| Abstract [eng] |
Realizing that solutions to global problems mostly are beyond the powers of any single state and effective result can only be achieved on a global scale cooperation, States increasingly adopts more and more international treaties, undertaking obligation to implement them. Unfortunately, as practice shows not all international treaties are implemented at an acceptable level, indicating that domestic measures are insufficient. The situation necessitates looking for enforcement possibilities under international law, which creates additional difficulties. The master thesis, therefore, is aimed at analyzing and assessing the concept of enforcement of international treaty implementation as it is used in the doctrine as well as its regulation under relevant sources of international law in order to identify its content and the main problems of its realization. The first part is dedicated to the general aspects of enforcement in international law. An overview of the literature on the issue suggests that while the need for some kind of enforcement of international treaty implementation tends to be accepted more than disclaimed, its content and application vary significantly among different scholars, making it difficult to identify its limits. Using conceptual analysis and taking into account specificity of international law, the author suggests limiting generic meaning of the concept by including subjective element – intention to bring back defaulting Party into compliance with its pacta sunt servanda obligation. The breach of legally binding obligation to implement international treaty, accordingly, is identified as a legal ground for enforcement action. Moreover, identification of the main causes of non-implementation of international treaties as intentional and unintentional (objective inability) allows emphasizing the need for particular flexibility in choosing enforcement mechanisms. The second part deals with the regulation of enforcement mechanisms under different sources of international law. The author respectively identifies two types of possible enforcement mechanisms: treaty-based and those, provided by general international law and analyzes their possible interrelation in the light of the idea of self-contained regime as a subcategory of lex specialis within the Law on State Responsibility brought forward by fragmentation and specification of international law. Intention of the Parties is considered as a decisive factor for determining if and to what extent their created regime excludes application of general international law. This forwards two opposite views: some scholars maintain that in case of self-contained regime it is possible to contract out the application of general international law (including enforcement mechanisms provided therein) completely; whereas the others still believe that in case of failure of enforcement mechanisms provided in self-contained regime the fallback to those provided by general international law should be affirmative. On the background given above, the author concludes that insufficient clear regulation of enforcement in general, and enforcement of treaty implementation in particular, under international law influences the inconsistency in understanding the very meaning of the concept as well as creates additional difficulties in realizing the possibilities of inducing implementation of international treaty. Therefore, international community should take adequate steps to modify present situation to reflect the need for the clarity and stability of international legal order on the one hand, and its flexibility on the other. Moreover, since the research shows that enforcement of international treaty implementation is still unclear as well as international regulation is of the issue is vague, it seems sensible to contribute to strengthening enforcement of international treaty implementation: by providing a clear guidance: firstly, on what enforcement of international treaty implementation encompasses; secondly, explaining possibilities to use enforcement mechanisms embodied in different sources of international law, their limits and interrelation. In other words, there is a need not only to gather certain enforcement mechanisms for instance in Draft Articles on State Responsibility, but also by providing a framework for creating treaty-based enforcement mechanisms. Under this background, the hypothesis seems to be confirmed. |
