Thinking Beyond International Adjudication: Inspections as Instruments of Order Production in the International System

In: The Law & Practice of International Courts and Tribunals
Eleni Methymaki Departmental Lecturer in Public International Law & DPhil in Law candidate, Faculty of Law, University of Oxford Oxford UK

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This article focuses on international inspections, a means of international supervision and monitoring widely used in international law. It argues that to understand how order is produced in and across the international system, it is important to think beyond international adjudication for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to ensure compliance with, and implementation of, international norms. Second, not only are inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their design – they may also function similarly to dispute settlement processes. Third, and most importantly, that international adjudication is based on state consent is often presented as an important safeguard of sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.


This article focuses on international inspections, a means of international supervision and monitoring widely used in international law. It argues that to understand how order is produced in and across the international system, it is important to think beyond international adjudication for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to ensure compliance with, and implementation of, international norms. Second, not only are inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their design – they may also function similarly to dispute settlement processes. Third, and most importantly, that international adjudication is based on state consent is often presented as an important safeguard of sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.

1 Introduction

The role of international courts and tribunals in international law is often discussed amongst international legal scholars. The aftermath of the Second World War was marked by the increased judicialization of international affairs generally, and specific fields of international law, such as human rights or international economic law, in particular.1 In certain settings, litigation is today considered “routine”.2 From this perspective, international courts have become important actors in the international system with different functions. These range from dispute settlement (narrowly perceived) to the maintenance of international peace, and the mobilization of constituencies within and beyond States.3 International courts are fora where the enforcement of international law happens, assessing compliance or non-compliance of States and other actors with international norms and obligations.4 They are also spaces where international rules and principles are interpreted and developed.5 Chimni has observed that, for scholars within the international law mainstream, international courts are “evidence that international law is capable of creating legal and institutional mechanisms for peaceful and equitable resolution of disputes”.6

At the same time, it is accepted that adjudication is still an exception in international law,7 with much of (international) legal argumentation taking place “outside the courtroom”.8 Madelaine Chiam recently discussed how centring international courts means to forget that “international law might be made by a much broader set of processes”9 and that the pronouncements of an (or the) international court are not “the final word on legality within the diffuse system of international law-making”.10 For Zarbiyev, the emphasis international lawyers place on the role and functioning of international courts obscures our (international lawyers’) understanding of how many areas of international law really work, including how norms are “continuously negotiated, contested and renegotiated” in other settings.11

This article seeks to bring forward international inspections, a means of international supervision and monitoring, as processes and spaces in which international norms are “negotiated, contested and renegotiated”, developed, and enforced. The main argument is that inspections are widely used in international law, are an important part of international legal argumentation, and are instruments through which order is produced in and across the international system. Thinking about international inspections vis-à-vis and alongside international adjudication is important for three reasons. First, the success of international law-making exercises, such as the negotiation of new treaties, is often measured by whether a dispute settlement provision or compromissory clause is included in the agreed text. Such analyses overlook the fact that negotiating parties may choose other mechanisms to monitor and ensure compliance with, and implementation of, international norms. Second, not only are international inspections often employed in international treaties alongside dispute settlement clauses and other treaty enforcement mechanisms, but – depending on their form and design – they may also function similarly to dispute settlement processes. In certain contexts, international inspections may be triggered when competing claims about compliance are raised by parties or allegations of breach are put forward. Third, and most importantly, that international adjudication is based on State consent is often presented as an important safeguard of State sovereignty and sovereign equality. Less often highlighted is the fact that such sovereignty (and sovereign equality) may be unsettled through a multitude of other processes – international inspections being a prime example.

The article proceeds as follows. In Section 2, I construct a framework necessary to understand the function of international inspections within international law. Focusing on what order means for international law – and international law for order – and unpacking key terms such as enforcement and compliance in the international legal system, I seek to situate international inspections as part of the international legal order. Section 3, then, takes a closer look at international inspections, and at how such processes relate to dispute settlement and other ordering and disciplining mechanisms in international law. Following that, Section 4 thinks through the ways that sovereignty and the principle of State consent manifest in international inspections, and how this connects to their ordering function. Section 5 concludes.

2 Inspections and “Order” in International Law

2.1 Order, Compliance and Enforcement in International Law

The relationship between (international) law and (international) order, including the question “what kind of order is international law designed to secure and maintain”,12 has been much discussed.13 According to Anghie, “the fundamental question of how order is created among sovereign States” has been “the central theoretical debate of the discipline”.14 Order and ordering can be understood, in the words of Mohammed Bedjaoui, “as simply implying a system of norms governing a society, regardless of any overall cohesion, but above all as not making any value judgment about such a system”;15 or, as explained by Orford, as “a factual alternative to anarchy or … as an authoritative regime that exists beyond the state”.16 If we accept, however, that the “social function” of law is to “consolidat[e] a specific situation”,17 ordering through law has specific normative implications.18 Law, including international law, becomes both a product of and an instrument for the maintenance of the current order in international affairs, between and amongst States, and other actors, communities, and polities.19

In her recent work, Semertzi has intimated how the concept of “order” triggers normative development in international law, including the development of “disciplining international legal technologies” for “unruly subjects”.20 Building on this literature, I argue that, in thinking about “order” generally, and the “international legal order” in particular – both as the set of rules, structures, and institutions regulating the relations and positions of subjects within a given system (specifically, the international system), and as something that is produced by these rules, structures, and institutions21 – international inspections are important in understanding how international law produces order.

To give more context, international law’s nature as a legal system is often questioned for lack of (robust) enforcement or coercive capacity.22 In practice, being a decentralised legal system, international law relies on States themselves to enforce it.23 Such enforcement originally happened through the waging of war, which, according to standard accounts,24 was outlawed as an instrument of national policy in the 1928 Paris Peace Pact, and subsequently in Article 2(4) of the United Nations (UN) Charter.25 Today, a State injured by another State’s internationally wrongful act (namely, conduct attributable to that State and in breach of international law26) may take countermeasures (namely, act contrary to its own international obligations) to induce the responsible State into compliance.27 Although the effectiveness of countermeasures will depend on the relative power of the States involved,28 they are considered a crucial part of the international legal system.29 But they are not the only way to enforce international norms: other times, retorsion – described as action that is “unfriendly” but not unlawful30 – is used, and so are sanctions imposed in the context of international organizations, such as the UN.31

“Compliance” as a concept differs from enforcement in that it denotes “an ongoing attitude and process”.32 For von Stein, compliance is a matter of “degree” and non-compliance “a spectrum, not a dichotomy”.33 Because of the particularities of the international legal system, in which securing compliance with rules is different from domestic systems,34 scholars are often preoccupied with “conflict and disorder”35 as inherent characteristics of the international legal order. However, as discussed by Okafor, international norms and institutions may shape State behaviour and domestic legal orders in various ways that cannot be captured by focusing on (direct) compliance only.36

It is against this background that we can explain the special place international courts hold in the minds of international lawyers. In the decentralised international system, States are the primary adjudicators: in the first place they assess whether another State has breached its international obligations and invoke its responsibility.37 The lack of a (neutral) third party to decide whether the law has been violated, and how it should be enforced, is deemed problematic for it might lead to escalation of disputes or any number of hostile actions. From this perspective, for a long time, “the international rule of law has suffered from the absence of robust judicial institutions”,38 and, conversely, when a dispute settlement system has been established within a specific regime or field, this has been considered as “progress”.39 International courts are thought to establish trust and “make [treaty] commitments credible”.40 Taking the ICJ optional clause system, in particular, judges at the Court have viewed “this area of judicial jurisdiction as a haven of legality within the international system”.41

Focusing less on what the existence of international courts means for the international rule of law,42 I argue that international courts are not the only medium – indeed, they are not even the primary medium – through which “order” is produced and “orderly relations” are maintained in the international system. Rather, various other means are used for this purpose, including so-called compliance control mechanisms.43 Control can be understood here as “national or international, the latter being either bilateral or multilateral, institutionalized (or, as Schermers and Blokker call it, ‘supervision’) or not”.44 Such systems of control are based on monitoring and verification, through which “evidence of (non-)compliance with an international regime is acquired”.45 International inspections are a vital part of this process.

