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Option or Obligation? Third-State Support for the Enforcement of International Law
Brilmayer, Lea
Brilmayer, Lea
Abstract
Few states with major international disputes can afford to go it alone; support from world and regional powers, allies, and trading partners is key to a nation’s security and strength. The current war between Russia and Ukraine illustrates how central a role third-state assistance can play. Together with other major powers, the United States provides substantial military aid to Ukraine; without this assistance, the war’s trajectory would surely be quite different.
In doing so, the United States presents Ukraine as an innocent victim of Russian aggression, implying that its innocent victimhood entitles Ukraine to a greater measure of international support. The inverse proposition is less clear. The United States does not necessarily deny support to a party to a dispute on the ground that it is violating international law. In the Israel-Hamas war, for example, the United States has continued to supply Israel with weaponry despite credible evidence of serious Israeli violations of the laws of war. Are these American positions consistent with one another and with international law? Perhaps we ought, instead, to say that the United States is under a duty to help enforce international law by conditioning its assistance in times of conflict on the recipient acting in accordance with international law.
This position would not be unreasonable. It is often said that international law does not count as “real” law because of the absence of any reliable method of forcing nations to comply with it. A typical response is that enforcement is provided by other members of the international community, who retaliate against the violator in ways that deter future violations. One might think, therefore, that international law would encourage international support for the victim of violations of international law and discourage support for the violator. The violator would in effect have forfeited its expectation of assistance.
In fact, however, international law does not impose a duty on third states to support the innocent victim rather than the violator. Support is a function not of the dispute’s legal merits, but of the third state’s national interest. Under international law, it is taken for granted that third states ordinarily support their allies, despite the strength or weakness of their allies’ legal arguments; the result is that the perpetrator’s violations go unpunished while the innocent victim suffers. This Article exploresthe puzzling absence of a third-state duty to support international law and the consequent appearance of international indifference to both the need for deterrence of future violations and the plight of the innocent victim.
Creation of a third-state duty to support international law would present serious practical difficulties. But there are more interesting reasons for not recognizing third-state duties. These have to do with the long-term consequences of decentralized management of international law enforcement. Dependence on third-state enforcement is an artifact of the relatively undeveloped state of international law, and international well-being would not necessarily be served by entrenching that arrangement permanently.