How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
EDITORIAL NOTE *
The author of this article works at the United Nations High Commissioner for Refugees; the views expressed here are his own and do not reflect the official position, past, present or future, of the United Nations or of UNHCR.
ABSTRACT *
This article examines the regulation of state responsibility for breaches of treaties and international agreements, and argues that international law is ineffective in this field because it lacks binding enforcement. After setting out the relevant provisions of the Articles on Responsibility of States for Internationally Wrongful Acts and of the Vienna Convention on the Law of Treaties, the author considers obligations arising from peremptory norms and obligations owed to the international community as a whole, the question of standing to respond to breaches of multilateral and human rights treaties, the legal status of unregistered instruments, and the permissible routes by which states may deviate from treaty obligations through reservations, withdrawal and countermeasures. A second section identifies the resulting difficulties: countermeasures available in practice only to powerful states, the unresolved question of who counts as an injured state, the absence of implementation machinery, the limited binding force of resolutions, and the record of economic sanctions. The author closes with proposals centred on peaceful mechanisms, prior assessment before measures are imposed, and clearly defined objectives.
KEYWORDS *
State responsibility, treaty breach, Vienna Convention on the Law of Treaties, jus cogens, erga omnes, countermeasures, standing, International Law Commission, sanctions, enforcement, Security Council, compliance
INTRODUCTION
Treaties and international agreements play a critical role in regulating international relations, especially most relationships between states. Additionally, customary law establishes all parties’ legal rights and duties to a treaty. Unsurprisingly, during the execution of an international instrument, it is likely that a contracting state violates any of the agreed-upon provisions of the instrument. The responses to the breach of a treaty are regulated in both the law of treaties and the law of state responsibility, the latter governing responses to a breach of any international obligation and, therefore, also of obligations arising from treaties.
Article one of the International Law Commission’s Articles on Responsibility of States sets the basic principle of international responsibility of states for breach of international law. Article 12 emphasizes disconformity with international obligation, regardless of origin, while Article 28 evokes legal consequences arising from internationally wrongful acts. The legal consequences in Article 30 consist of ceasing that act if it is continuing, while Article 31 sets the obligation to repair the damages fully. Worse than that, the non-binding decisions of international organs, including adjudicatory bodies, are not enough to compel the contracting parties to perform international obligations. Therefore, I argue that international law is ineffective in regulating states’ responsibility for breaches of obligations arising from treaties and international agreements because it lacks the required binding character. In analyzing this ineffectiveness, I will briefly discuss the regulation of states’ responsibility in international law, the related challenges, and alternative solutions to address them.
MAIN CORPUS
An overview of the regulation of state responsibility for breach of treaty obligations
A treaty breach is an internationally wrongful act and entails the ensuing duties of cessation where applicable, suspension, termination, and reparation. More importantly, the general rules of responsibility induce the infringing state to cease the act and make full reparation, while the victim state may suspend, withdraw from, or terminate the treaty in response to it. In this section, I discuss the regulation of state responsibility by international law, emphasizing its ineffectiveness.
Breach of obligations arising from peremptory norms of general international law
Peremptory norms, or jus cogens, are non-derogable norms accepted and recognized by all states. In other words, any treaties, customary rules, or national laws contrary to these norms become invalid as they are contrary to jus cogens. According to Article 26 of the Articles on State Responsibility, obligations arising from peremptory norms are incumbent on the responsibility of the wrongful state. I can deduce that the reason for not precluding the wrongfulness of any state’s act which is in disconformity with these norms is because peremptory norms concern vital interests of the international community.
Equally important, erga omnes norms give third states, other than the injured state, legal claims against the violator of an international obligation. Therefore, I submit that the duty to abide by jus cogens norms is an obligation to the international community. As a result, violations of some or all jus cogens norms may be enforceable by states individually or collectively, even without a direct injury other than the fact that the norm has been violated. In some instances, the capacity to respond to the breach of an obligation of jus cogens belongs, within precise limits, to states other than those whose rights have been infringed. In other words, third states have certain rights to respond to violations of international human rights law.
However, referring to the Nicaragua case in its merits phase, the Court refused to uphold the legality of the United States’ unilateral use of force in response to Nicaragua’s alleged attacks on other Central American states, which did not constitute the right of collective self-defence. On the other hand, customary rules include rules such as the ban on aggression and genocide and the protection of fundamental rights of human beings, to name just a few, which have an absolute value, and their breach concerns the international community as a whole.