2.2 Defining International Inspections and Some Examples

Commonly traced back to peace treaties and other post-war arrangements,46 due to their diversity it is not easy to devise a definition of international inspections. Fischer and Vignes have deemed inspections to refer to “the surveillance or observation carried out onsite, by persons vested with international authority with a view to verifying the conformity of certain acts, of a situation, of the exercise of powers with a rule, a commitment or the requirements of the international order”.47 As I have explained elsewhere, I conceptualise international inspections as “processes through which information is gathered on the ground, on-site or on the spot, about compliance of (primarily) states with their international obligations (most commonly with international treaty obligations)”.48 As their key feature is that they gather information about compliance “on the ground, on-site or on the spot”, to understand how widespread international inspections are, we should not limit ourselves to processes that are explicitly called “inspections”, but instead look at all those mechanisms and procedures that present this feature, including on-site visits, in-country visits, ad hoc technical or monitoring missions, amongst others.49

Thinking from this broad perspective, international inspections, traditionally associated with arms control and disarmament law, can be found in all fields of international law and in a wide variety of international regulatory instruments. To illustrate, the following examples can be mentioned:50 Article 87 of the UN Charter empowered the Trusteeship Council to carry out periodic visits in trust territories;51 on-site country visits are a key feature of the monitoring process administered by the OECD Working Group on Bribery for the Convention on Combating Bribery of Foreign Public Officials;52 the International Monetary Fund operates a system of annual visits to member States for the monitoring and surveillance of their financial and economic policies;53 the Antarctic Treaty and its Environmental Protocol both provide for inspections to monitor compliance with their provisions;54 under the Paris Agreement a periodic technical review is to take place in-country;55 the Secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) conducts ad hoc technical missions in the territory of States parties;56 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (European CPT) visits detention places to monitor States parties’ compliance with the prohibition of torture, and so does the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) under the Optional Protocol to the Convention Against Torture (OPCAT);57 the ICRC has supervision powers that include on-site visits of places of detention, internment, and work;58 UN Special Rapporteurs conduct country visits;59 at sea and in port inspections are commonly used in law of the sea agreements;60 finally, many arms control, disarmament and non-proliferation treaties provide for inspections, with prime examples the inspections carried out by the Organisation for the Prohibition of Chemical Weapons (OPCW) for the Chemical Weapons Convention (CWC), and by the International Atomic Energy Agency (IAEA) for the Non-Proliferation Treaty and a series of others.61

A powerful picture emerges when we put all these international inspections systems side by side: a little talked about mechanism in international law, found in a range of treaties and other instruments, spanning all fields of the discipline, and used to discipline participants (primarily States) in the international legal order, monitoring compliance with international obligations (more or less) continually. These processes are distinct from dispute settlement, and are not enforcement mechanisms narrowly perceived or sanctions either; but their widespread use in international law indicates that they are an important element of the international legal order, in inducing compliance with its rules, and shaping the behaviour of States and other actors both internationally and domestically. For that, the next section looks more closely at international inspections to better understand their function in the international legal order and their relationship with adjudication.

3 A Closer Look: What International Inspections Are for, and Their Relationship with International Adjudication

While international adjudication comes into play when a conflict has arisen or a dispute has already crystallized between parties, the ordering function of international inspections materialises at different stages of (usually) a treaty relationship. The main function of the former has been traditionally62 to assist in the peaceful resolution of international disputes by removing a dispute from the plane of diplomatic settlement and bringing it before a third impartial party to be decided in accordance with (international) law. Inspections, on the other hand, are often utilised to prevent a dispute from arising or escalating in the first place.63

Reeve’s reflection encapsulates one the main functions of international inspections: “A compliance system is only as good as its information base.”64 Inspections are thought to foster transparency in international relations, build confidence amongst treaty parties, and procure information that is considered important for the effective implementation of international commitments.65 In human rights law, country visits by UN Special Procedures are deemed essential to “the UN’s early warning system”.66 The ICRC visits to detention and internment places during armed conflicts are “considered a strong incentive” for compliance with the Geneva Conventions and “help[] prevent violations”.67 The Paris Agreement’s enhanced transparency framework, which is supported by in-country technical expert reviews, “plays a critical role … as it can provide guidance in the implementation of NDCs [nationally determined contributions], (…) track progress towards achievement (…), facilitate sharing of best practices, and build mutual trust and confidence, which could trigger more ambitious NDCs”.68 Verification and inspections in arms control and disarmament foster “the establishment of transparency between States parties, and the building of confidence among them”, so that “arms control can be meaningful and successful”.69

Depending on their design, inspections can be distinguished into those that are routine, taking place in accordance with pre-determined schedules or at any time, and those that are triggered by concerns, allegations, or evidence of non-compliance.70 The first include the CWC and IAEA routine inspections, the OECD on-site visits, port States inspections under Port State MoUs, the Paris Agreement technical expert reviews, the periodic visits of the European CPT, the regular SPT visits, the country-visits organized during the evaluation rounds under the CoE Anti-Trafficking Convention,71 and the ICRC regular visits under the Third and Fourth Geneva Conventions. Examples of the latter are the CWC challenge inspections, the CTBT inspections upon request, the CITES ad hoc missions, the visits that the European CPT conducts “as required in the circumstances”,72 the fact-finding missions that the Meeting of the Parties for the Anti-Personnel Landmines Convention may authorize when a party raises questions about another party’s compliance,73 and the on-the-spot gathering of information by the compliance mechanisms of multilateral environmental agreements (MEAs).74

Although the distinction between these two types is “not rigid and many inspection systems fall somewhere on a spectrum”,75 certain differences exist. Routine inspections conform to Creamer and Simmons’ argument – speaking about reporting obligations in human rights treaties – that “the proof is in the process”,76 and evoke Charlesworth and Larking’s analysis of certain regulatory processes as “rituals … ceremonies or formalities that, through repetition entrench the understandings and the power relationships that they embody”.77 Through a structured and (often) continuous process, such monitoring on the ground seeks to deter and prevent violations, and even foster cooperation to address situations that may lead to non-compliance. These inspection processes can also act as “markers of success”,78 demonstrating that a State is implementing and complying with its international obligations.79 On the other hand, inspections triggered due to allegations or evidence of non-compliance, tend to be more confrontational and (sometimes) adversarial, and may look more like dispute settlement, especially where the inspection power is entrusted to a third party, an international institution or treaty body.80 Particularly where on-the-spot information gathering occurs in the context of a complaints or non-compliance procedure,81 it functions similarly to site visits ordered in the context of judicial proceedings before international courts.82

