Matúš Štulajter1

Department of International Relations and Diplomacy,

Faculty of Political Science and International Relations,
Matej Bel University in Banská Bystrica, Slovak Republic Journal of Modern
Science tom 2/33/2017,
[email protected]
s. 325–335

Problem of enforcement
of an international law – analysis
of law enforcement mechanisms
of the United Nations and the World
Trade Organization

Abstract
This article analyzes the problems of enforcing international law in terms of
fundamental principles of international law, sovereign states and the United Nations.
The issue of law enforcement is a problem not only in individual states, but also with
in the United Nations. The whole process of peaceful settlement of disputes through
the courts in particular, is therefore irrelevant if the final decision, which the state
does not want to submit to and fail to enforce. On the other hand, law enforcement
mechanisms and capacities of WTO represent complex system of procedural norms of
coercion, which could serve as an example for the innovation of UN law enforcement
procedures.

Keywords: international law, World Trade Organization, United Nations,

UN law, law-enforcement

United Nations and law enforcement

One of the biggest challenges that international community faces, is
failure to comply with the international commitments in general. Partial but
highly significant shortcoming is particularly non-compliance and possible
unenforceability of judgments of the International Court of Justice as the

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 Matúš Štulajter

principal judicial organ of the United Nations. The problem of enforcement

of judicial decisions within the institutional system and the peaceful
resolution of international disputes UN is a phenomenon which threatens the
integrity, authority and the viability of an international judicial body (Amr,
2003). Similarly, but it also undermines and weakens the stability of the
international judicial proceedings as a whole and potentially international
peace and security. One of the fundamental principles relating to compliance
with existing commitments in international relations is the principle of pacta
sund servanda and the related bona fides (compliance with obligations in
good faith). They are set forth in several international documents such as
Article 26 of the Vienna Convention on the Law, which was adopted on the
6th of May 1969. According to this article, any effective agreement that is
binding between the parties and obligations arising from it must be done
in good faith. These terms and principles are part of the foundation and
proper functioning of international relations and cooperation between states
as subjects of international law. Nevertheless, the universal recognition of
this principle dates back to the date of adoption of the UN Charter as the
basic document that governs the functioning of the United Nations. Under
Article 26 of the “All Member States are required in order to carry out the
rights and obligations and obtain the benefits arising from this membership
to comply in good faith with its international obligations under the Charter”.
This obligation applies to any international agreement and should generally
be made. However, already in the Charter itself it is a provision that puts this
principle into plane idealism, respectively, de lege ferenda.
Monopoly on the enforcement of judgments of the International Court of
Justice is in the competence of the UN Security Council. Essential provision
that relates to this issue is Article 94, par. 2 according to which, if the state fails
to comply, the Security Council, under certain conditions (by the applicant
Initiative) granted the right to use coercion to make the decision was in fact
made. Final form of above mentioned not preceded interaction of various
actors in international relations, which were to have a decisive influence.
It started with a conference in San Francisco, which operated on the various
working groups for preparation of the Charter and the text. The Commission
III., which dealt with the status and activities of the UN Security Council

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representative of Norway, emphasized the need for increased attention to

the possible accumulation of non-compliance and unenforceable judgments
of the future International Court of justice and its decisions (Orakheashvili,
2011). Norwegian officials believed that the so-called automatic execution or
enforcement of the judgment by means of countermeasures to the possible use
of force by the injured State should be from future legislation excluded. They
proposed that the UN Security Council was authorized in appropriate ways to
perform any final decision between states that will future International Court
Justice issue and whose jurisdiction is recognized by litigants (Orakheshivli,
2011). Cuban delegation, in its proposal sought to modify the provisions of
Article 13 of the Covenant of the League of Nations (Ferencz, 1984).
Norwegian proposal however was not taken into account. Cuban
delegation, in its proposal sought to modify the provisions of Article 13 of
the Covenant of the League of Nations (Ferencz, 1984). The members of the
Cuban delegation proposed that “in the event of obligation arising from the
judgment of the court functioning within the organization have the Security
Council power to make recommendations or undertake specific measures
which would contribute to the execution of a particular decision”. Great
importance to the proposal, is the wording that was used (shall), which
implies an obligation of the Security Council to act if there is no compliance
with the decision. Cuban position in the negotiation process and generally in
the international community, however, was in comparison with the victorious
powers of World War II very weak in order to implement the proposal.
Subsequently, however, in the next stages of the negotiations on the final form
of the United Nations Commission IV. led by representatives of major powers
has been replaced by the proposed optional formulation (may) (Ferencz,
1984). This clearly indicated excuses and efforts to limit the interference of
other countries in the international community’s monopoly on power in the
world (represented by the permanent members of the UN Security Council
– in particular the USA and the USSR), since it is still in their discretion use
of measures for non-compliance of the international commitment not only
resulting from the decision of the international Court of Justice.
The negotiations thus ended this “compromise” and the wording of Article
94. 2 (in particular, the words: “when it deems appropriate”), the text of which