The standing to respond against material breach of human rights treaties
Contrary to bilateral treaties, by which if one state violates a bilateral treaty materially the other party has standing to respond to that breach, material breaches of multilateral and human rights treaties do not affect any other treaty party in a particular way. Hence, no other state often has standing to suspend or terminate human rights treaties. That is why some treaties recognize the right of every state party to respond against breaches, and within regimes providing for regular recourse to third-party dispute resolution, some courts or tribunals have clarified the requirement of locus standi.
However, the Vienna Convention recognizes that when cooperating, all other parties are free to react against material breaches of multilateral treaties. This article provides that they can terminate it in the relations between themselves, with the defaulting state, or as between all parties. In other words, they may unanimously choose between finally or temporarily expelling the violator from the treaty or ending their treaty relationship. Article 60(2)(c) complicates the matter by recognizing that for a small circle of obligations, each party to a treaty can respond to material breaches individually, irrespective of any particular injury, thus accepting the premise of the solidarity approach.
Breach of unregistered international instruments
Registration of treaties and international agreements is an obligation since the UN Charter does not allow the invocation of unregistered treaties or international agreements before a UN organ. An alternative way for the parties is to settle and enforce these treaty obligations through international courts and tribunals outside the UN system.
The Vienna Convention requires that parties transmit treaties to the UN Secretariat after entry into force for registration, filing, recording, or publication. However, the ICJ does not solely rely on registration to decide on the legal status of an instrument and the legal obligations arising from it. For example, in the Aegean Sea Continental Shelf case between Greece and Turkey concerning the 1975 joint communiqué between the Greek and Turkish Prime Ministers, the Court considered the nature of the act or transaction and the circumstances in which the communiqué was drawn up in determining its legal character. In another case, on the exchange of agreed Minutes between Qatar and Bahrain in 1990, the Court ruled in favour of Qatar on the basis of the textual formulation that reflected the parties’ intention to conclude a legally binding instrument, since that instrument was signed by a foreign minister and referred to the ICJ for dispute resolution. Based on these cases, I can conclude that the non-registration of an international instrument with the UN Secretariat does not affect its legal nature nor preclude the state’s responsibility for the breach of that instrument.
Permissible deviation from state responsibility
When discussing the lack of state responsibility for breach of treaties or international agreements, it is critical to consider the rules and practices that allow state parties to deviate from or avoid specific treaty obligations. These include the rules for withdrawal from treaties and the rules governing reservations in treaties. A state party to a treaty or international agreement can strategically deviate from its responsibility by making reservations on some provisions. Other strategic deviation may consist of unilateral retaliation by the victim state, which may have the right to retaliate by breaching its obligations. I can derive from this statement that the breach of a treaty in the form of retaliation should not be viewed as a violation of the law.
Conditional application of measures against state responsibility for internationally wrongful acts
Countermeasures aim to compel the defaulting state to cease its violation of international law and restore the situation that would have existed had there been no such violation, and do not constitute a breach by the state applying these countermeasures. However, the Articles on State Responsibility condition these countermeasures on their being temporary and on permitting the resumption of the obligation in question. In other circumstances, a material breach of a treaty may consist of the repudiation of a treaty, that is, any attempt by a state to relieve itself from its obligations. For example, in an arbitration case between Slovenia and Croatia, the Arbitral Tribunal clarified that repudiation meant the rejection of a treaty as a whole.
The legal instruments regulating responsibility for breach of international law
I must signal that the Vienna Convention on the Law of Treaties provides for actions that the infringed state can take in case of breach of a treaty but does not regulate the responsibility of the infringing state, which is not within the scope of the Convention. In the same trend, the UN Charter established a role for third states, through the Security Council, to become actively involved when they respond collectively to threats to the peace or acts of aggression by states. Another critical aspect is customary international law, which recognizes that a breach by any state party to an international agreement constitutes an injury to the legal rights of all parties regardless of whether they have suffered direct tangible injuries. The draft articles of the ILC regulate legal consequences for that breach, namely making full reparation through restitution, compensation, or satisfaction. Based on this gap and non-binding rulings, I infer that international law is impractical in regulating states’ responsibility for breach of treaties and international agreements. On this note, I was impressed by the Security Council’s practice, which illustrates how obligations can be directed to non-state actors, including counter-terrorism, arms embargoes, and access to humanitarian assistance.