This discussion is not meant to imply that international inspections operate separately and irrespectively of treaty enforcement measures, e.g. sanctions, or dispute settlement procedures, including international adjudication. To the contrary, many treaties contain a combination of such mechanisms. First, sanctions are sometimes used to bolster the inspection process, especially where consenting to inspections is discretionary.83 More commonly, sanctions or other enforcement measures may follow the inspection process, as is the case in fisheries management and conservation.84 Second, and focusing on the interaction between inspections and international adjudication, some treaties envisage a complementary relationship between monitoring mechanisms conducting inspections and international courts or other dispute settlement methods. For example, in establishing the European CPT, it was thought that the European Convention on Human Rights85 machinery “could usefully be supplemented by non-judicial machinery of preventive character … to strengthen[] (…) the protection of” detained persons.86 Similarly, the ICRC regular visits under Article 126, which are not intended “to resolve disputes among Parties … or to make public statements regarding its findings”,87 and the enquiry procedure under Article 132 of the Third Geneva Convention are “complementary tools to ensure respect”88 of the Conventions. Several treaties concerned with fisheries conservation and management establish inspections systems to secure compliance with conservation and management measures and include dispute settlement provisions, incorporating the LOSC dispute settlement mechanisms.89 The latter can be useful where disputes arise regarding or out of the conduct of inspections.

In other cases, however, the relationship between inspections and dispute settlement is less clear. MEAs providing for implementation and compliance mechanisms (in the context of which, on-the-spot information gathering may take place) also include dispute settlement clauses, according to which disputes concerning their interpretation or application shall be resolved through negotiations or other peaceful means, or may be submitted to arbitration or the ICJ with the parties’ consent.90 As they do not allow for unilateral recourse to arbitration or adjudication, these mechanisms have not been used much.91 In arms control and disarmament, the CWC, beyond its elaborate system of inspections (both routine and challenge), includes a dispute settlement provision, envisaging referral to the ICJ, with the disputing parties’ consent.92 The CTBT also includes a dispute settlement provision with potential referral to the ICJ with the parties’ consent, and so do the Treaty of Tlatelolco and the Treaty of Pelindaba.93 Many of the treaties discussed in this paragraph contain “without prejudice” clauses as regards the relationship between inspections (and implementation and compliance mechanisms) and dispute settlement.94 Implying that the different processes exist “in parallel”,95 this raises both substantive and procedural questions,96 especially as their subject matter, i.e. questions of compliance with international norms, broadly overlaps. This issue has been discussed extensively in the context of MEAs, where different views have been expressed for example regarding the question whether a pending compliance procedure should affect the initiation or conduct of a dispute settlement process (and vice versa).97

In all cases, however, inspections processes and dispute settlement, especially international adjudication, are understood to fulfil different functions, as reflected in their working methods and the principles governing their operation, even if their overall objective is the same, i.e. to ensure that international norms are observed and implemented. Inspections are primarily designed as cooperative and non-confrontational processes, with their non-judicial character often emphasized,98 to “assemble a body of objective information concerning the situation” on the ground.99 At the time when the inspection takes place no dispute exists regarding (non)compliance with international law, or if there is disagreement or doubts about compliance these have not yet escalated into a fully fledged dispute (“crystallised” in dispute settlement parlance). Indeed, where inspections are triggered by allegations or evidence of non-compliance, or occur in the context of non-compliance procedures, as in MEAs, they remain for the most part (and are often explicitly enjoined to be) non-adversarial and facilitative.100 In these latter cases, the procedure tends to be more structured and, similar to international adjudication, the right of the inspected party to be heard acquires importance. Finally, the outcomes of inspections and international adjudication differ. International adjudicatory mechanisms primarily make findings of violations and international responsibility, including the duty to make reparations. Inspection processes primarily establish facts and information relative to compliance, and although this happens by reference to international rules and standards, they are not generally empowered to make determinations of violation or draw consequences if non-compliance is detected.101 Even when inspections occur in the context of non-compliance procedures or when monitoring bodies are empowered to make recommendations for improvement, such outcomes differ from the remedies ordered in international adjudication.102

Having discussed international inspections in more detail, this section addressed their function as perceived in the international legal order and their relationship to international adjudication. Next, I will use inspections to think about sovereignty and order in international law.

4 Thinking with International Inspections about Sovereignty and Order

The idea(l) of State consent, and its relationship to sovereignty (and sovereign equality), is fundamental to the structure of the international legal order.103 It is particularly important in international adjudication, where it is often affirmed that no State may be brought before an international court without its consent. Jurisdiction depends on consent, which is thought to protect sovereignty, and in this case “sovereignty (…) protects states which may be in breach of their obligations”.104 The ICJ has confirmed this, amongst others in its Monetary Gold judgment.105 This is an important part of the narrative when discussing dispute settlement and international adjudication.

The role of sovereignty and consent in international inspections is more difficult to grasp. These structural principles of the international legal order would seem as central to inspections as they are to international adjudication, if not more. This is particularly so, given that international inspections are very intrusive, taking place in the territory of a State or within its jurisdiction (e.g., on vessels flying its flag), with inspectors undertaking functions that normally belong to a State’s authorities (particularly the executive branch).106 Yet, little scholarly attention has been paid, at least in a holistic manner,107 to these issues so far.

Considering State consent, in many cases, inspections are established in treaties108 or, more rarely, find their basis in customary international law.109 Other inspection processes are on less stable grounds. For MEAs, some have been created through Conference (or Meeting) of the Parties (COP) decisions, such as the in-country technical reviews under the Paris Agreement110 or the on-the-spot gathering of information by the Implementation and Compliance Committee of the Basel Convention.111 Yet other inspection processes are grounded in the practice of monitoring bodies and institutions. For example, the RAMSAR Monitoring Procedure (today RAMSAR Advisory Mission) was initially developed by the Convention’s Standing Committee, and only later formalised in a recommendation of the Meeting of the Parties.112 According to long-standing practice, the CITES Secretariat undertakes ad hoc visits or missions to States parties “to gather information, assess problems and/or provide advice and technical assistance to relevant national authorities”.113 Although ad hoc missions require the State’s consent to materialise, where a State had refused to grant it, the Standing Committee (i.e. CITES’ compliance body) recommended trade sanctions to pressure the party to consent.114 For UN Special Procedures country visits the State’s consent is also essential, but through “persuasion” or “international pressure” unwilling parties may agree.115 In other cases, inspections are imposed in circumstances that States have little choice but to accept them. The inspections found in the peace treaties following the First World War,116 or those established by the Security Council under Chapter VII UN Charter,117 are prime examples.

