How is International Law Enforced?
Another difference between domestic law and international law is the way that the laws are enforced. Under domestic law, individuals are required to obey the laws enacted by the government. However, in international law, states have much more say as to which laws are going to apply to them. For example, states are free to decide whether or not they wish to agree to an international treaty. If a state does not ratify the treaty, the terms of the treaty do not apply to that country and it cannot be sanctioned if it acts contrary to the terms of the treaty. Remember, however, that in the case of customary international law, all states are bound by customary laws regardless of whether they agreed to those laws or not.
But what happens if a state that is signatory to an international treaty violates the laws of that treaty? Under the UN Charter, Member States are required to settle disputes peacefully, but what counts as a peaceful means of dispute resolution? International law provides a variety of ways that disputes may be settled peacefully. The most common method is through negotiation. Negotiation involves the parties to the dispute initiating talks to attempt to come to a resolution that is agreeable enough to all parties that the dispute does not escalate.
Disputes may also be addressed through mediation or conciliation, in which a neutral third party or committee assists the disputing parties to come to resolution. Another method for dispute resolution is through the international courts. Where a treaty is administered by the United Nations, states that have signed on to that treaty may appeal to the International Court of Justice if they believe another state is not living up to their obligations under the treaty. If the parties to the dispute agree that the Court has power to hear the matter, the International Court of Justice can issue a binding decision on the parties involved. Where disputes cannot be settled through peaceful means, the UN Security Council may become involved to attempt to prevent an armed conflict.
Case Study – Protecting Our Own Citizens
In 2002, Omar Khadr, a Canadian citizen, was captured by US forces in Afghanistan and transferred to Guantanamo Bay detention camp, in Cuba. He was suspected of being involved in terrorist activities and alleged to have killed an American soldier. At the time, Khadr was just 15 years old – still a child under the UN Convention on the Rights of the Child.
Since his apprehension in 2002, Khadr has remained in detention in Guantanamo Bay. While detained, the US government failed to treat him according to international law applicable to child soldiers. He was denied contact with his family, subjected to abusive forms of interrogation and not given access to any form of education or rehabilitation.
Khadr is the only citizen of a Western country to remain in prison in Guantanamo Bay. The United Kingdom, France, Germany and Australia all successfully applied to have their citizens repatriated, or returned to their country of citizenship. Despite his requests, Canada has refused to intervene on Omar Khadr’s behalf and repatriate him to Canada.
Khadr has brought several notable cases against the Canadian Government in an attempt to challenge his detention. In 2008, the Supreme Court of Canada ruled that the United States had violated the human rights of Khadr, and that the Canadian Government shared the blame for these violations because Canadian officials had participated in an interrogation process that denied him a right to a fair trial. In 2010, the Supreme Court of Canada (SCC) again recognized serious breaches of international law, international human rights law, and the Canadian Charter of Rights and Freedoms in Khadr’s case but fell short of ordering that Khadr be returned to Canada.
In 2010, the US Military Commission finally brought Khadr to trial. He entered a plea bargain that will see him serve 8 more years in detention. In 2011, he applied to come back to Canada to serve the rest of his sentence.