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 Matúš Štulajter

grants the UN Security Council option to take the necessary steps to enforce
the duties arising from the judgment or not. Some authors such as Shabtai
Rosen believe that the final text is the result of fear of interference by political
authorities in this process (Rosen, 2006). How otherwise it would be possible
to establish an effective mechanism to solve this problem without formulating
a strict duty of the Security Council to act in case of non-compliance? Practice
of League of Nations (though singular) and its system showed that such
a benevolent formulation is not effective. Under Article 13 of the Covenant
of the League of Nations Security Council was the first in the history of
the universal organization entitled to take the necessary steps to carry out
a particular decision of the Permanent Court of International Justice, in
particular the parties to propose possible solutions to the dispute. In Central
Rhodope Forests dispute between Greece and Bulgaria in 1933 asked the first
former Security Council of Nations to propose the necessary steps to oblige
Bulgaria to carry out the court’s decision (Schulte, 2004). Eventually, Security
Council was stagnant and the dispute remained unresolved.
According to the wording of Article 94, paragraph 2, Security Council is
authorized to act on the initiative of the party who is damaged. It therefore
follows that it is not competent to act unless there is a specific complaint of
the victim which places it in the position of non-automatic entity entitled to
enforce international law (Rosenne, 2006). On this premise is thus clear that
only the party requesting performance may ask the UN Security Council for
action in failure. However, it may happen that litigants are mutually defendant
and the applicant, and vice versa, thus would have both the opportunity to
submit a proposal for action by the UN Security Council. And such a situation
occurred in the dispute between Nigeria and Cameroon in 2002. Its essence
was that following the judgment of Cameroon was obliged to withdraw its
military forces from areas along Lake Chad and Bakassi peninsula, which
according to the judgment of the International Court of Justice lay in an
area where exclusive sovereignty is exercised by Nigeria (Rosenne, 2003).
However, Nigeria was under the judgment, committed a similar action when
its troops were stationed on the remaining part of the peninsula, which
was under the exclusive jurisdiction of Cameroon. Any breach or failure
by the judgment would justify litigants to recover their claims through the

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mechanism referred to in Article 94. 2 of the Charter of the United Nations,

which would be very problematic. In this case, it is important to point out
that it is very unfortunate solution to empower UN Security Council to act
only on the initiative of one or possibly two litigants.
As it might appear the UN Security Council may take action in case of non-
compliance and non-enforcement of the decision of the International Court
of Justice, only under the provisions of Article 94 paragraph 2 of the Charter.
What would occur in the event that non-compliance with obligations under
the decision was a threat to international peace and security? On this issue
there are two theoretical perspectives. The first is the opinion of an expert on
international law dr. Pasvolsky, who in 1945 claimed that in case of a threat
by the UN Security Council could not act in accordance with paragraph
94 paragraph 2 free of determining the threat to peace and security in
accordance with Article 39 of the Charter. Second, contradictory view
outlined in a recent study by professor Mosler argue that the Security Council
UN may act without jeopardizing the security in accordance with Article 39,
if there were measures provided for in Article 41 of the Charter of the United
Nations (in: Schulte, 2004) However, if in the context of non-international
commitment was needed the use of force, the Security Council should act
under Article 94 par. 2 (proposed by the litigant), it would be necessary
to take action under Article 39 of the Charter, which means that it can act
independently and without initiation of the litigants.
In my opinion, if it is a threat to peace and security under the Charter of
the United Nations, one of the basic principles of the delegation of certain
competences to the authorities for the performance of their powers. Security
Council is not therefore in my opinion, limited to initiating the State in the
performance of the necessary measures upon breach of an international
obligation, which also comprises non-compliance with the judgment of the
International Court of Justice. This, however, concerns measures that are
associated with the use of force, as only the Security Council has a monopoly
on granting permission to use it (if we do not count the possibility of self-
defense). The result of the analysis of these theories is the premise, that the
UN Security Council may take action in case of non-compliance with the
decision of the International Court of Justice under Article 94. 2 independently