Against this background, I argue that we need to think more critically about what the expansion of such processes means for international lawyers’ perception of the role of consent and sovereignty in international law, particularly as certain inspection systems have been criticised for bias or seem to focus their attentions on certain parts of the world only,118 while the effects of their monitoring can be quite far-reaching for States.119 This is compounded by the following two considerations, demonstrating that inspections play a particular ordering function in the international system. First, where international inspections are expanded to (discipline) those that view themselves more as “inspectors” and less as “inspected”, different types of backlash are observed.120 For example, Western States, that see themselves as beacons of human rights,121 have reacted with hostility to UN Special Procedures country visits (including by attacking Special Rapporteurs personally and dismissing their factual findings as inaccurate or false), when the latter’s findings deviate from or threaten this image.122

Second, as discussed above, international inspections aim to establish or solicit facts that are relevant to compliance with international norms. While facts are viewed as “all-important in justifying international action”,123 they can be manipulated or constructed to serve particular agendas, also in violation of international law.124 In the field traditionally associated with inspections, namely disarmament, the argument for international inspections is that so long as the Stat e consents to inspections and fulfils its international obligations, its sovereignty is secured: given that it does not endanger international peace and security, no sanctions, forcible or otherwise, may be imposed on it. But the instrumentalization of international inspections in the period leading up to the 2003 Iraq War to justify the use of force against Iraq indicates otherwise. As Peevers has shown, “given the clear illegality of following a policy of regime change”, the UK government focused its legal justification for war on the threat posed by Iraq’s weapons of mass destruction and the purported breakdown of UN inspections.125 United Nations inspections, and UN Security Council procedures more generally, were to be used as “a rhetorical strategy deployed to ensure the validity of their [coalition forces’] legal justification for going to war: a claim to internationalized authority to discipline Iraq”.126 Parfitt has narrated an earlier incident connected to Ethiopia’s admission to the League of Nations:127 to justify its aggression against Ethiopia, Italy used the “special obligations” (including League supervision) imposed on Ethiopia as a condition for membership, arguing that Ethiopia “had not met the conditions … and therefore was no longer entitled to the protections either of the Covenant or of international law more generally”.128 Such incidents suggest that the ordering function of international inspections has a limit, encountered when certain States do not hesitate to revert to military violence when inspections do not produce facts or results they want.129

5 Conclusion

The Manila Declaration reminds States that recourse to the ICJ or other international courts for the settlement of their disputes “should not be perceived as an unfriendly act”.130 Although the mere existence of courts can influence States’ behaviour,131 the moment a dispute is brought before an international court represents a moment of crisis in the relationship of the parties. When we focus on international courts to understand how international law works, we allow such “crises” to “structure our thinking about international law”.132 This way, big parts of the everyday life of international law and institutions are rendered invisible or relegated to “simply another sub-field of international law which is generally perceived to merit less attention”.133

Building on existing work,134 I have argued here that, to understand how order is produced in the international system, we need to look past international courts and into other processes, focusing for this reason on international inspections. International inspections are ubiquitous in the international system, and important mechanisms through which order is produced in and by international law. This article discussed their functions and their relationship with dispute settlement, particularly international adjudication, to show how they differ from the latter in inducing compliance with international norms. And finally, I have argued that, given their widespread use and far-reaching remit, we need to think more critically about how such processes interact with the principle of consent and unsettle sovereignty and sovereign equality in the international system.


I initially conducted research on international inspections which I partly discuss in this article during my participation in the 2018 Centre for Studies and Research at The Hague Academy of International Law. I am grateful to the Directors of the 2018 Centre, Anne-Laure Chaumette and Christian J. Tams, and the rest of the participants for their contribution to my thinking about and knowledge of international inspections. The collective product of our work is published in Anne-Laure Chaumette and Christian J. Tams (eds.), International Inspections. Les inspections internationales (2022).

I presented an earlier draft of this article at the conference “International Law without International Courts”, organized by the ASIL IG on International Courts and Tribunals, where I benefited from the other participants’ interesting questions and contributions. For their thoughtful engagement with and comments on earlier drafts, I warmly thank Miles Jackson, Ana Luísa Bernardino, David Bigge, Loris Marotti, and two anonymous reviewers. All errors are of course my own.


E.g., Karen Alter, The New Terrain of International Law: Courts, Politics, Rights (2014); Benedict Kingsbury, “International Courts: Uneven Judicialisation in Global Order”, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (2012). The real expansion in the use of international courts and the judicialization of international affairs happened in the 1990s. See Yuval Shany, “No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary”, 20 European Journal of International Law (2009), 73, 79; Cesare P.R. Romano, “The Proliferation of International Judicial Bodies: The Pieces of the Puzzle”, 31 New York University Journal of International Law and Politics (1999), 709–710.


Kingsbury, supra note 1, at 210.


See, for different views, Vaughan Lowe, “The Function of Litigation in International Society”, 61 International and Comparative Law Quarterly (2012), 209; Karen Alter, “The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review”, in J.L. Dunoff and M.A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (2012), 345; Dapo Akande, “The Role of the International Court of Justice in the Maintenance of International Peace”, 8 African Journal of International and Comparative Law (1996), 592; James T. Gathii, “Introduction: The Performance of Africa’s International Courts”, in J.T. Gathii (ed.), The Performance of Africa’s International Courts: Using Litigation for Political, Legal, and Social Change (2020), 1; Helen Duffy, Strategic Human Rights Litigation: Understanding and Maximising Impact (2018); Douglas Guilfoyle, “The Chagos Archipelago before International Tribunals: Strategic Litigation and the Production of Historical Knowledge”, 21 Melbourne Journal of International Law (2021), 749. And the more general Armin von Bogdandy and Ingo Venzke, “On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority”, 26 Leiden Journal of International Law (2013), 49.


See, e.g., Robert Jennings, “The Judicial Enforcement of International Obligations”, 47 Zeitschrift für ausländishes öffentliches Recht und Völkerrecht (1987), 3, asserting that “the court judgment or order is the acid test of [e]nforcement”; von Bogdandy and Venzke, supra note 3, at 54–55, speaking about international courts “stabilising normative expectations”.


See, e.g., Ingo Venzke, “The Role of International Courts as Interpreters and Developers of the Law: Working Out the Jurisgenerative Practice of Interpretation”, 34 Loyola L.A. International and Comparative Law Review (2011), 99.


B.S. Chimni, International Law and World Order: A Critique of Contemporary Approaches (2nd edition, 2017), 14. See, e.g., Romano, supra note 1, at 750–751. And see von Bogdandy and Venzke, supra note 3, at 59, discussing the legitimising function of international courts.


Olufemi Elias and Chin Lim, “‘General Principles of Law’, ‘Soft’ Law and the Identification of International Law”, 28 Netherlands Yearbook of International Law (1997), 3, 15; more recently, Alter, supra note 1, at 4; cf. Cesare P.R. Romano, “The Shadow Zones of International Judicialization”, in C.P.R. Romano et al. (eds.), The Oxford Handbook of International Adjudication (2013), 90.


Ian Johnstone and Steven Ratner (eds.), Talking International Law: Legal Argumentation Outside the Courtroom (2021), generally.


Madelaine Chiam, “Public Invocation of International Law and Legacies of the Iraq War”, 9 London Review of International Law (2021), 271, 277.


Ibid., p. 276. Chiam uses “legality” as relating to the violation (or not) of international law by certain conduct and, more broadly, as concerns the “authority to speak international law”, to contribute to the making and development of legal rules (ibid., pp. 276–277 and generally). Both these meanings are relevant to understanding the function of international inspections.


Fuad Zarbiyev, “On the Judge Centredness of the International Legal Self”, 32 European Journal of International Law (2021), 1139, 1160 and generally.


Anne Orford, “Constituting Order”, Crawford and Koskenniemi, supra note 1, 271.


Including beyond international legal scholarship. See Nicholas Greenwood Onuf, “International Legal Order as an Idea”, 73 American Journal of International Law (1979), 244.


Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (2005), 5.


Mohammed Bedjaoui, Towards a New International Economic Order (1979), 19. He continued: “[A] certain type of ‘order’, [is] i.e. a specific organization of socio-economic and politico-legal relationships between States, groups or individuals” (ibid.).


Orford, supra note 12, at 271–272.


Bedjaoui, supra note 15, at 14.