The problems related to the regulation of responsibility for breach of treaties
In this section, I will critically discuss the problematic regulation of the contracting parties’ responsibility for breach of treaties and international agreements. The main problems include non-binding legal instruments, invocation of breach of multilateral treaties, damages, and countermeasures, the consequences of comprehensive sanctions, and the lack of designated organs to ensure compliance with resolutions against breach of international law.
The problems of the measures in response to the breach of treaties
As I introduced earlier, the consequences of a breach of treaties and international agreements include countermeasures allowing a state that has had its rights breached by another to temporarily derogate from its international obligations to compel the other state’s compliance. On the other hand, I agree with Posner and Sykes that remedies are not an adequate solution for the breach of treaties and international agreements since only powerful states can afford to take these measures. Thus, this approach favours the strong and hurts the weak. Therefore, I am convinced that the ILC draft articles should be an excellent solution to the absence of formal rules about remedies that ensure oversight of traditional unilateral retaliation. However, the states never formally adopted them as a treaty, and they lack binding force on the states.
The status of damages and the injured state
Generally, the ILC draft articles treat all states as concerned where an obligation to the international community as a whole is breached. However, the fact that all states are concerned about the breach of multilateral obligations and may strive to protect their legal interest in those obligations does not imply they should be treated as injured if their rights have not been affected. In other words, enforcement of remedies against a breach of an international obligation may be undertaken by non-injured states or particular groups of states. For example, in the Persian Gulf during the war between Iran and Iraq, some neutral states deployed armed forces to assist in protecting their flag vessels from illegal attacks by the belligerents. These forces were not aiming to protect the vessels of particular states but to protect the freedom of navigation for vessels of all flags. In my view, for multilateral obligations, one cannot grant all states the specific rights of the injured state. Another issue is applying Article 51 of the UN Charter and individual self-defence as an exception to the prohibition on the use of force. Surprisingly, this article did not regulate other alternatives for unilateral acts or measures. Moreover, collective security measures have proven ineffective and sometimes violate the UN Charter. One example is the Serbian case in which the North Atlantic Treaty Organization launched a military intervention without the Security Council’s authorization, which aimed to prevent Serbian forces from committing human rights violations. I believe every state should exhaust peaceful means other than those involving force.
Lack of implementation mechanisms
Firstly, I must stress that in the absence of enforcement organs, state parties comply with the obligations arising from treaties and international agreements only if that compliance satisfies their interests. Therefore, I agree with Telser that, because of the absence of an enforcement organ, the other party can terminate the agreement if one party violates the terms. Consequently, if a party violates a treaty or international agreement, the sanction must often take the form of countermeasures imposed by another nation or nations. The same is true for unilateral countermeasures because the sanctioning state is the one to determine the enforcement of the measures. Effective implementation mechanisms for sanctions typically require adequate follow-up and knowledge about the country and its population.
However, operational and political difficulties in achieving their objectives include legal loopholes, lack of trained staff, and lack of control and reporting mechanisms, which worsen corruption in many targeted countries. Politically, the UN is an umbrella of the five permanent members of the Security Council, a channel by which they legitimize their actions.
The impact of the lack of binding force of resolutions
Many cases prove the inefficacy of countermeasures resulting from the lack of binding force and inconsistency of resolutions. The Iranian case of 2006 is one of many cases that indicate how the UN has vainly used its sanctions and, instead, allowed the concerned state to reorganize its illegal acts better and develop its nuclear programme. The experience from this case pushes me to conclude that the UN had failed to make its sanctions work successfully.
Difficulties in implementing measures against the superpowers
The current war between Russia and Ukraine is a critical point worth analyzing regarding the failure of international law regarding the responsibility of states for their wrongful acts. Before the Russian invasion of Ukraine in February 2022, the US and NATO countries had vainly tried to deter Russia from invading by threatening to impose massive economic sanctions if Russia invaded. In response, the US, the EU, and Japan applied broad economic sanctions against Russia, but this has not stopped Russia’s military aggression. They prompted Russia to increase its ties with China, which did not participate in these sanctions. Unsurprisingly, few states participated in sanctions against Russia. This warring situation makes me conclude that countermeasures are not the best option when using force is impossible and can only apply to smaller states that usually struggle economically.