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of the other provisions of the Charter (select the necessary measures in its
power) until there is not a situation where it would be necessary the use of
force, ie procedure would be necessary under Article 39 of the Charter and
the first determination of a threat to peace and security and the subsequent
implementation of the measures with the use of force in accordance with
Articles 41 and 42.
The most limiting factor is the actual decision-making process of the
Security Council resolution that authorizes permanent member to veto the
resolution. This means that by the mere enforcement decisions is limited
by the willingness of certain countries (United States, United Kingdom,
Russia, China and France). Each of these states is entitled to prevent the
execution of measures under Article 94 par. 2. Another problematic issue
is that if it is a permanent member of the UN Security Council a party to
the dispute, shall make the decision referred to in the judgment. National
interest of these countries may thus exceed the global interest, ie compliance
with international obligations, including compliance with the judgment of
the International Court of Justice. These countries may be due to the actual
decision-making process of the UN Security Council veto resolutions not
only on the use of force in international relations, but they may also fail to
apply coercive measures to comply referred to in the judgment. From the
historical point of view, in the functioning of the United Nations, there have
been several similar situations, ie a conflict national interest with interest of
the international community in meeting international commitments, which
ultimately reduces the degree of enforcement of international law and respect
for the obligations arising from the judgment of the International Court of
Justice.

WTO and law enforcement

Unlike United Nations, there is an effective system of law enforcement
functioning in one the most important governmental international
organizations (World Trade Organization), which could serve as an example
for eventual amendments of the United Nations system. WTO formed
a mechanism, by which it is possible to settle any commercial dispute,
including a system whereby the organization can carry out their decisions,

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especially law enforcement procedures. Dispute settlement and enforcement

rules are provided in Annex 2 of the WTO multilateral agreements on trade
in goods entitled “Understanding on Rules and Procedures Governing the
Settlement of Disputes”, used in the English abbreviation DSU (Dispute
Settlement Understanding) (Dvorak, 1999).
DSB (WTO Dispute settlement body) plays a key role in the enforcement
of WTO law. In the enforcement process, DSB fulfills the role of a guardian
of compliance with the rules and respecting the obligations laid down in the
decisions (Collier, Vaughan Lowe, 1999). The DSB oversees the application
and implementation of the measures imposed and sets adequate time-limits
for that purpose. Last but not least, there is a check on the DSB’s shoulders
to see if the parties to the dispute are acting in accordance with the decisions
and whether they voluntarily fulfill the imposed obligations or respect the
established restrictions. In addition to actual implementation, the parties
to the dispute are required to submit regular reports on how implementing
measures are implemented. However, they may also submit their observations
on implementation measures during the DSB negotiations. In addition, special
attention must be paid to the comments made by developing countries.
In the event that the State voluntarily fails to comply with the Jury / Appeal
Authority’s decision, DSB may withdraw the benefits or prerogatives arising
for the State from the Agreements or the Compensation Orders (Van
Graastek, 2013). The suspension of benefits has not only a repressive but also
a double preventive effect. Even if a state whose benefits were suspended acts
both repressive and penalizes it for an act contrary to legal standards, it acts
in the form of individual prevention, where the infringer discourages such
conduct in the future (Vicuña, 2004). With regard to general prevention, the
imposition of a similar sanctioning measure also encourages other WTO
members to refrain from doing so in the future, thus avoiding their negative
consequences for their economy (Vicuña, 2004).
For the Member State of that doesn´t comply with the DSB decision,
subsequent to the imposition of this sanction measure, additional rights and
obligations arise. Firstly, a State which voluntarily does not accept a Jury’s
decision or a Permanent Appeal Authority is obliged to negotiate with the State
after the expiry of the deadline for the implementation of the measures ordered,

