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Domestic Law vs. International Law: Enforcement & Intervention

Instructor: Michelle Penn

Michelle has a J.D. and her PhD in History.

Domestic and international law are enforced differently, mainly because international law has to deal with the issue of sovereignty. Even though the 20th century resulted in more limitations on sovereignty, sovereignty is still a major issue in international law.

When is International Law Enforced?

If something terrible is happening in the world, should the United Nations intervene? Most people can agree if genocide is occurring, the UN should step in. But what if it isn't genocide, but widespread poverty? Or police brutality? And what if the domestic government is unwilling to address the problem? For issues like these, international law usually takes a backseat to domestic law.

State Sovereignty

The main reason for this is sovereignty. Sovereignty in domestic law is the power of a government to rule without other countries or outside forces intruding. For example, in the United States, the Constitution gives police powers to state governments. This means that even though some issues might rise to the level of international concern, such as a disproportionate number of black Americans killed by police officers, the UN will not directly intervene on the matter, even though the shootings might be considered a violation of international human rights law.

Changes in International Law: More Limitations to Sovereignty

Raphael Lemkin speaking on genocide
Raphael Lemkin picture

Of course, the UN is relatively young and international law has changed considerably over time. It might surprise you to learn genocide was not prohibited by international law until recently. In 1921, the Polish Jewish lawyer Raphael Lemkin, the man who later coined the term genocide, questioned why Ottoman leaders were not punished under international law for the massacre of Armenians. ''Why is a man punished when he kills another man? Why is the killing of a million a lesser crime than the killing of a single individual?'' At the time Lemkin asked this question, international law was based on the concept of state sovereignty. Sovereign states were only bound by international law if they agreed to be bound. As a result, states only agreed when convenient for them.

This began to change with World War I. The victorious powers forced some states to promise to protect minorities. After World War II and the events of the Holocaust, Allied Forces held the Nuremberg Tribunals which eventually led to the creation of the UN. It was agreed some atrocities such as genocide, crimes against humanity and war crimes, were too awful to be ignored by the rest of the world.

Even though international law states these atrocities are illegal, the challenges of enforcement remain. The victorious countries after World War II were able to hold the losing countries of Germany and Japan responsible for their crimes because they had been defeated militarily. Naturally, these countries would not have tried themselves for the atrocities their sides committed. So, how is international law enforced apart from military might?

International Criminal Court

The International Criminal Court is an example of one organization developed to enforce international law by trying crimes against humanity, war crimes, and genocide, although their jurisdiction is limited. The ICC respects the sovereignty of countries by trying crimes only if the domestic government is unwilling or unable to do so or if the crimes have been referred to the court by states or the UN Security Council. At the same time, the ICC can only oversee cases of countries who have agreed to be subject to their jurisdiction. Jurisdiction means the power to make legal decisions and is usually used to refer to courts. Some countries, like the United States and China, have not agreed to be subject to the ICC's jurisdiction. Sovereignty still plays an important role in international law.

How does domestic and international enforcement differ? You are probably familiar with how domestic laws are enforced. Someone is arrested, given a trial and sentenced by a court. International law enforcement is often far different. Sometimes, people who have violated international law are arrested and sent to jail, such as when the ICC has arrested a suspect within its jurisdiction. Often, suspected criminals aren't arrested simply because the ICC has no world police force. Furthermore, if a state isn't a member of the ICC, that state may not allow someone hiding there to be arrested. Moreover, even member states might not always comply with the ICC's orders.

Omar al-Bashir
Omar al-Bashir picture

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