Ineffectiveness of economic sanctions in response to breach of treaty obligations
I do not doubt that economic sanctions are ineffective, harmful to the economic interests of both the imposing and receiving states, and can impose great hardship on innocent and vulnerable populations. Taking the example of Iraq in the 1990s, sanctions were applied against the entire country in response to a regime that became more repressive, caused ordinary Iraqis to suffer the most from the sanctions, and reduced food imports and medical supplies, causing widespread malnutrition and impoverishment of the population.
Regrettably, the 1995 Oil-for-Food programme in Iraq did not prevent malnutrition, disease, and higher infant and child mortality rates, which constituted a severe humanitarian crisis. Another case is North Korea, where sanctions worsened human life and caused political and economic insecurity among the civilian population. At the same time, North Korea continued to develop the nuclear programme that it considered the most crucial issue for the country’s survival, and to test nuclear missiles. Said otherwise, economic sanctions did not hamper North Korea from developing nuclear programmes because it has been able to obtain the materials and continue its policy by developing on its own and using different means of evading sanctions.
Alternative solutions
In the sections above, I have discussed the issues related to regulating the contracting parties’ responsibility for breach of international obligations. Apart from the gaps in the international regulation system, the measures applied against breaches of international law cause more problems. In that trend, there is a need to adopt strategic measures against the breach of international obligations, focusing more on peaceful measures.
If corrective actions prove impossible, peaceful measures may play a non-negligible role in response to the state’s responsibility arising from a breach of international law. That way, the injured state may strive to exhaust available measures and respect the related conditions. Concerning third states’ involvement, the ILC recognizes that where a serious breach of a peremptory norm occurs, every state is obliged to cooperate to bring the breach to an end and to avoid supporting the violator.
At first glance, I must emphasize that each country has its particularities and needs. Therefore, paying particular attention to the pre-assessment of the measures would enable a more solid conceptualization and design, thereby maximizing their effectiveness. The cases I discussed earlier prove the lack of a thorough pre-assessment to identify the country’s reality before imposing harsh measures. I understand that the lack of adequate preparation undermines the effectiveness of any measures, though they might have positive objectives. As a solution, I recommend paying particular attention to the country’s particularities, contextualizing the measures, deciding accordingly, or even abandoning them where they would worsen the situation.
In reality, economic sanctions are among the measures that undermine the ideal objective of human rights protection. In other words, the sanctions imposed on countries worsen the difficult lives of vulnerable citizens; that way, economic sanctions cannot be effective without clear objectives and a thorough pre-assessment. The cases I discussed in the sections above have proven the inadequacy of the measures, the process of setting them, and their enforcement.
SUMMARY *
The article’s argument develops in three stages. Doctrinally, a coherent body of rules exists: breach entails cessation and reparation, injured parties may suspend or terminate, third states may respond where obligations to the international community as a whole are at stake, and countermeasures are permitted within defined limits. Practically, every one of these remedies is self-administered, since it is the aggrieved party that decides whether a breach occurred, what response is proportionate, and whether to act at all. Consequently, the author argues, the system distributes remedy according to capability rather than entitlement: a state with economic weight can impose costs, a state without it can invoke rules that no one will enforce on its behalf. The examination of sanctions serves this argument rather than standing apart from it, since sanctions are the principal instrument by which the powerful respond to breach, and their record is what the author sets against the doctrine.
CONCLUSION
The objective of the measures set by international law for a state’s responsibility for breach of treaties and international agreements is to stop the conduct constituting a persistent breach of treaty obligations and norms of the general community interest. In this paper, I argued that some violations might not tangibly injure all the parties, nor would they necessarily infringe upon the full enjoyment of the treaty by every party. For example, there is no specific victim for the breach of an obligation arising from certain multilateral treaties. The concern I raised in this paper is the right of the injured state to apply unilateral measures, which can amount to a self-help system, the application of collective measures, and their outcomes.
As a solution, since treaties and international agreements constitute an explicit contract or an implicit contract in the form of customary international law between the contracting parties, the contracting states should promote other mechanisms that encourage compliance with the obligations where appropriate and facilitate accordingly.
