As students are first exposed to international legal materials there may be a degree of skepticism about the importance of international law. Some may believe that international law is merely illusionary since governments seem to comply with it only out of convenience and disregard it whenever a contrary interest appears. Others may suspect that international law cannot really be law since there is no effective world legislature, judiciary, or police force to enforce it.
In fact, government compliance with international law is the norm and noncompliance is the very rare exception. There are over 45,000 international treaties, which fill 1,800 thick volumes — usually located in some obscure place in a law school library.1 Fortunately, they are also available electronically via CD-Rom, Lexis, Westlaw, and various sites on the Internet. Treaties govern every aspect of international relations and commerce, including air travel, telephone communications, television broadcasting, mail delivery, weather reporting, private contracts, protection of the environment, human rights, and trade with foreign countries. Breaches are infrequent and not without significant costs as discussed below.
Although there is not a world legislature per se, there is an international legislative process, which takes one of two forms. The first relates to bilateral treaties, which are negotiated and enforced in a manner similar to domestic contracts. The second process relates to multilateral treaties, which are adopted by the United Nations or a Diplomatic Conference of States (in international law, the term “States” means countries). This process can be very similar to the domestic legislative process, with the exception that the laws do not immediately go into effect when the United Nations or Diplomatic Conference approves the text of a treaty. Rather, each State becomes bound to the treaty only when it has been approved through the State’s internally proscribed process.
While there is no single international judiciary, there are numerous international courts established by treaty which clarify and develop law, resolve disputes impartially, and impel nations to observe the law. The most influential of these are the International Court of Justice, the World Trade Organization, the Law of the Sea Tribunal, and Western Europe’s two regional international courts — the European Court of Human Rights at Strasbourg and the European Court of Justice at Luxembourg. In addition, there are two Security Council-created international war crimes tribunals (for the former Yugoslavia and Rwanda), three hybrid international criminal tribunals (for Sierra Leone, Cambodia, and Lebanon), and a permanent international criminal court established by treaty. International law is also interpreted by numerous international arbitral tribunals, such as the U.S.-Iran Claims Tribunal. But most frequently, international law is litigated in domestic courts.
While there is no international police system whose pervasive presence might deter violation, that does not mean that international law is without effective mechanisms for enforcement. With respect to the most egregious breaches, the U.N. Security Council can impose economic sanctions, freeze assets, and even employ military force to compel compliance. The New York Convention on the Recognition and Enforcement of Arbitral Awards provides a means for enforcing international arbitration awards using the assets of the liable party located in any of the over 100 States Parties to the Convention. As with domestic contracts, the most frequent and effective means of inducing compliance with treaty obligations is by the suspension of reciprocal obligations by the non-breaching party until the breach is remedied. In addition, international law is routinely enforced by individual States through their domestic laws, courts, and police forces. Thus, for example, Article I, Section 8, of the U.S. Constitution empowers Congress to “define and punish … offenses against the Law of Nations.”
Michael P. Scharf,
Interim Dean and Joseph C. Hostetler, BakerHostetler Professor of Law
Case Western Reserve University School of Law