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with the subject of the negotiations being to agree to settle the disputed issues
together with the manner and amount of compensation for the harm suffered
(Collier – Vaughan Lowe, 1999). If the agreement is not reached within a 20-day
period, the DSU gives the two parties the same right to initiate a procedure to
suspend the benefits of the legal framework of the WTO agreements.
The nature of the sanction imposed will be taken into account by the DSB
in several respects, and the sequence of sanctioning measures under Art. 22
par. (3) of the DSU, where the assessment criterion is likely to be the extent
and gravity of the breach of WTO law by the infringing State and the extent
and nature of the complainant’s injuries (Van Graastek, 2013). This article
contains a taxative calculation of possible restrictive sanctions, with the two
basic criteria mentioned, in my view, not only the consequences of such
a measure for the state economy, but also the importance of a specific sanction
for the affected sector for a Member State (Collier – Vaughan Lowe, 1999). In
principle, sanctions are to be imposed in the same sector as the dispute. If this
is not practical or if this measure is not effective, sanctions may be imposed in
another sector of the same agreement. If this too is not effective or sufficient
to make redress and the circumstances are quite serious, the measure may be
imposed under any WTO agreement.
The result of the arbitration procedure is:
1)  a recommendation to suspend the privileges at the proposed level, or
2) to bring the proposed countermeasures into line with the principles
of their establishment under Art. 22 ods. Article 3 D.) for dispute
settlement;
3) rejection of the proposal for inappropriateness and recommendation
to amend the proposal.

It is no longer possible to appeal against the decision of the arbitrator

and is final. The parties can not appeal against it. Eventually, it should be
recalled that the specific mechanism for enforcing WTO law is enshrined
in Art. 24 DSU under the title “Special procedure concerning the least
developed Member States”, where the inadequate hardness set by the rules
under Art. 22 DSU and the specific conditions for the sanction of developing
countries.

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Conclusion – Implications arising from

DSU rules for UN law enforcement system
The biggest problem in the area of ​​peaceful resolution of disputes is
the absence of modification of a more efficient mechanism within the
institutional system, their progress and the application of specific measures.
While the UN Charter is naming them, no international law prescribes
specific effective ways and procedures to deal with. The precise embedding
of the course, the subjects and the mechanisms of their solution in the
Charter or other convention would certainly make the international dispute
settlement process more efficient. The first implication of the World Trade
Organization’s Dispute Resolution System would be the establishment of
a UN-independent body that would be divided into several sections according
to the international dispute (use of force, border and territorial disputes,
environmental disputes, etc.). Creation of such a mechanism would be able
to respond more effectively to international conflicts in cooperation with the
international law enforcement force.
In judicial remedies for international disputes, it is very important to
reflect on the status and activities of the International Court of Justice as the
highest judicial body within the United Nations and the effectiveness of its
procedure. The biggest problem is the limitation of its activities due to the
absence of binding jurisdiction and the central coercive system, in the absence
of a party to the obligation to comply with the obligation stated in MSD. The
second impetus of WTO dispute settlement is, in particular, the compulsory
establishment of jurisdiction in the event of an international dispute and
a more detailed treatment of the procedural conditions and rules of procedure
at the International Court of Justice. As mentioned in the part of an article
dealing with the enforceability of MSD’s judgments, the state may, but do not
have to deal with its international disputes through court proceedings, and the
application of many types of international arbitrations (though increasingly
popular) does not have mechanisms to enforce its arbitration findings. In line
with the WTO, it would be necessary to set up an independent and impartial
commission that would not only be able to force States to resolve their
disputes through MSD but also to act on the perpetrator’s state by effective
sanctioning mechanisms capable of making him comply with the obligation

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laid down in the judgment. Here, however, is the major problem that WTO
membership in the WTO brings him, in particular, the economic benefits
that make him subject to the case-law. The same could be said in analogy with
the system of enforceability of European Union law and the participation of
the European Commission in this process in cooperation with the Court of
Justice of the EU. However, from the membership of the European Union,
there are a number of economic and other benefits greater than at global and
specialized levels, so this system of enforceability is considered to be very
effective.
However, due to the current power structure within the United Nations,
it is only possible to argue about proposed innovations and changes. Current
events in Ukraine and Syria clearly indicate that it is necessary to envisage the
amendment of the UN Charter, its sanctions and enforcement mechanisms,
the extension and clarification of cooperation with other international
organizations in the process of enforceability of international law. Taking an
example from history, the international community, after two world wars,
realized the need to create a universal organization to protect international
peace and security. It remains to be hoped that no further global conflict will
occur and the reform of the United Nations will not be carried out ruinously
but in a gradual, consensual way.

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Endnotes
1
JUDr. Matúš Štulajter, PhD. is assistant lecturer at the Department of International
Relations and Diplomacy, Faculty of Political Science and International Relations,
Matej Bel University in Banská Bystrica, Kuzmányho 1, 974 01 Banská Bystrica,
Slovak Republic, e-mail: [email protected]
This article was based on the research realized via project VEGA No. 1/0949/17.

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