Moreover, if sanctions are to be applied, they should be highly targeted and contain precise enforcement mechanisms, comparing the costs and benefits that sanctions provide, because injury to innocents is a drawback. In doing so, states should explore other alternatives, such as international and diplomatic negotiations. Finally, the lack of internationally designated bodies overseeing the enforcement of international obligations is a culminating issue that needs particular attention. That way, non-state actors and international organizations should increase their support for the implementation of treaties and international agreements and corrective measures accordingly.
POTENTIAL SOLUTION *
The article’s central claim requires one distinction that strengthens rather than weakens it. International law is not unenforceable so much as decentralised: it lacks a police force but not consequences, and the difficulty the author identifies is that those consequences are administered by the parties themselves, which converts a system of rules into a distribution of capability. Stated that way, the diagnosis is precise and it points toward a body of research the article does not use.
That research, which begins from the observation that compliance with international obligations is in fact high across most fields most of the time, identifies why. States comply because they operate in continuing relationships in which reputation is an asset, because treaty obligations become embedded in domestic law and administrative routine where reversal is costly, and because most non compliance arises from capacity failure rather than deliberate defection and is therefore remediable by assistance rather than by penalty. The instruments that follow are the managerial ones: reporting requirements, peer review, technical support, and compliance committees that are non adversarial by design. The Montreal Protocol is the standard illustration, and its implementation committee has resolved far more cases than any sanctions regime.
Two structural points follow from the article’s own material. The Articles on State Responsibility were never adopted as a convention, and the reason is instructive: the provisions on countermeasures and on the consequences of serious breaches were the sticking point, because states with capacity feared constraint and states without it feared licence. That the Articles are nonetheless cited routinely by courts and tribunals as customary law demonstrates that formal adoption is not the only route to authority, and the record suggests they have been more influential unadopted than a heavily amended treaty would have been. And the aspect the author touches on and could develop is that the enforcement gap narrows considerably where compulsory jurisdiction exists: the dispute settlement systems of the World Trade Organization and of the law of the sea produce compliance rates that bear no resemblance to the general picture, because the alternative to compliance is defined in advance and applied by a body neither party controls.
Two suggestions belong here for a journal of this field. The remedies the article treats as exhausting the options are the adversarial ones, and treaty regimes increasingly provide for others: conciliation is available under the Vienna Convention itself, and mandatory conciliation under the Law of the Sea Convention produced a settlement between Timor Leste and Australia on a maritime boundary that adjudication had failed to resolve for decades. Where a dispute concerns interpretation or implementation rather than deliberate repudiation, these mechanisms are faster, cheaper and available to states that could not sustain litigation, which addresses the inequality the author correctly identifies.
Finally, the article’s argument about power carries an implication worth stating. If remedies are effectively reserved to those able to impose costs, then the interest of weaker states lies in strengthening institutional enforcement rather than in preserving the right of self help, since the latter is a right they cannot exercise. That coalition exists, and it accounts for much of the support among smaller states for compulsory jurisdiction, standing tribunals and treaty bodies. The observation that international law favours the strong is usually offered as a criticism of the system; it is more useful as an argument for the part of the system that does not.
* Added by the WMO Editorial Team
REFERENCES
[Bibliography and footnotes as in the original manuscript]Supplementary references added by the WMO Editorial Team
Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, 2001, Articles 41, 42, 48, 49 to 54.
Vienna Convention on the Law of Treaties, 1969, Articles 60, 65 to 68 and Annex on conciliation.
United Nations Convention on the Law of the Sea, 1982, Annex V, and the Timor Sea Conciliation between Timor Leste and Australia, 2016 to 2018.
Montreal Protocol on Substances that Deplete the Ozone Layer, 1987, and the Non Compliance Procedure and Implementation Committee.
Chayes, A., & Chayes, A. H. (1995). The New Sovereignty: Compliance with International Regulatory Agreements. Harvard University Press, Cambridge.
Koh, H. H. (1997). Why Do Nations Obey International Law? Yale Law Journal, 106(8), 2599 to 2659.
Simmons, B. A. (2009). Mobilizing for Human Rights: International Law in Domestic Politics. Cambridge University Press, Cambridge.
Crawford, J. (2013). State Responsibility: The General Part. Cambridge University Press, Cambridge.