For normative aspects of the concept of “world order”, see Richard Falk, The End of World Order: Essays on Normative International Relations (1983), as cited in Chimni, supra note 6, at 30. See also Onuf, supra note 13, at 244, defining “order” as “resid[ing] in orderly relations, that is, patterned and predictable relations, among people, but is abstracted from those relations as any arrangement of norms and institutions that distributes values among people”; and the discussion in Orford, supra note 12, generally.


On this point, see Susan Marks, “State-Centrism, International Law, and the Anxieties of Influence”, 19 Leiden Journal of International Law (2006), 339. See also Hans Kelsen, “Sanctions in International Law under the Charter of the United Nations”, 31 Iowa Law Review (1946), 499: “Sanctions are the specific reactions of the community, constituted by the legal order,…” [emphasis added]. The discussion in Kathryn Greenman et al., “International Law and Revolution: 1917 and Beyond”, in K. Greenman et al. (eds.), Revolutions in International Law: The Legacies of 1917 (2021), 1, 2–3, is also instructive.


Aliki Semertzi, “Modernist Violence: Juxtaposing the League’s Permanent Mandates Commission over the Bondelzwarts Rebellion and the US-Mexico Special Claims Commission over the Mexican Revolutions”, 21 Melbourne Journal of International Law (2021), 275, 293–294, and generally. Discussing how international law devises mechanisms to discipline and order “unruly subjects” (“disciplining international legal technologies”), Semertzi argues with a Foucauldian vocabulary, ibid., pp. 5–6 and fn. 15.


In Susan Marks’ words, viewing “state power as a product of international law” (see Marks, supra note 19, at 346).


See, for a thoughtful discussion of the different positions, Frédéric Mégret, “International Law as Law”, in Crawford and Koskenniemi, supra note 1, 64.


Kelsen, supra note 19, at 500–501; Antonios Tzanakopoulos, “The Right to Be Free from Economic Coercion”, 4 Cambridge Journal of International and Comparative Law (2015), 616, 616–617. Without a collective enforcement mechanism, the system has often been considered to be “in a precarious state” (see Eric Stein, “Collective Enforcement of International Obligations”, 47 Zeitschrift für ausländishes öffentliches Recht und Völkerrecht (1987), 56, 64).


But see, for a critique, Charlotte Peevers, “Liberal Internationalism, Radical Transformation and the Making of World Orders”, 29 European Journal of International Law (2018), 303, 314 et seq.


General Treaty for Renunciation of War as an Instrument of National Policy (adopted 27 August 1928, entered into force 25 July 1929) 96 L.N.T.S. 57; Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 U.N.T.S. XVI (UN Charter), Art. 2(4). See the detailed discussion in Oona A. Hathaway and Scott J. Shapiro, The Internationalists and Their Plan to Outlaw War (2017). Cf. Dino Kritsiotis, “International Law and the Relativities of Enforcement”, in Crawford and Koskenniemi, supra note 1, 245.


See Articles on the Responsibility of States for Internationally Wrongful Acts, UN General Assembly Res. 56/83 (12 December 2001), Annex (ARSIWA), Art. 2.


Ibid., Art. 49; and ILC, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries” (ARSIWA Commentary), Yearbook of the International Law Commission (2001), Vol. II(2), 128, para. 1.


Karl Zemanek, “The Unilateral Enforcement of International Obligations”, 47 Zeitschrift für ausländishes öffentliches Recht und Völkerrecht (1987), 32, 43. See also, for a discussion, Martti Koskenniemi, “Solidarity Measures: State Responsibility as a New International Order?”, 72 British Yearbook of International Law (2002), 337, 343–344; Kritsiotis, supra note 25, at 251–252.


E.g., countermeasures might lead the responsible State to pursue the peaceful settlement of the dispute as required under Art. 2(3) UN Charter. See Zemanek, supra note 28, at 37.


ARSIWA Commentary, supra note 27, at 128, para. 3. See also for a discussion Tzanakopoulos, supra note 23, at 626. Connected to retorsion, whether economic coercion is lawful under international law has been a matter of contention for a long time. See, e.g., Peevers, supra note 24, at 315. See also the EU initiative for an Anti-Coercion Instrument, available at <>.


See, e.g., Kelsen, supra note 19; Antonios Tzanakopoulos, “We Who Are Not as Others: Sanctions and (Global) Security Governance”, in R. Geiss and N. Melzer (eds.), The Oxford Handbook of the International Law of Global Security (2021), 773. I leave aside here the growing role of domestic courts in the enforcement of international norms, but see for a study, ILA Study Group on Principles on the Engagement of Domestic Courts with International Law, “Final Report: Mapping the Engagement of Domestic Courts with International Law” (Johannesburg Conference, 2016).


See Eleni Methymaki, “‘Unity Within Diversity’? Commonalities and Differences in International Inspections”, in A.-L. Chaumette and C.J. Tams (eds.), International Inspections. Les inspections internationales (2022), 184 with further references.


Jana von Stein, “The Engines of Compliance”, in Dunoff and Pollack, supra note 3, 478. See also Michael Bothe, “Compliance”, Max Planck Encyclopedia of Public International Law (October 2010), para. 1.


See also Obiora Chinedu Okafor, “The African System on Human and Peoples’ Rights, Quasi-Constructivism, and the Possibility of Peacebuilding within African States”, 8 International Journal of Human Rights (2004), 413, 417; Bothe, supra note 33, para. 1.


Onuf, supra note 13, at 244.


Okafor, supra note 34, at 418–421 and generally; also Monica Hakimi, “Why Should We Care About International Law”, 118 Michigan Law Review (2020), 1283, 1286. For criticism of the concepts of “compliance” and “effectiveness”, see also Gathii, supra note 3, at 8–9.


See ARSIWA, supra note 26, Art. 42. Responsibility, however, arises independently of any such invocation, see ARSIWA Commentary, supra note 27, at 116.


Shany, supra note 1, 75.


E.g., Rudolf Bernhardt, “Die gerichtliche Durchsetzung völkerrechtlicher Verpflichtungen”, 47 Zeitschrift für ausländishes öffentliches Recht und Völkerrecht (1987), 17, 28, discussing the then newly formed dispute settlement system under the United Nations Convention on the Law of the Sea (UNCLOS); from a more general perspective, Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication”, 107 Yale Law Journal (1997), 273. For the point made here, see also Thomas Skouteris, “The Idea of Progress”, in A. Orford and F. Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (2016), 948 et seq. and generally.


Kingsbury, supra note 1, at 217–218; also the discussion in Federica I. Paddeu, “To Convene or Not to Convene? The Future Status of the Articles on State Responsibility: Recent Developments”, 21 Max Planck Yearbook of United Nations Law (2018), 83, 97–98. For a recent study testing the “compliance pull” of international courts empirically, see Harlan Cohen and Ryan Powers, “Judicialization and Public Support for Compliance with International Commitments” (2022), University of Georgia School of Law Research Papers No. 2022–03, available at <>.


Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432, Dissenting Opinion Weeramantry, para. 53 [emphasis added]. See also ibid., Separate Opinion Kooijmans, paras. 13–20; and Dissenting Opinion Bedjaoui, paras. 42–61 for similar reflections.


Abdulqawi Ahmed Yusuf, “The Rule of Law at the International Level: Evolution and Challenges” (ASIL Annual Meeting 2021, Keynote: A Conversation with Judge Yusuf), available at <>. Cf. the discussion in Hakimi, supra note 36. Although I do not explore this further here, Hakimi’s discussion of international law’s argumentative practice implies that a range of institutions and processes (beyond international courts) are important for the rule of law at the international level. Inspections can be conceptualised as one tool through which international law’s argumentative practice is structured.


