This article is written by Ananya Garg pursuing B.B.A. L.L.B.(H) from Chanakya National Law University. This article discusses what happens in a case where a country violates international law.
To understand the consequences of violation of international law it is imperative that we first understand the term international law. Today’s world has advanced to the extent that international law does not just remain as a set of rules and regulations to direct the conduct of one state towards another. International law is a consistently developing set of complex rules and influential practices, principles, and assertions that are not necessarily binding. It defines legal responsibilities of sovereign states and individual and international organisations, not only concerning their conduct with each other but also encompasses their treatment of the individuals within the state boundary.it is an independent system of laws that exists outside the legal orders of particular states.
International law has no defined area or governing body but consists of a collection of international treaties, accords, charters, agreements, tribunals, protocols, memorandums, legal precedents of the International Court of Justice, and more. Since there is no unique governing and enforcing body it is largely a voluntary endeavor, wherein the power of enforcement only exists when the parties consent to abide by an agreement. Its domain encompasses a wide range of issues of international concern such as environment, migrant labour, drug trafficking, terrorism, disarmament, international crime, etc. It regulates global commons such as space, environment, global communication and world trade, international waters, etc.
The basic aim of international law is to promote social and economic development and maintain international peace and security. It can be divided into public international law and private international law. The former covers the rules, and laws that govern the conduct and dealings between nations and/or their citizens and the latter handles disputes between private citizens of different nations. There being no definitive governing body to legislate and enforce international law, the United Nations is the most widely recognised international organisation and the International Court of Justice is its judicial counterpart.
This article will mainly focus on various aspects of violation of international law such as what constitutes a violation of international law, what are the consequences of such violation, and which bodies are empowered to administer these consequences.
Who can be held responsible for violating international law
Obligations must be respected, they lose their meaning without proper adherence to the rules thereof. International law, not being governed by a global police, is at times violated. Thus, it sets out clear consequences for such violations and these consequences are both collective and individual in nature.
International law not only set outs prohibitions to acts against basic human rights such as torture of the civilians in an armed conflict but also provides for legal ramifications if such acts take place. These ramifications can be broadly divided into state responsibility and individual responsibility. The states are the principal actors in the international legal system, international law deals with the legal responsibility of the states in their conduct with each other. It is also concerned with the treatment of the individuals living in the state boundaries. Thus, only states are not the stakeholders to international law, recent interpretations of international human rights law, international trade law, and international humanitarian law have also included corporations and certain individuals.
All the international treaties which a state has signed are binding on that state, a state is also bound by the customary international rules and regulations. When a state violates any of the treaties to which it is a signatory, or it breaks internationally recognised customs and rules it is said to have committed an internationally wrongful act which constitutes a violation of international law. In such situations, a state can be held responsible for violating international law and it has to face consequences. Such states are obliged to stop the illegal activities immediately and are also entrusted with the responsibility to make reparations to the injured. In addition, the states violating international law must offer guarantees that such violations will not be repeated in the future. The states are legally responsible both towards other states and individuals and it can be held responsible for all the actions of its officials.
it has also been provided for the individuals to be held criminally responsible for international crimes. Each armed force member is directly held responsible for the breaches committed by him/her. Individual criminal responsibility also allows persons who aid, assist, attempt, facilitate, abet, plan, or instigate the commission of a war crime to face accountability for their actions. The military commanders who order their subordinates to violate international humanitarian law are held responsible by the law of armed conflicts.
Corporate accountability implies holding companies responsible for their involvement in violations of international human rights, illegal activities, and international humanitarian law. They are not just held responsible for their direct actions, but also for their complicity in violations of international humanitarian laws and human rights. A corporation’s knowledge of the crime, its intentions, and its actions which helped in the commission of the violation all determine the liability of the corporations.
Who has jurisdiction to deal with the matter concerning violation of International Law
The legal environment of the international law does not have an overreaching sovereign, thus its enforcement differs from that of the domestic law. The absence of a compulsory judicial system to settle a dispute or a coercive penal system to ensure compliance had left the international law compliance largely voluntary. The nations entered into a treaty with a perceived notion of self-interest. But this was not enough to ensure their compliance with the international law at all times. In some cases, the norms upon which the laws are based are self-enforcing, in other cases, during a changing environment, when enough powerful states continually ignore a particular aspect of the international law, that aspect or norm changes according to the customary international law. For example, by World War II unrestricted submarine warfare was so commonly being practised that the authorities ordering this activity were no longer charged with violation of international law.
The states also oversee the compliance of international laws by the other states. When a state violates international law, it may be subject to diplomatic pressure, or economic sanctions. The states may also adopt unilateral sanctions against those who flout international law provisions. In some cases, domestic courts may render judgement against a foreign state for an injury. This comes under the ambit of private international law, it is a complicated area of law as the international law intersects with domestic law. The compliance of such a judgement is not easy to enforce and depends upon the wishes of the subject of the respective judgement, i.e., the state which caused the injury.
