The Problematic Regulation of Responsibility of the Contracting Parties for Breach of Treaties and International Agreements

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 (erga omnes). Unsurprisingly, during the execution of an international instrument, it is likely that any contracting States violate 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 (ILC) 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 internally wrongful acts. Surprisingly, the legal consequences in Article 30 consist of ceasing that act if it is continuing or ensured by the infringing State, while Article 33 sets the obligation to repair the damages fully[1]. Worse than that, the non-binding decisions of international organs, including the Security Council and other adjudication organs, are not enough to compel the contracting parties to perform international obligations. Therefore, I argue that international law is ineffective in regulating the states‘ responsibility for breaches of obligations arising from the treaties and international agreements because it lacks the required binding character. In analyzing this ineffectiveness, I will briefly discuss the regulation of the States‘ responsibility in international law, the related challenges, and alternative solutions to address them.

AN OVERVIEW OF REGULATION OF THE 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[2], while the victim State may suspend, withdraw, or terminate the treaty in response to it[3]. In this section, I discuss the regulation of State responsibility by international law, emphasizing its ineffectiveness.

Breach of Obligations Arising from the Breach of Peremptory Norm of General International Law

Peremptory norms (jus cogens) are non-derogable norms accepted and recognized by all States[4]. In other words, any treaties, customary rules, or national laws contrary to these norms become invalid as they are contrary to the jus cogens. According to Article 26 of the ILC, obligations arising from the peremptory norms are incumbent on the responsibility of the wrongful State[5]. 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 (jus cogens) concern vital interests of the international community.

Equally important, erga omnes norms give third States (other than the injured States) legal claims against the violator of international obligation. Therefore, I submit that the duty to abide by jus cogens norms is an obligation to the international community (erga omnes). As a result, violations of some or all jus cogens norms may be enforceable by states individually or collectively[6], even without a direct injury other than the fact that the norm has been violated[7]. In some instances, the capacity to respond to the breach of an obligation jus cogens belongs (within a precise limit) to states other than those whose rights have been infringed[8]. In other words, third states have certain rights to respond to violations of international human rights laws.

However, referring to the Nicaragua case (the 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-defense[9]. 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[10]. 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[11].
However, the VCLT recognizes that when cooperating, all other parties are free to react against material breaches of multilateral treaties[12]. This article reads that they can terminate it in the relations between themselves, the defaulting State, or 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[13].

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[14]. An alternative way for the parties is to settle and enforce these treaty obligations through international courts and tribunals outside the UN system[15].

The VCLT requires that parties transmit treaties to the UN Secretariat after entering into force for registration, filing, recording, or publication[16]. However, the ICJ does not solely rely on registration to decide on the legal status of the instrument and legal obligations arising from it. For example, in the Aegean Sea Continental Shelf between Greece and Turkey on 1975 joint communiqué between the Greek and Turkish Prime Ministers, the Court made an affirmative position and found that the communiqué was not an international agreement conferring jurisdiction on it but considered the nature of the act or transaction and the circumstances in which the communiqué was drawn up, and determined that it constituted an agreement[17]. In another case on the exchange of the agreed Minutes between Qatar and Bahrain in 1990, ruled in favor of Qatar basing on the textual formulation that reflected the parties‘ intention to conclude a legally binding instrument because that instrument was signed by a foreign Minister as one of the Big Three, and having referred to ICJ arbitration for dispute resolution made the 1990 Bahrain v Qatar Minutes legally binding[18]. Based on these cases, I can conclude that the nonregistration 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 the State Responsibility for Non-Performance of Breach of Treaties and International Agreements

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[19]. A state party to a treaty or international agreement can strategically deviate from its responsibility by making reservations on some treaty or international agreement 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[20].

Conditional Application of Measures against the 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 does not constitute a breach by the State applying these countermeasures[21]. However, the ILC conditions these countermeasures to performance for the time of international obligation and to permit the resumption of the obligation in question[22]. In other circumstances, a material breach of a treaty may consist of the repudiation of a treaty[23], 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[24].

