INTERNATIONAL SANCTION
a. Sanction and obligation of reparation. By “sanction” in international law many writers mean the obligation to repair the moral and material damage caused by the delict. The reparation of the moral damage consists in a formal apology on the part of the delinquent state, and this apology may take the form of a ceremonial act, such as a salute to the flag of the wronged State, and the like. The reparation of the material damage consists in the re-establishment of the situation which would have existed if the illegal damage had not been caused; and, if this is not possible, in the payment of an adequate compensation. This obligation to make reparation may be called a substitute obligation, i.e., an obligation which arises when a state has failed to fulfill its main or primary obligation. The obligation to make reparation is substituted for the violated obligation. [1]
It is, however, possible that in a concrete case the obligation to make reparation, stipulated in abstracto by general international law, cannot come into existence. For an obligation to make reparation exists only if an international delict has been committed, and there is, under general international law, no objective authority, especially no court, competent to ascertain the existence of a delict. This function is left by general international law to the states concerned. Consequently a state may consider itself to be under an obligation to make reparation only if it admits that it has committed a delict; that is to say, if there is an agreement of the states concerned in this respect, and such agreement might not be reached. Even if it has been reached, it does not suffice to establish the concrete obligation to make reparation. The state responsible for a delict is not obliged to comply with any unilateral demand for reparation made by the injured state. They must also come to an agreement concerning the content of the reparation to be made. As long as these agreements concerning the existence of the delict and the content of the reparation are not concluded, it is hardly possible to assume the existence of a concrete obligation to make reparation. Under national law, the situation is substantially different. No such agreements are necessary, for there are courts competent to ascertain the existence of the delict and to determine the content of the reparation to be made in case the parties concerned cannot reach agreement in these respects.
In view of the situation which exists under general international law, it is not excluded to assume that general international law does not impose upon the delinquent state the obligation to make reparation, and upon the injured state the obligation to try to get reparation from the state responsible for the delict before resorting to reprisals or war against the latter; but that general international law only provides that by an agreement concerning reparation of the moral and material damage caused by the delict, and by the fulfillment of the obligation established by this agreement the delinquent state can avoid the sanctions provided by general international law.
Even if it is admitted that under general international law the violation of an obligation automatically entails the substitute obligation to make reparation, this substitute obligation cannot be considered as having the character of a sanction. For a sanction is a coercive act, not an obligation.
By stipulating a sanction as consequence of a certain behavior, the law makes this behavior a delict, and thus establishes an obligation to the contrary behavior. Sanction and obligation are two different concepts. If by repairing the damage caused by a certain behavior the sanction stipulated as the consequence of this behavior can be avoided, the legal situation is correctly described by this statement: If somebody behaves in a certain way and if he does not repair the damage caused by his behavior, a coercive act, i..e, a sanction, ought to be executed. Then the sanction is conditioned by a delict composed of two acts: the behavior causing the damage and the nonreparation of the damage; and then the sanction may be considered as constituting a primary obligation to refrain from the behavior causing the damage and a substitute obligation to repair the damage in case of nonfulfillment of the primary obligation. But neither the one nor the other obligation is a sanction.[2]
b. International sanctions as enforcement measures. Hence the decisive question as to the nature of international law may be formulated as follows: Does international law provide for coercive acts (enforcement actions) as the consequence of a certain conduct of states determined by international law; or, in other terms, does international law determine a certain conduct of states as the condition of certain enforcement actions, and thus make this conduct an international delict, the enforcement actions having the character of sanctions? Does international law provide for forcible interference into the normally protected sphere of interests of the state responsible for the delict? If such enforcement actions are provided for by international law, they can be taken only by the individual states as subjects of international law, not by special organs of the international community. For this legal community, constituted by general international law, being completely decentralized, has no special organs for the creation and application of the law. On account of its decentralization general international law has the character of a primitive law which is characterized by the fact that it does not establish special legislative, judicial, or administrative organs, but leaves the functions concerned to the individual subjects, members of the legal community. If general international law provides for coercive acts as sanctions, the states concerned are authorized to execute them or, as this aspect of the principle of self-help is usually characterized, to take the law in their own hands.[3]
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Footnote
[1] In the Case concerning the Factory at Chorzow (Publications of the Permanent Court of lntemational Justice, Series A, No. 17) the Court (1928) held that “it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation” (p. 29). “The essential principle contained in the actual notion of an illegal act-a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals-is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would hear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it-such are the principles which should serve to determine the amount of compensation due for an act contrary to international law" (p. 47).
[2]Hans Kelsen, Principle of international law (Clark, New Jersey, 2003), p.21-22.
[3]In The Queen v. Keyn (Great Britain, Court for Crown Cases Reserved, 1876, 2 Law Reports, Exchequer Division 63) the Court stated: “Strictly speaking, international law is an inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a law-giver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common law-giver to sovereign states; and no tribunal has the power to bind them by decrees or coerce them if they transgress.” But in The Prometheus (Great Britain, Supreme Court of Hongkong, 1906, 2 Hongkong Law Reports 207, 225) the judge declared: “It was contended on behalf of the owners of the Prometheus that the term 'law’ as applied to this recognized system of principles and rules known as international law is an inexact expression, that there is, in other words, no such thing as international law; that there can be no such law binding upon all nations inasmuch as there is no sanction for such law, that is to say that there is no means by which obedience to such law can be imposed upon any given nation refusing obedience thereto. I do not concur in that contention. In my opinion a law may be established and become international, that is to say binding upon all nations, by the agreement of such nations to be bound thereby, although it may be impossible to enforce obedience thereto by any given nation party to the agreement.”
