Why do states find it hard to respond to non-compliance with international law?
This essay will show how complex it is for states to react to non-compliance, that will mean the violation of treaties. The reasons for difficulty in replying to breaches of international law are based on three main factors: States will respond if they have the interest, legitimacy of response and the power to act. If one of these points is missing, a country will find it hard to act. However in most cases there will be a reaction, even if this is seen only in the articulation of protest. Nevertheless, serious measures like an embargo, or an intervention to pursue a punishment or the reinstatement of order, depend on the previous factors. Firstly we shall deal with the question of legitimacy, secondly with the connection of interest and hierarchy of states; and finally, the interlinkages between these factors will be demonstrated by means of examples.
It is important for states in order to justify their move to their own population and to maintain international reputation, to have a legitimacy to react. Therefore it is necessary that the breach of the law occurred intentionally, is proven, and the reaction to the breach does not itself contradict international law. In the following these three ideas will be explained.
Before any response can be initiated, an infringement of a treaty has to be detected. Therefore it is substantive to verify the implementation of a treaty. This can be carried out with inspectors, like in Iraq (to examine the disarmament conditions), via supervision satellites or other means. Whereby some forms of treaty supervision could cause problems with international law. Imagine the case when the controls would have to take place on the territory of a country, one then faces a quagmire: On the one hand an agreement has to be verified, on the other hand this would mean an “interference” in the other state’s affairs or with its sovereignty. The discussion about the UN inspections in Iraq – over the years till now - shows that there are disputable points concerning their extent, their number, etc.. Furthermore, states have different opinions about the legitimisation and enforcement of checks. The USA for instance disputed with Russia about new sanctions against Iraq in November 2001. While the Americans pursued a tightening of the embargo, Moscow disagreed with that.
Treaties have to be verifiable, otherwise sanctions cannot be imposed. Even if an offence is detected, compromises between states mean the resulting response is not necessarily equal to the offence committed.
Even if the violation is ascertained, it is necessary to determe whether it happened intentionally. Yet to evaluate the severity of the penalty, the degree of intention has to be ascertained. If for example a deed was planned the sentence has to be higher. One cannot blame a partner in full extent for misbehaviour if it was by mistake. It is possible that a quarrel between nations had originated in a misunderstanding or by an ambiguity of a convention. It might also be that a country overestimated its capacity to fulfil the convention standards or that the circumstances changed. If for example a nation had signed the Montreal Protocol in 1988 to further tighten the restrictions on the production of CFC gases, but a few years later it was discovered that these gases did not cause the depletion of the ozone layer, consequently there would be no reason to implement the agreement any more. Additionally this would not mean a breach of the obligation because the sense of the compromise would have changed.
International law itself provides some contradictions to the legitimacy of the punishment of states braking the rules. Regarding those measures, intervention is the one most likely to challenge international law. The principles – that have been established since the 19th century - of sovereignty, non intervention and “pacta sunt servanda”, supplemented by peaceful settlement of disputes, respect for human rights etc., can contradict each other. The question is if states have the right to break one principle in favour of another. When NATO began to bomb Milosevic’s Serbia, their legitimisation was based merely on respect for human rights and self-determination. However it is not clear why in this case these principles weigh more than the basic norms of, for instance, sovereignty and peaceful settlement of disputes.
 International law is the system of rules which states (and other actors) regard as binding in their mutual relations. It derives from treaties, custom, accepted principles and the views of legal authorities. Hague, Rod, Harrop, Martin, Comparative Government and Politics an Introduction, Palgrave, 2001, p.200
 Keohane, Robert, International institutions: can interdependence work?, Foreign Policy, Spring 1998
 SPIEGEL ONLINE; Bush und Powell drohen dem Irak, 27. November 2001, 17:36, http://www.spiegel.de/politik/ausland/0,1518,169963,00.html
 This word is taken from the thesaurus to avoid repetitions. It should replace “proven”. Fergusson, Rosalind & Manser, Martin & Pickering, David, The new Penguin Thesaurus, Penguin Group, 2000
 Hanley, Nick & Shogren, Jason & White, Ben, Introduction to Environmental Economics, Oxford University Press, 2001, p.166
 Schwarzenberger, Georg, Power Politics, Jonathan Cape, 1941,
 Latin for: treaties are binding