The Legal Instruments Regulating the Responsibility of Actors for Breach of International Law

Beforehand, I must signal that the Vienna Convention on the Law of Treaties (the Convention) 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 in the scope of the Convention[25]. 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[26]. Another critical aspect is the customary international law that 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[27]. The draft articles of the ILC regulate legal consequences for that breach, namely, making full reparation, restitution, compensation, or satisfaction[28]. Based on this gap and non-binding ICJ‘s rulings, I infer that international law is impractical in regulating the 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[29].

THE PROBLEMS RELATED TO THE REGULATION OF RESPONSIBILITY OF THE CONTRACTING PARTIES FOR BREACH OF TREATIES AND INTERNATIONAL AGREEMENTS

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 and International Agreements

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[30]. On the other hand, I agree with Postner and Skyes 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[31]. Thus, this approach favors the strong and hurts the weak[32]. 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 the traditional unilateral retaliation action. However, the States never formally accepted them, and they lacked any binding force on the States.

The Status of Damages and Injured State

Generally, Article 40 (3) of the ILC draft articles treats all states as injured states involving an international crime[33]. 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[34]. For example, In the Persian Gulf (the war between Iran and Iraq), some neutral states deployed armed forces to assist the UN forces in protecting their flag vessels from illegal attacks by the belligerents because the UN forces produced no relief[35]. These forces were not targeting 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-defense as an exception to the prohibition of using force[36]. Surprisingly, this article did not regulate other alternatives for unilateral acts/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 (NATO) launched a military intervention (without the Security Council‘s authorization) that aimed to prevent Serbian forces from committing human rights violations[37]. I believe every State should exhaust peaceful means other than those involving force.

Lack of Implementation Mechanisms of the Measures Against Breach of International Law

Firstly, I must stress that in the absence of enforcement organs, state parties comply with the obligations arising from the 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[38]. Consequently, if a party violates a treaty or international agreement, the sanction must often take the form of countermeasures imposed by another nation or nation[39]. 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 the sanctions typically require adequate follow-up and knowledge about the country and its population[40].

However, operational and political difficulties in achieving their objectives include legal loopholes, lack of trained staff, and lack of control and reporting mechanisms, which worsens corruption in many targeted countries[41]. Politically, the UN is an umbrella of the five permanent members of the Security Council, a channel by which they legitimize their actions[42].

The Impact of the Lack of Binding Force of the United Nations Resolutions

Many cases prove the inefficacy of the countermeasures resulting from the lack of binding force and inconsistency of UN resolutions[43]. The Iranian case (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 program[44]. The experience from this case pushes me to conclude that the UN had failed to make its sanctions work successfully.

Difficulties in Implementing the Measures Against the Superpowers

The current war between Russia and Ukraine is a critical point worth analyzing regarding the total 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[45]. They prompted Russia to increase its ties with China, which did not participate in these sanctions[46]. Unsurprisingly, few states (only 40 states) participated in sanctions against Russia[47]. 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 the State’s Breach of Treaty Obligations

Beforehand, I do not doubt that economic sanctions are ineffective, harmful to the economic interests of both the imposing and receiving States, and can impose their great hardships on innocent and vulnerable populations[48]. There is not a single case that can prove that economic sanctions have been fruitful. Instead, taking the example of Iraq in the 1990s, sanctions were applied against the entire country in response to the regime that became more repressive, caused ordinary Iraqis to suffer the most from the sanctions, and food imports and medical supplies reduced, causing widespread malnutrition and starvation, impoverished the population, many people especially children died[49].

Regrettably, the 1995 Oil-For-Food program in Iraq resulted in malnutrition, different diseases, and higher infant and child mortality rates, which constituted a severe humanitarian crisis[50]. Another case is North Korea, where these 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 program that it considered the most crucial issue for the country‘s survival[51] and test nuclear missiles[52]. Said otherwise, economic sanctions did not hamper North Korea from developing nuclear programs
because it has been able to get the materials and continue its policy by developing on its own, using different means of evading sanctions[53].