See Kritsiotis, supra note 25, at 267; Bothe, supra note 33, para. 115; Jutta Brunnée, “Compliance Control”, in G. Ulfstein et al. (eds.), Making Treaties Work: Human Rights, Environment and Arms Control (2007), 19; Christian J. Tams, “Enforcement”, in Ulfstein et al., ibid., 391. For this point (already in 1991), see Rosalyn Higgins, “International Law and the Avoidance, Containment and Resolution of Disputes”, 230 Recueil des cours (1991-V), 13, 246.


Methymaki, supra note 32, at 184, citing Henry G. Schermers and Niels Blokker, International Institutional Law: Unity within Diversity (2011), 875–876, and with further references.


See Methymaki, supra note 32, at 185 and fn. 28, with further references distinguishing between “verification” and “monitoring”. See, e.g., Meinhard Doelle, “Non-Compliance Procedures”, in L. Rajamani and J. Peel (eds.), The Oxford Handbook of International Environmental Law (2nd edition, 2021), 976 discussing the various “compliance information systems” in the context of multilateral environmental agreements.


On the history of international inspections, see Raphaël Maurel, “Les régimes d’inspection à travers le temps: regards sur l’évolution d’un mécanisme de garantie en droit international”, in Chaumette and Tams, supra note 32.


Georges Fischer and Daniel Vignes, “Existe-t-il une fonction d’inspection dans la société internationale?”, in G. Fisher and D. Vignes (eds.), L’inspection internationale (1976), 7 [in French; author’s translation].


See Methymaki, supra note 32, at 192–193 (footnotes omitted), and s. 3.1 generally. Also Stefan Oeter, “Inspection in International Law: Monitoring Compliance and the Problem of Implementation in International Law”, 28 Netherlands Yearbook of International Law (1997), 101, 107; Winfried Lang, “Compliance with Disarmament Obligations”, 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1995), 69, 70. See also Jean Salmon (ed.), Dictionnaire de droit international public (2001), 582. On the difference between observation/observer and inspection/inspector, see Fischer and Vignes, supra note 47, at 8–9. There are also some international inspections grounded in customary international law. See infra note 109.


Conversely, I do not include in this definition internal accountability mechanisms of various international organizations, such as the World Bank Inspection Panel or the UN Joint Inspection Unit, as these perform different functions. For a discussion see, e.g., Erika de Wet, “Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review”, 9 German Law Journal (2008), 1987. Being functionally different (see Methymaki, supra note 32, at 193–196), I also exclude from this definition “inquiry” and “fact-finding” in the sense of dispute settlement methods under Art. 33 UN Charter, or as accountability mechanisms in human rights and humanitarian law (see, e.g., the Independent International Fact-Finding Mission on Myanmar established by HRC Resolution 34/22 (24 March 2017), UN Doc. A/HRC/34/22). Section 3 discusses in more detail the relationship between inspections and dispute settlement.


More examples are provided in the discussion infra. Elsewhere I have identified 85 international inspections systems, see Eleni Methymaki, “Annex: International Inspections Systems”, in Chaumette and Tams, supra note 32, at 609.


Article 87(3) UN Charter.


Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (adopted 17 December 1997, entered into force 15 February 1999) 2802 U.N.T.S. 225 (OECD Anti-Bribery Convention), Art. 12; “Country Monitoring Principles for the OECD Anti-Bribery Convention” (agreed 1998, revised 2009),; OECD Working Group on Bribery, “OECD Anti-Bribery Convention: Phase 4 Monitoring Guide” (revised April 2020),


See Art. IV(3) of the Articles of Agreement of the International Monetary Fund (adopted 22 July 1944, entered into force 27 December 1945) 2 U.N.T.S. 39 as amended, available at See


The Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 U.N.T.S. 71, Arts. VIIVIII and Protocol on Environmental Protection to the Antarctic Treaty (adopted 4 October 1991, entered into force 14 January 1998) (1991) 30 I.L.M. 1461, Art. 14.


Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) UN Registration No. I-54113, Art. 13(11) and (12), and Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, “Decision 18/CMA.1: Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement, Annex” (19 March 2019), UN Doc. FCCC/PA/CMA/2018/3/Add.2, paras. 146–188.


Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 U.N.T.S. 243, Art. XII (functions of the Secretariat), Art. XIII (International Measures) and relevant practice developed thereunder, discussed in Rosalind Reeve, Policing International Trade in Endangered Species: The CITES Treaty and Compliance (2004), 75–76, 77–80, and the (non-binding) CITES, “Guide to CITES Compliance Procedures” Res. Conf. 14.3 (Rev. CoP18) (2007) Annex. See also the Convention on Wetlands of International Importance Especially as Waterfowl Habitat (adopted 2 February 1971, entered into force 21 December 1975) 996 U.N.T.S. 245 (Ramsar Convention), and Conference of the Parties, “Recommendation 4.7: Mechanisms for Improved Application of the Ramsar Convention with Annex I” (4th Meeting, Montreux, 27 June–4 July 1990), formalising the “Ramsar Monitoring Procedure” currently called the “Ramsar Advisory Mission”.


European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987, entered into force 1 February 1989) 1561 U.N.T.S. 363 (ECPT), Art. 1 et seq.; Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 18 December 2002, entered into force 22 June 2006) 2375 U.N.T.S. 237 (OPCAT), Art. 1 et seq.


E.g., Convention (III) relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 U.N.T.S. 135, Art. 126; Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 U.N.T.S. 267, Arts. 76 and 143.


For the country visits conducted by the numerous Special Procedures of the Human Rights Council, see and Revised Terms of Reference for Country Visits by Special Procedures Mandate Holders of the UN Human Rights Council (based on Appendix V, E/CN.4/1998/45) (June 2016).


E.g., Convention on Cooperation in the Northwest Atlantic Fisheries (adopted 24 October 1978, entered into force 1 January 1979, as amended) 1135 U.N.T.S. 369, Art. VI and NAFO, “Conservation and Enforcement Measures 2020” NAFO/COM Doc. 20–01, Chaps. V (observer scheme), VI (at-sea inspection and surveillance scheme), VII (port state control); Convention on the Conservation of Antarctic Marine Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329 U.N.T.S. 47 (CCAMRL), Art. XXIV; United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 U.N.T.S. 3 (LOSC), Arts. 62(4)(g), 73(1), 110, 153(5), 162(2)(z), 218, 220(2) and (5), and 226, among others; Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 U.N.T.S. 3 (Straddling Fish Stocks Agreement), Arts. 18(3)(f), (g), 19–22; Paris Memorandum of Understanding on Port State Control (adopted 26 January 1982, entered into force 1 July 1982) (1982) 21 I.L.M. 1 (as amended); Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (adopted 22 November 2009, entered into force 5 June 2006), F.A.O. Doc. C 2009/LIM/11-Rev.1, Part 4.v.


