that the acts of the USA enforces its own interest rather than that of the international legal obligations. An example to this would be the military cooperation. describe most if not all of their products to be 'combat-proven'.
Another example of a 'third state enforcement' was the 2003 Iraq invasion. Unlike the 1991 invasion which has no question in its legality, the US-led invasion to Iraq was an example of virtually unquestionable illegality. They had a two layered justifications for the invasion: 1. Enforcing SC Resolution 678 (1990) and 687 (1991), due to material breach of peace conditions by Iraq, 79 2. Self-defence towards Saddam Hussein's threats. 80 However, overwhelming voices from States both in the UN GA and SCisevidence how the international community neither supports such understanding of the aforementioned SC Resolutions, nor is there any threattowards international peace that might justify the claim of Self Defence. 81 Yet, as we have witnessed, the invasion happened anyway. It is not hard to conclude that, no matter how obvious was the USA violations were, the SC will never be able to act due to USA's veto rights. interpretation of law that just so happens to be against the international community's interpretation. It just so happens that, in this context, the latter's interpretation would be seen as more authoritative.

Enforcement by the International Community
The previous section has explained an alternative view on compliance towards international law, other than 'sense of obligation', which is the natural enforcement by other states in international relations. It can be in form of reciprocity by the affected state, as well as by a third state. It has been briefly mentioned how reciprocity, in a multi-state context, can multiply on a massive scale into a general behaviour of state. And in that context as well, we have what we call an "international community".
We have seen how individual states have represented this international community in enforcing international obligations. This section will explore how states collectively act as international community in enforcing international law.

Pressureby the International Community
It has been mentioned as well in the previous section, how the form of enforcement in this context is in form of denial of certain benefits of social cooperation, where states have found that compliance will generally help them enjoy such benefits.
A first aspect to this would be the phenomena of soft law. Traditionally, soft laws are non-binding. 93 However, they are generally complied with. An example to this would be GA resolutions.
There is a reason why this essay did not include the GA (or UN bodies other than the SC) as an enforcement body in the section of Enforcement by "Authorities", 91  showing how the GA can only 'recommend'). However, the GA has de facto been a forum of enforcement due to the impact of the collectivity of states behind it. They have regulated many things that have then been followed internationally as they can only pass when supported by a majority of GA members (i.e. almost the entire world). A testimony to that would be GA resolutions on state control towards natu- What the GA example above wishes to display is that then, there will be pressure towards and by each other to actually follow these resolutions, as they reflectopiniojurisand later generate state practice in forming customary laws. 95 This pressure acts as enforcement for each other's compliance just like any other social cooperation, as explained in the beginning of the previous section.
The UNcan also become a more explicit pressureforum by the internationalcommunity.An example to this would be pressure towards the USA in the AIDS patents problem. The USA tried to file against a complaint against Brazil to the WTO due to an alleged breach of the TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights),despite such alleged breach was done by Brazil to combat an AIDS epidemic. 96 However, international pressure came on to the USA especially through the UN Commission on Human Rights (CHR) Resolution No. 2001/33, declaring that the right to access AIDS medicine in situation of epidemic is a human right. 97 The pressure towards the USA was so high that on the first day of the UN GA Special Session on AIDS (which also adopted the CHR Resolution's content in the Joint Declaration)they had to send a letter to Brazil to set the problem aside, and then also dropped the complaint at the WTO. 98 It is elusive to assume that the above is a case of 'enforcement to international law compliance'. It may be argued that if the right to the highest attainable standard of health 99 94 Gregory J. Kerwin, "The Role of United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts", Duke Law Journal, Vol. 32, No. 4 (1983) Social, and Cultural Rights (1966) is to (according to the belief of most states) include the access towards medicine in situation of epidemic, which also includes setting aside patents, this international pressure is a move to safeguard such rights. Or even if the argument is not accepted, at least it is an evidence of international pressure that can direct state behaviour.
Pressure does not have to be from the entire international community, as it can be in form of only a few states. An example to this would be the enforcement of the Land and Maritime Boundary Case. 100 Nigeria decided that it could 'cherry-pick', declaring to follow only the parts they considered fair or favourable and rejected those deemed unacceptable. 101 It was the USA, France, and the UK who pressured Nigeria to comply with the judgment. 102 The UN did have a role in this situation, but they played the 'good cop' instead of pressurizing, to help Cameroon and Nigeria negotiate further to resolve the matter peacefully. 103 International pressure could be manifested further in form of economic sanctions. It is obvious that the more states that apply sanctions, the more effective it will be. When Libya failed to cooperate in the investigation of Lockerbie incidents demanded by SC Resolution 731 and 748 (both in 1992), the SC resorted to economic sanctions and travel bans towards Libya through SC Resolution 883 (1993). This is an example of enforcement by the SC, but seeing how the sanction was carried out it is also an example of enforcement by the international community. SC Resolution 883 (1993) imposed obligation to do sanctions to the all states. 104 Due to this international sanction, Libya decided to cooperate. 105 Sanctions need not to be committed by the international community through the UN.
An example to that would be the sanctions against Myanmar due to the reign of the Junta military who were violating human rights by oppressingtheir own people. These various forms of sanctions were applied by the EU, USA, Canada, Japan, 106 and Australia. 107 After significant progress in Burma (e.g. proper elections, democratic regime), some of these sanctions were lifted. 108

Shortcomings of Enforcement by the International Community
The weakness of international pressure lies in the basic construction of the system.
As previously mentioned, states will only do what is best in their interest, and sometimes obeying rules are not in their best interest. The idea of enforcement in any case is to construct the situation in such a way that it is no longer in the state's best interest to break the rules. 109 However, not all members of the international community can actually give any significant effect to actually pressure the particular state. An example to that would be the Land and Maritime Boundary Case. Surely, if very small states like Vanuatuapply the most stringent sanction, it is hard to imagine that there will be any actual effects.This is perhaps why it had to be the UK, France, and the USA that took part in the pressures. The more serious effect, though, would be in the fact that the attempts of an overwhelming majority can be thwarted by a very small minority (in quantity).
The situation where that could happen is when the law is violated by a very powerful state, or an ally to that very powerful state. It has been shown in the previous subsection how the USA can succumb to international pressure at times, but in the section of Enforcement by "Authorities" we have seen how the USA still refused to comply with the Nicaragua Case judgement despite a GA Resolution passed against them. Another example is how China could get away with all the human rights abuses that it has done (e.g. the Tiananmen massacre), not only because it has veto rights in the SC, but also because they are such a big international superpower so that they could just ignore the pressure, or claiming to take 'commitments' but without any concrete results. 110