There are certain international bodies that claim jurisdiction to deal with the matter when international law is violated. These are discussed below:
The United Nations General Assembly is a deliberative policymaking and representative organ and is empowered to make recommendations. It does not codify international law, nor is it entrusted with making binding resolutions. The resolutions passed by the United Nations General Assembly are generally non-binding in nature towards its member states. The binding resolutions passed by the assembly are internal in nature and are concerned with matters such as budgetary allocations, staff regulation, etc. The violation of the United Nations Charter by the member states may be raised in the General Assembly for debate by the aggrieved members. International bodies created by treaties have jurisdiction over the matters concerning international conflicts. The universal jurisdiction is claimed by the United Nations Security Council, one of the six principal organs of the United Nations, charged with the function of maintaining international peace and security. The other bodies having jurisdiction over the matters concerning violation of international law are the United Nations International Court of Justice (ICJ), headquartered at Hague, the International Criminal Court, and the Court of Arbitration for Sport.
The International Court of Justice, also known as the World Court, is the primary organ of the United Nations for the settlement of disputes. The court addresses international disputes involving the right of passage, non-interference, non-use of force, economic rights, diplomatic relations, right of asylum, hostage-taking, etc. The court prevents the escalation of disputes by giving an impartial solution based on law.
The individuals who commit crimes against humanity such as genocide and war crimes can be prosecuted by the International Criminal Court(ICC). The crime of aggression is also sought to be brought under its jurisdiction and is being given a definition. The International Criminal Court is not a part of the United Nations, it is functionally as well as legally independent from the United Nations.
When does a country violate international law
A country is said to have violated international law when it violates the treaties to which it is a signatory or when it breaks the internationally accepted customs and regulations. The breach of an international obligation is referred to as an internationally wrongful act. Thus, a country committing an internationally wrongful act is liable and can be punished. The customary international law is binding on all states and the International Law Commission’s Article on State Responsibility provides the regulations regarding the violations of the customary law and the consequences thereof. An act of any state organ is also considered as an act of the state under international law.
A state violates international law when it breaches the obligations that are binding upon it at the time such violation occurs.
A state is also liable for violating international law when it aids or assists another state in committing an internationally wrongful act with knowledge of the circumstances.
When a state directs or coerces or controls another state in doing an internationally wrongful act, with full knowledge of the circumstances, it is held liable for the violation of international law.
There are following exceptions to the liability of a state violating international law:
An act is not held as a wrongful act if it is committed by one state over another state with the consent of the latter. In such a case it is important that the act committed by the former state is limited to the consent given by the latter state. Thus, a state is empowered to allow another state to use its waters or air space, and such use, if allowed, would not be constituted as an invasion.
The acts committed by a state in order to defend itself against another state or organisation do not count as violations of international law provided that such acts are in conformity with the United Nations Charter (Article 15).
Countermeasures in respect of an internationally wrongful act
If the acts of a state violate the obligations by which such state is bound towards another state but are committed as countermeasures taken against such state, then these acts will not be constituted as a violation of international law.
Force majeure refers to an unforeseeable event because of the irresistible force which is beyond the control of the states. In case of force majeure conditions which render it impossible for a state to fulfil its obligations towards another state, such acts, which the state commits or is unable to commit in order to fulfil the obligation by which it is bound, are not considered a violation of international law.
If an illegal act is committed by a state as a last resort in order to safeguard an essential interest against an imminent threat, the state is not said to have violated its international obligations.
Precedence in such matters
The role of the International Court of Justice extends to the settlement of the disputes brought to it by the states and to give advisory opinions on the legal questions referred to it. The International Court of Justice has dealt with over 170 cases since its establishment. The important decisions given in this matter have contributed to the development of international law. One such case is the Consequences of building a wall in the occupied Palestinian territory. The ICJ issued an advisory opinion in this matter finding the building of such a wall, and thus occupation of Palestinian territory by Israel, contrary to international law. It put Israel under the obligation to cease the illegal act and demolish the whole structure, in addition, it also required Israel to make reparations for the damages caused by the said illegal act.
The ICJ also set precedence in the case of Military and Paramilitary Activities in and against Nicaragua by ruling against the United States for the breach of customary international law. The United States was accused of supporting the Contras (a right-wing rebel group) in their rebellion against Sandinistas (a socialist political party in Nicaragua) and mining Nicaragua’s harbours. The acts of the United States were found to be interference in the internal affairs of Nicaragua and it was convicted of using force against another state. It directed the United States to cease all the illegal acts and to make reparations to the Republic of Nicaragua.
The area of international law is complex and, to an extent, ambiguous. With the involvement of a number of nations, each having its own set of laws and customs, and in the absence of a worldwide police or enforcing mechanism, it becomes extremely difficult to make the countries agree to a particular set of norms to be followed. Yet, through the development of various organisations such as the United Nations Security Council, International Court of Justice, International Criminal Court, etc. this much sought compliance of the countries has been achieved. There are various ways in which a country may be made to adhere to the treaties to which it is signatory, many of which are diplomatic and economic sanctions The countries can also approach an unbiased third party that is the International Court of Justice.
If a country is found guilty of violating the international law by breaching its obligations under the treaties to which it is a signatory or by flouting the customary international laws, it can be directed by the Court to immediately cease the illegal acts and make reparations for the damages caused by the said act. The country in default also needs to assure that it will not repeat such behaviour in the future. Thus, international peace and security are maintained and the interest of all the nations is furthered by peaceful cooperation.
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