E.g., Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (signed 14 February 1967, entered into force 22 April 1968) 634 U.N.T.S. 281 (Treaty of Tlatelolco), Arts. 12 et seq., especially Art. 16; Treaty on the Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 729 U.N.T.S. 161, Art. III and IAEA Safeguards Agreements and Additional Protocols for the Application of Safeguards (available at; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 1974 U.N.T.S. 45 (CWC), Arts. IV(3)–(5), V(3), (6), (7), (15), VI(3), IX, X and Annex on Implementation and Verification (Verification Annex); African Nuclear-Weapon-Free Zone Treaty (adopted 11 April 1996, entered into force 15 July 2009), (1996) 35 I.L.M. 702 (Treaty of Pelindaba), Art. 9 and Annexes II, IV; Comprehensive Nuclear-Test-Ban Treaty and Protocol to the CTBT, Part II (opened for signature 24 September 1996, not yet in force), UN General Assembly Res. 50/245 (10 September 1996) and UN Doc. A/50/1027, Art. IV.


But see supra note 3 and text.


That said, inspections might also create disputes: the Estai incident between Canada and Spain is a good example. See Fisheries Jurisdiction, supra note 41; and the discussion in Peter G.G. Davies and Catherine Redgwell, “The International Legal Regulation of Straddling Fish Stocks”, 67 British Yearbook of International Law (1996), 199, 202–218.


Reeve, supra note 56, at 62; also, more generally, Cosette D. Creamer and Beth A. Simmons, “The Proof is in the Process: Self-Reporting Under International Human Rights Treaties”, 114 American Journal of International Law (2020), 1, 5–6.


See from different perspectives and focusing on different fields: Mirco Sossai, “Transparency as a Cornerstone of Disarmament and Non-Proliferation Regimes”, in A. Bianchi and A. Peters (eds.), Transparency in International Law (2013), 406; Jutta Brunnée and Ellen Hey, “Transparency and International Environmental Institutions”, in Bianchi and Peters, ibid., at 38–42; Rosemary Rayfuse, “To Our Children’s Children’s Children: From Promoting to Achieving Compliance in High Seas Fisheries”, 20 International Journal of Marine and Coastal Law (2005), 509; OHCHR, “Manual of Operations of the Special Procedures of the Human Rights Council” (August 2008), paras. 52–54; Renate Kicher, “The European Convention on the Prevention of Torture compared with the United Nations Convention Against Torture and its Optional Protocol”, in Ulfstein et al., supra note 43, 91; Michael Breen and Elliott Doak, “The IMF as a Global Monitor: Surveillance, Information, and Financial Markets”, Review of International Political Economy (2021), 1 (for a rather situated perspective); see also, Oeter, supra note 48, generally.


Ahmed Shaheed and Rose Paris Richter, “Coping Mechanisms for State Non-Cooperation”, in A. Nolan et al. (eds.), The United Nations Special Procedures (2017), 185.


See Commentary to the Third Geneva Convention (2020), Art. 126, para. 4923, available at <>.


Lavanya Rajamani, “Innovation and Experimentation in the International Climate Change Regime”, 404 Recueil des cours (2020), 199–200.


Thilo Marauhn, “Dispute Resolution, Compliance Control and Enforcement of International Arms Control”, in Ulfstein et al., supra note 43, 272, and generally.


I have made this point previously in Methymaki, supra note 32, at 209. See also Oeter, supra note 48, at 107–108. Loris Marotti, “Inspectors: Their Rights and Duties”, in Chaumette and Tams, supra note 32, distinguishes between “contentious v non-contentious inspections”, each requiring different standards of impartiality by the inspectors; Anne-Laure Chaumette and Christian J. Tams, “Mapping International Inspections: Joint Report of the Directors of Studies”, in Chaumette and Tams, supra note 32, who use the terminology “regular”, “discretionary”, and “qualified” to describe the different ways that international inspections processes are “triggered”.


Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into force 1 February 2008) E.T.S. No. 197, Art. 38(4).


Art. 7(1) ECPT.


Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (adopted 18 September 1997, entered into force 1 March 1999), 2056 U.N.T.S. 211 (Anti-Personnel Landmines Convention), Art. 8(8); also, the “special inspection” under the South Pacific Nuclear Free Zone (adopted 6 August 1985, entered into force 11 December 1986), 1445 U.N.T.S. 177 (Treaty of Rarotonga), Annex 4(4).


E.g., Aarhus Convention MoP, “Decision I/7: Review of Compliance”, Report of the First Meeting of the Parties, UN Doc. ECE/MP.PP2/Add.8 (2 April 2004), Annex, para. 25(b); Montreal Protocol MoP, Decision IV/5, Annex IV of the Fourth Meeting of the Parties (1992), revised by Decision X/10 of the Tenth Meeting of the Parties (1998), para. 7(d).


Methymaki, supra note 32, at 209.


See Creamer and Simmons, supra note 64, the title of their article and generally.


Hilary Charlesworth and Emma Larking, “Introduction: The Regulatory Power of the Universal Periodic Review”, in H. Charlesworth and E. Larking (eds.), Human Rights and the Universal Periodic Review: Rituals and Ritualism (2015), 1, 8.


Ibid., p. 9.


At the same time, focus on the inspection process itself, and its structured and routine character, may draw attention away from a party’s substantive non-compliance or allow for violations in areas falling outside the purview of inspections (Charlesworth and Larking’s use of the term “ritualism” is relevant here, ibid., p. 10). This criticism is often levelled against, e.g., the CWC routine inspections.


A related issue which this article does not tackle is the identity of inspectors, their selection process, the rights and powers they have and the duties they bear, including with regard to the requirements of independence and impartiality. For a good study of this, see Marotti, supra note 70. According to Marotti, how institutionalized an inspections system is affects “the scope and nature of inspectors’ rights and duties” (ibid.). He identifies, however, certain core rights (such as immunities and privileges) and duties (such as integrity and impartiality) pertaining to international inspectors generally, albeit in different degrees and configurations, making them akin to other international actors, such as international civil servants, members of treaty monitoring bodies, or even international adjudicators (ibid.).


E.g., supra note 74; Annex IV Treaty of Pelindaba.


For a discussion of the latter, see Marco Benatar, “Site Visit”, in H. Ruiz Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (September 2016).


See infra, notes 113–114 and text.


See the discussion in Rayfuse, supra note 65, at 517 et seq.


European Convention on Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), E.T.S. No. 5.


CoE, “Explanatory Report to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment”, Doc. CPT/Inf/C(2002)1 (ECPT Explanatory Report), para. 13.


Commentary to the Third Geneva Convention (2020), supra note 67, Art. 132, para. 5302.


Ibid., para. 5300.


E.g., Arts. 27–32 Straddling Fish Stocks Agreement; Art. XV NAFO Agreement; Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (adopted 5 September 2000, entered into force 19 June 2004) 2275 U.N.T.S. 43, Art. 31.


E.g., Basel Convention, Art. 20; Vienna Convention for the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 27 September 1988) 1513 U.N.T.S. 293, Art. 11; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 U.N.T.S. 447 (Aarhus Convention), Art. 16. See also Tullio Treves, “The Settlement of Disputes and Non-Compliance Procedures”, in Treves et al. (eds.), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (2009), 499 and generally.


Treves, ibid., pp. 501–503.




Art. VI CTBT; Art. 25 Treaty of Tlatelolco; Art. 15 Treaty of Pelindaba. The latter distinguishes between disputes concerning the interpretation of the treaty to be settled (amongst others) by the ICJ, if the parties so agree, and complaints concerning treaty breaches to be resolved through the Complaints Procedure established under Art. 12 and Annex IV of the Treaty. Generally, dispute settlement provisions in disarmament treaties are not considered to play a substantial role. See Marauhn, supra note 69, at 255–257; Xinjun Zhang, “Dispute Settlement Under Disarmament Treaties”, in H. Ruiz Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (January 2021).


