Effectiveness of law refers to whether the law has changed a state’s behavior from what it would have been in the absence of the law. There are four senses of effectiveness of international law, effectiveness as compliance, as inducing compliance, as enforcement, and as providing moral reason for compliance.1 This means that, in order for a law to be effective parties must agree to comply to it. Which is why the international committee provides enforcement mechanisms, which are methods used to induce compliance and increase cooperation from international bodies, to increase the effectivity of international law. These enforcement mechanisms fulfill states’ immediate interests. But despite using these enforcement mechanisms, the international committee still currently faces non-compliance and the possible unenforceability of the International Court of Justice, as one of the major problems encountered in international law.2 But why is non-compliance, still a major problem in international law if they are already using enforcement mechanisms that encourages compliance?
Many would argue that this is due to the lack of enforcement mechanism but is this really the reason? In this essay, I will explore the status of enforcement mechanisms used in international law, and its effect to the overall effectivity of the law, using, principles, treaties, major researches, and related jurisprudence.
Compliance, Effectiveness, and Enforcement Mechanisms.
Compliance is defined as the degree to which state behavior conforms to what an agreement prescribe or prescribes.3 This is different to effectiveness which is when an agreement has an impact on behavior, thereby improving or solving the problem that led to the agreement’s formation.4 But still, in many cases, they work together. Both of them usually are a result of effective enforcement mechanisms. That is, an effective enforcement mechanism, results in compliance, and eventually if successful, will result in the effectiveness of international law.
Enforcement mechanisms fall into two categories, positive enforcement mechanisms and negative enforcement mechanisms. Positive enforcement mechanisms encourage compliance in a positive way, these may be through rewards such as monetary, political or social. Other examples of these are transparency, and dispute resolution process. On the other hand, negative enforcement mechanisms are punitive measures, in the form of sanctions, reparations, and agreement withdrawal.5 In an international system where there is no overarching authoritative enforcer, punishment for non-compliance function differently. States are more likely to use fear tactics, such as reciprocity, collective action, and shaming.6 In designing negative enforcement mechanisms, meaningful punishment for a violation should be inflicted, without making the costs so high it is better for the violator to just withdraw from the agreement.7
Effectiveness as a Problem of Enforcement
Most of the time, effectiveness of international law is viewed as a problem of enforcement. Most researchers argue that enforcement mechanisms, or rather the lack thereof, are the reason for the ineffectiveness of enforcement mechanisms to increase compliance. In line with this, I explored the common enforcement mechanisms used by the international community, and evaluated its success and the effect of this success to the effectiveness of international law.
Rewards as Enforcement Mechanisms
Rewards as an enforcement mechanism are usually used as side payments to forge international cooperation.8 Most of the time this is a weak mechanism since it is often difficult, if not possible, to assess what kinds of rewards would be appropriate to extend as a price for such a concession.9 In many occasions, this mechanism is ineffective because of many reasons such as: inadequate reward, and no price can equal the value of what is at risk in the agreement. This leaves states to either endure the other state’s behavior or pursue military sanctions.
Transparency as Enforcement Mechanisms
Transparency involves collecting and sharing of information at its most basic level. It also includes policy formation and mechanisms for publicizing information.10 This is obviously ineffective because if two parties to an agreement agree that their compliance or non-compliance to the agreement will be made public, violation of the agreement could possibly hurt the peace process.11 Most states would disagree with this mechanism since the peace between state is a higher risk than they are willing to take for the agreement.
Dispute Resolution Processes as Enforcement Mechanisms
Dispute resolution processes create space for mediation of disagreements over enforcement and also allows unclear aspects of the agreement to be reviewed and interpreted after the fact.9 Compared to the other previously mentioned mechanism, this has a high chance of increasing the effectivity of international law. Since, this is an indication that the agreement would be fair for the parties.
Sanctions as Enforcement Mechanisms
Sanctions are social, political or economic punishments against a government.10 Sanctions are ineffective when the targeted state has no capacity to comply with the agreement. It would be absurd to punish a state for non-compliance when they don’t have the ability to. Appropriate discernment as to what sanctions to be imposed on a state is needed in order for this mechanism to be effective.
Reparations as Enforcement Mechanisms
Reparations are only manageable in low intensity conflicts and function only when economically reasonable.11 This is more difficult to enact in the wake of armed violence. One example of is the failure of the Treaty of Versailles that ended World War I. It is ineffective since the losing party in a war, usually does not have the capacity to make reparations, and doing so, the poorest segments of the society who were likely victims themselves during the conflict would suffer the most. 12 This is ineffective since its purpose, most of the time, is impossible to be complied to. But this mechanism may be challenged because it is not always possible to limit the punishment to the violator.13 This problem is common in environmental affairs with respect to nature. The threat of dangerous emissions may be deemed by a state as not harmful enough to respect its obligations in international law.
Agreement Withdrawal as Enforcement Mechanisms
Agreement withdrawal is one of the greatest threats from an agreement. Typically, circumstances under an agreement, should be better for all parties than circumstances without the agreement.14 This is an effective enforcement mechanism since most of the parties who entered an agreement would did so, because of their interest. Withdrawal of the other parties from an agreement that is important to the state would definitely change its behavior in fear of losing the agreement.
Fear Tactics as Enforcement Mechanisms
Reciprocity is a type of enforcement mechanism by which states are assured that if they offend another state, the other state will respond by returning the same behavior.15 This is an effective enforcement mechanism since both parties would surely get an equal gain in the agreement, since they would both get the same thing from one another.
Collective Action is when several states act together against one state to produce a punitive result.16 This is an effective enforcement mechanism since it leaves the other state with no choice but to comply. Collective action gives makes one side powerful enough to be feared by the other state. But the problem with this is when the parties fails to cooperate because of conflicting interests that discourages joint action.
Shaming, also known as “name and shame” approach, are public statements regarding a state’s offending behavior.17 It is often an effective enforcement mechanism because most states dislike negative publicity and will actively try to avoid it. But this is rather ineffective to states which does not have a problem with negative reputation. An example of this is when Obama commented on the Philippines’ extra-judicial killings. Philippines’ current president as of writing, even commented back that they should mind their own business.
Effectiveness as a Problem of Application
The most limiting factor in the enforcement of international law is the actual decision-making process of the Security Council resolution.18 It is because the enforcement decisions is limited by the willingness of certain countries.19 Appropriate discernment, as to the interest, culture, and other factors that affects the willingness by the countries to comply, should be done before enforcing this mechanisms. This should include a formation of a system whereby the organization can implement their decisions.