ALTERNATIVE SOLUTIONS TO ADDRESS THE ISSUES OF REGULATION OF RESPONSIBILITY OF THE PARTIES TO TREATIES AND INTERNATIONAL AGREEMENTS

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.

Enforcement of Peaceful Mechanisms as Alternative Remedial 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[54]. Concerning the third State‘s involvement, the draft of ILC recognizes that if an international crime were committed, every State would be obligated to support enforcement actions by others and to avoid supporting the violator. However, it conditioned that third-state responses to such crimes would be carried out under the auspices of the United Nations, but only when the machinery for such collective action was available[55].

The Need for Conceptualization of the Measures

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[56]. The cases I discussed earlier prove the lack of a thorough pre-assessment to identify the country‘s reality before imposing harsh measures[57]. 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 since they worsen the situation.

Setting Strategic Objectives for the Sustainability and Effective Enforcement of the Measures

In reality, economic sanctions are among the measures that violate the ideal objective of human rights protection[58]. In other words, the sanctions imposed on countries worsen the problematic lives of vulnerable citizens; that way, economic sanctions cannot be effective without clear objectives and a thorough pre-assessment[59]. The cases I discussed in the sections above have proven the inadequacy of the measures, the process of setting them, and their enforcement.

CONCLUSION

The objective of the measures set by international laws for the 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 interests. 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 multilateral treaties. The concern I raised in this paper is the right of the injured State to apply unilateral measures, which can amount to the self-help system, the application of collective measures, and their outcomes.
As a solution, since treaties and international agreements constitute an explicit contract (treaty) or an implicit contract (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 the sanctions are to be applied, they should be highly targeted and contain precise enforcement mechanisms by comparing the costs and benefits that sanctions provide because injury to innocents is a drawback. In doing so, they 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 culminant issue that needs particular attention. That way, non‐state actors and international organizations should increase their ground support to propose policy implementation of treaties and international agreements and corrective measures accordingly.

