For Whom the Bugle Calls – Past and Present of Third-Party Enforcement in International Law

Abstract: This thesis examines the phenomena of third-party enforcement in public international law, in a historical as well as in a contemporary perspective. To that end, it traces the role of such enforcement measures from the past into the present. It also studies the potential discrepancies between current unilateral sanctions and the recent changes experienced by international law at large. Two legal methods are used in the thesis: historic critical and analytical. Modern international law from the 17th century and onwards was shaped around the idea of the sovereign state. In a world where war was a legitimate tool of foreign policy, third states had no objective way of judging the merits of a conflict. A law of neutrality developed, imposing obligations of strict impartiality on non-belligerents. Neutrality was strengthened by the principle of non-intervention. In the 20th century, neutrality lost importance, while state sovereignty remained standing firm. Meanwhile, the importance of international community and individual rights received widespread recognition. Third-party enforcement received limited acceptance only in the mid-war period. It was then recognized that third states had an interest in upholding treaty obligations which sought to prevent war. The League of Nations used modest economic sanctions against Italy, whereas the American oil embargo against Japan likely contributed to the attack on Pearl Harbor. Under the UN, the use of force became prohibited, strengthening the popularity of economic sanctions, often to enforce more ‘moralistic’ values like human rights. Today, the driving force behind sanctions is often of such a moralistic nature. Similar to the Medieval Just-War doctrine, it is now possible to on more objective grounds establish the occurrence of an act of aggression or a violation of human rights. International law recognizes the legal interest of the international community in upholding certain norms, but the question of third-party enforcement remains highly controversial. Viewed in the light of the extensive state practice within the area, there are indicators that a permissive rule in customary international law is developing or has developed. If so, this is however yet to be authoritatively established. Occasionally, states have gathered around a common value or interest, pledging to enforce it as a collective. In the Middle Ages, the uniting force was Christianity, and under the League of Nations, peace and security. Even the UN Security Council has the mission of enforcing international peace and security; exactly what this entails has been the cause of much disagreement among the P-5. The US and other Western states tend to demand enforcement of what would in previous centuries have been considered questions of purely national importance, much to the chagrin of the Soviet Union/Russia and China. Third-party enforcement can thus be considered inherently foreign to international law – a legal system based on sovereignty and bilateralism. However, the recent expansion in the material scope of international law suggests that it might be the only way of upholding the legality in a system which has grown to encompass obligations it was never intended for. As for now, these measures remain legally dubious.