The lack of effective enforcement of treaty obligations under international law makes treaties worthless. Critically discuss.
Over the years treaties have become one of the most important sources of international law. They serve many functions and are incomparable as a tool for the creation of rights and obligations between States as well as the regulation of their conduct. It is a principle of customary international law, as well as treaty law, that treaties legally bind the ratifying States.[1] The advantage with treaty is because they allow States to consciously and quickly modify their rights and duties under international law whereas customary international law requires consistent State practice over time to develop. Also, treaties bring about a lot of certainty as their text provides authoritative guidance on their application and scope.
Ordinarily, treaties often incorporate their own enforcement mechanisms which may vary and can be in various forms. Generally, in human rights treaties, a committee is created to oversee compliance by signatory States[2] which are required to submit periodical reports on their compliance. It is worth mentioning that some human rights treaties go a step further and create mechanisms for individual complaints against their States[3]. Also, treaties may also incorporate clauses that refer disputes between signatory States to the International Court of Justice[4].
Treaties operate adhering to the principle of reciprocity meaning States’ obligations and duties are mutual as against each other. This acts as another, informal, tool for enforcement because States that fail to perform their obligations to other States under a treaty are likely to encounter similar treatment meted out to them by the other signatory States. It is safe to conclude that much international law is governed solely by treaties and some treaties, such as the UN Charter enjoy universal support. Again, states rely on treaties to discern their obligations and duties precisely and under most circumstances, they abide by them.
After analysing the above circumstances, I am not in agreement with the argument that treaties lack effective enforcement. States enter into treaties consensually and they generally aim to act in accordance with these treaties. We must emphasise that in fact, ‘reservations’ by ratifying States to treaties are so important because they explicitly lay down the extent to which a State will comply with a treaty obligation. And if treaties were incapable of enforcement, States would hardly be expected to make such detailed reservations.
If we were to term treaties as worthless it would display a dangerous ignorance about the nature of international law. We must understand the spirit of international law, which is based on the consent of equal, sovereign States. And unlike domestic law, in international law there is no higher law making or judicial power to which States can be subjected to. Moreover, the fact that enforcement of any legal obligation under international law cannot be ensured through force, means that international law as a whole operates on a different standard of enforceability. In order to preserve amicable relations between States, the requirement would be to make the rules of international law more flexible than rules of domestic law.
Finally, it can be asserted that States consider treaties to have a binding effect and this is the precise reason why States carefully consider whether a particular draft of a treaty is acceptable to them and that is why States modify and negotiate their language in terms such as binding obligations and legal duties. And it is this acceptance of the status of treaties as law that brings about enforcement under international law and upholds treaty obligation.
[1]“Pacta Sunt Servanda” which means “treaties must be obeyed”, Article 26, Vienna Convention on the Law of Treaties 1969
[2] For instance, Article 7 of the Convention Against Torture establishes a Committee Against Torture.
[3] For instance, First Optional Protocol to the International Covenant on Civil and Political Rights
[4] For instance, Convention on Biological Diversity
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