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List of Footnotes

[1]International Law Commission, ―Responsibility of States for Internationally Wrongful Acts‖ (New York: United Nations, 2001), arts. 1, 12, 28, 30, 31.
[2]International Law Commission, arts. 30, 31.
[3] O. Elagab, ―The Legality of Non-Forcible Countermeasures in International Law‖
(PhD Thesis, University of Oxford, 1986), 29–30, https://ora.ox.ac.uk/objects/uuid:bbb45168-8338-447a-bf4a-fe4e47834e3e. Accessed 31
January 2024; United Nations, ―Vienna Convention on the Law of Treaties,‖ UNTS 1155 (May): 331 § (1969), arts. 54, 60.
[4]United Nations, Vienna Convention on the Law of Treaties, art. 53.
[5] International Law Commission, ―Responsibility of States for Internationally Wrongful Acts,‖ art. 26.
[6]International Law Commission, art. 42.
[7]Theodore Meron, ―On a Hierarchy of International Human Rights,‖ The American Journal of International Law 80, no. 1 (1986): 11–12, https://doi.org/10.2307/2202481.
[8] P. Klein, ―Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of International Law and United Nations Law,‖ European Journal of International Law 13, no. 5 (December 1, 2002): 1244, https://doi.org/10.1093/ejil/13.5.1241. Accessed 3 January 2024.
[9]International Court of Justice, Nicaragua v USA: Case concerning Military and Paramilitary Activities: (Merits), No. ICJ Rep. 14 (ICJ 1986); United Nations, ―Charter of the United Nations and Statute of the International Court of Justice,‖ Pub. L. No. 1 U.N.T.S. XVI (1945), art. 51.
[10]Bruno Simma and Christian J. Tams, ―Reacting against Treaty Breaches, in The Oxford Guide to Treaties, ed. Duncan B. Hollis, 2nd ed. (Oxford University Press, 2020),
581, https://repository.law.umich.edu/book_chapters. Accessed 31 January 2024.
[11]Organization of American States (OAS), ―American Convention on Human Rights, ‗Pact of San Jose,‘ Costa Rica‖ (1969), art. 45, https://www.refworld.org/docid/3ae6b36510.html. Accessed 3 February 2024.
[12]United Nations, Vienna Convention on the Law of Treaties, art. 60(2)(a).
[13]United Nations, art. 60(2)(c).
[14]United Nations, Charter of the United Nations and Statute of the International Court of Justice, art. 102.
[15]David H. Anderson, ―Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar),‖ A.J.I.L 106, no. 4 (October 2012): 819, https://doi.org/10.5305/amerjintelaw.106.4.0817. Accessed 29 January 2024.
[16]United Nations, Vienna Convention on the Law of Treaties, art. 80(1).
[17]International Court of Justice, Aegean Sea Continental Shey, Judgment, ICJ Reports 1978: GREECE v. TURKEY, No. CL-0239 (December 19, 1978).
[18]Jan Klabbers, ―Qatar v. Bahrain: The Concept of Treaty in International Law,‖ Archiv Des Völkerrechts 33, no. 3 (1995): 368.
[19]Jack L. Goldsmith and Eric A. Posner, The Limits of International Law, 1st ed. (Oxford ; New York: Oxford University Press, 2007), 138.
[20]E. Allan Farnsworth, Contracts, 4th ed. (New York: Aspen Publishers, 2004), 11.
[21]International Law Commission, ―Responsibility of States for Internationally Wrongful Acts,‖ art. 22.
[22]International Labour Office and InFocus Programme on Promoting the Declaration, eds., The International Labour Organization’s Fundamental Conventions (Geneva: ILO, 2002), art. 49.
[23]Arnold D. McNair, The Law of Treaties, Repr (Oxford: Clarendon Pr, 2003), 571.
[24]PCA Case No 2012-04, ICGJ 509 (PCA 2016), Oxford Reports on International Law (PCA 2016).
[25]International Law Commission, ―Responsibility of States for Internationally Wrongful Acts,‖ art. 60.
[26]United Nations, Charter of the United Nations and Statute of the International Court of Justice, arts. 39–50.
[27]Shabtai Rosenne, Rosenne’s Law and Practice of the International Court, 1920-
2015., Fifth edition / by Malcolm N. Shaw QC. (Leiden ; BRILL NIJHOFF, 2016), 518–20.
[28]International Law Commission, ―Responsibility of States for Internationally Wrongful Acts,‖ arts. 31, 35, 36, 37.
[29]UN Security Council (58th, ―Resolution 1474 (2003)‖ (2003), para. 1, https://digitallibrary.un.org/record/491839. Accessed 3 February 2024.
[30]Herbert W. Briggs, ―Breach of Treaty. By Shabtai Rosenne. Cambridge: Grotius Publications Limited,‖ A.J.I.L 82, no. 2 (April 1988): 388, https://doi.org/10.2307/2203207. Accessed 5 February 2024.
[31]Lori F. Damrosch and Sean D. Murphy, International Law: Cases and Materials, 70th ed., American Casebook Series (St. Paul, MN: West Academic Publishing, 2019), 713, https://scholarship.law.columbia.edu/books/209/. Visited 2 February 2024.
[32]Eric A. Posner and Alan O. Sykes, ―Efficient Breach of International Law: Optimal Remedies, ‗Legalized Non-Compliance,‘ and Related Issues,‖ SSRN Electronic Journal, 2011, 114–15, https://doi.org/10.2139/ssrn.1780463. Accessed 30 January 2024.
[33]International Law Commission, ―Responsibility of States for Internationally Wrongful Acts,‖ art. 40(3).
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Jean Marie Vianney Sikubwabo

Accredited court Mediator, university Lecturer, doctoral student (EUCLID university)

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