Deepening international relations and economic ties between the countries has brought the creation and enforcement of International Law into the spotlight. Some scholars regard the states as the exclusive executive and legislative powers in International law, while one may assert that non-state factors also take a substantial part in the abovementioned powers. The common standing is that although states constitute a key part of law-making and law enforcement aspects of International Law, actors such as intergovernmental and regional organisations can also be referred to as executive and legislative powers in many instances.
To start with, it is essential to clarify executive and legislative sources of International Law to consolidate this standing. The International Court of Justice lists the sources of International Law as international treaties and conventions, the general practice of states, and commonly and globally accepted legal practices. As it can be inferred from this clause, states play an undeniable role in establishing international law principles through their practices and acknowledgment of widespread legal norms.
Conversely, it is notable that non-state actors have also historically been of utter importance in ratifying treaties and conventions. The Vienna Convention by the United Nations would be an ample example of an intergovernmental organization arranging the ratification of an agreement regulating treaties between the states. Another profound example can be the Treaty on the Functioning of the European Union – a framework forming the constitutional basis of the biggest trading block and one of the most influential political unions of the world. Nevertheless, it goes without saying that powers to ratify and enforce such legislation to these organisations are granted by the states themselves. Therefore, the partial success of these legal triumphs undoubtedly belongs to states taking part in their ratification.
When it comes to the enforcement of International Law, states also take a proactive role, while the participation of non-state factors is noteworthy. Common means of International Law enforcement mechanisms are diplomacy, sanctions, and military intervention, depending on the seriousness and the scope of the breach.
Clinton defines diplomacy as ‘the art and practice of conducting negotiations between the representatives of states.’ Although states prima facie can be assumed as exclusive players in diplomacy from this definition, the contributions of non-state factors to diplomacy cannot be disregarded. For example, the International Court of Justice is a consent-based dispute-settling and advisory organ of the UN. It plays a crucial role as a legislative and exclusive power through establishing precedents and issuing binding judgments for the states. However, states arguably establish a significant part of ICJ’s activities by bringing disputes and consenting to the court’s findings.
Furthermore, economic sanctions are also often used to enforce International Law. According to Lin, economic sanctions are financial penalties imposed by one or more states against a specific target, which can be a state or a group of individuals. A historical example would be the total economic embargo on Iran by the USA following Iran’s terrorism-related activities. In terms of opting for military intervention to restore the international legal order, The Bush administration deploying troops in Iraq following the latter breaching the sovereignty of another state would be an applicable example.
Alongside the actions on a governmental level, certain non-state actors also have the authority to undertake military actions in case of a breach of International Law. It has been defended that the collective security system of the UN can be regarded as an enforcement mechanism of International Law. Nevertheless, the actions of this mechanism can be precluded by the veto of one of the 5 permanent members, reflecting the superior influence of states even at the highest organisational level.
Dunoff and Partner claim that non-state actors have even been integrally involved in the creation and enforcement of International law by assisting with framing agendas, attending global conferences to lobby governments, and even sometimes taking a superior action aiming at lawful enforcement. A unique example would be when the French had to discharge the asbestos ship Clemenceau from departing to India following the severe campaigning efforts of Greenpeace through collaboration with other NGOs.
In conclusion, the analysis found that states have immense power to create and enforce International law among themselves and non-state actors. However, it would be rigid to conclude that these powers are exclusive in nature as there are clear evidence of non-governmental and intergovernmental organisations and some other actors contributing to the creation and enforcement of international legal principles. Taking into account states’ primary influence on these organisations’ operations, drawing a concrete boundary appears to be complicated.
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