Art. VI(6) CBTB; Art. 10(3) Anti-Personnel Landmines Convention; Basel Convention, Decision IV/12, Appendix, “Mechanism for Promoting Implementation and Compliance: Terms of Reference”, para. 27; Aarhus Convention, Decision I/7, supra note 74, para. 38; Montreal Protocol MoP, Decision IV/5, supra note 74.


Marauhn, supra note 69, 257.


See, e.g., the discussion in Treves, supra note 90, 505 et seq.; Malgosia Fitzmaurice and Catherine Redgwell, “Environmental Non-Compliance Procedures and International Law”, 31 Netherlands Yearbook of International Law (2000), 35, 43 et seq.


See, e.g., Treves, ibid.; Fitzmaurice and Redgwell, ibid.; Martti Koskenniemi, “Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol”, 3 Yearbook of International Environmental Law (1993), 123, 157 et seq.; Yoshifumi Tanaka, “Compliance Procedures: Multilateral Environmental Agreements (MEAs)”, in H. Ruiz Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (March 2021), paras. 44 et seq. A rare example of a treaty addressing this explicitly is the Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997) 1989 U.N.T.S. 309 (Espoo Convention). See Espoo Convention MoP, “Decision III/2: Structure and Functions of the Implementation Committee and Procedures for Review of Compliance”, Report of the Third Meeting of the Parties, UN Doc. ECE/MP.EIA/6 (13 September 2004) Annex II, Appendix (as amended), para. 15. A different but related question is whether an international adjudicatory mechanism that is seized of a dispute subsequent to an inspections procedure can or may rely on the findings of the latter, especially the factual findings, to establish breach, responsibility, or even the extent of damage to assess compensation. The practice of the ICJ in utilising evidence gathered through a prior non-judicial process, particularly by other (fact-finding) UN bodies, may offer useful guidance here; see, for a discussion of some of the challenges this raises, Michael Becker, “The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar”, EJIL: Talk! (14 December 2019), available at <>.


See, e.g., CoE, “Explanatory Report to the European Charter for Regional or Minority Languages” (5 November 1992), para. 129; for the monitoring procedure, see European Charter for Regional or Minority Languages (adopted 5 November 1992, entered into force 1 March 1998) E.T.S. No. 148, Arts. 15–17; CoE, “Rules of Procedure of the Committee of Experts of the European Charter for Regional or Minority Languages”, Doc. MIN-LANG(2019)7 (18 March 2019), Rule 17(2), (5); ECPT Explanatory Report, supra note 86, para. 25.


Regional or Minority Languages Charter Explanatory Report, ibid., para. 132.


E.g., Basel Convention, Decision IV/12, supra note 94, paras. 1 and 2; Aarhus Convention, Art. 15 and Decision I/7, supra note 74; see also Tanaka, supra note 97, para. 6.


E.g., ECPT Explanatory Report, supra note 86, para. 17. This distinction between fact and law, or legal determination, is in reality not as absolute or rigid. See Mégret, infra note 123, at 33–35.


For this point, Treves, supra note 90, 510; and the discussion generally in Fitzmaurice and Redgwell, supra note 96.


Orford, supra note 12, 271.


James Crawford, “Sovereignty as a Legal Value”, in Crawford and Koskenniemi, supra note 1, 124, 125. E.g., Fisheries Jurisdiction, supra note 41, at paras. 55–56.


Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19, at 32.


Crawford, supra note 104, at 121 from a more general perspective; and Marauhn, supra note 69, at 263; Oeter, supra note 48, at 107. See also Methymaki, supra note 32, at 204–205 for more elaboration on this.


But see, Yoshifumi Tanaka, “The Changing Approaches to Conservation of Marine Living Resources in International Law”, 71 Zeitschrift für ausländishes öffentliches Recht und Völkerrecht (2011), 291, 322–328.


See the examples supra notes 54, 57, 60, 61.


E.g., the right of warships to visit foreign ships on the high seas, codified in Art. 110 LOSC, see Douglas Guilfoyle, “Article 110: Right to Visit”, in A. Proelß (ed.), The United Nations Convention on the Law of the Sea (2017), 768; or ICRC’s visits of detention facilities during an international armed conflict, see Commentary on the Third Geneva Convention (2020), supra note 67, Art. 126, para. 4922 and fn. 1.


Supra note 55.


Basel Convention, Art. 15(5)(e) and Decision IV/12, supra note 94, para. 22(d); also Aarhus Convention, Decision I/7, supra note 74, para. 25(b).


RAMSAR Convention, Recommendation 4.7, supra note 56.


Reeve, supra note 56, at 75.




Marc Limon, “Strengthening Cooperation: The Key to Unlocking the Potential of the Special Procedures”, in Nolan et al., supra note 66, at 141, 142.


E.g., Treaty of Peace Between the Allied and Associated Powers and Germany (signed 28 June 1919, entered into force 10 January 1920) 112 B.F.S.P. 1, [1919] U.K.T.S. 4 (Versailles Treaty), Part V, Arts. 159 et seq., especially Arts. 203–210.


E.g., UN Security Council Res. 687 (1991) and 1284 (1999) establishing the UN Special Commission (UNSCOM) and the UN Monitoring, Verification and Inspection Commission (UNMOVIC) for Iraq. Some have identified such inspections systems as models of “coercive transparency”. See Sossai, supra note 65, at 408, 415.


See, e.g., for a discussion regarding CITES, Charlotte E. Blattner, “Compliance Procedure: Convention on International Trade in Endangered Species”, in H. Ruiz Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (May 2021), paras. 48–49.


E.g., Breen and Doak, supra note 65, discuss how IMF surveillance, including country visits and ensuing reports, “have large impacts on sovereign debt prices” (at 2), “wielding considerable influence in public life” (at 4, and more generally). They do not seem to consider this problematic. The present author disagrees.


We can draw parallels here with the legitimacy crisis of and backlash against investment arbitration, and international investment law more generally, which really entered mainstream discourse and prompted initiatives for the system’s reform when Western States (traditionally considering themselves as capital-exporting States) started facing increasing numbers of investment claims challenging core areas of domestic policy. See Andreas Kulick, “Reassertion of Control: An Introduction”, in A. Kulick (ed.), Reassertion of Control over the Investment Treaty Regime (2016), 3, 7; see also David Caron and Esmé Shirlow, “Dissecting Backlash: The Unarticulated Causes of Backlash and its Unintended Consequences”, in A. Follesdal and G. Ulfstein (eds.), The Judicialization of International Law: A Mixed Blessing? (2018), 159, 178, diplomatically phrasing this as (Western) States “responding to [their] changing risk profiles”.


For a now classical piece, see Makau Mutua, “Savages, Victims and Saviors: The Metaphor of Human Rights”, 42 Harvard International Law Journal (2001), 201.


See, e.g., the UK’s reaction to the report of the UN Special Rapporteur on Extreme Poverty and Human Rights, Philip Alston (Robert Booth, “UN poverty expert hits back over UK ministers’ denial of facts”, The Guardian (24 May 2019), available at <>), and especially of the UN Special Rapporteur on the Right to Housing, Raquel Rolnik (Matthew Taylor, “Author of bedroom tax report defends findings after government’s attack”, The Guardian (12 September 2013), available at <>). See also Canada’s response to the findings of the UN Special Rapporteur on the Right to Food, Olivier De Schutter (“Country Response to the Report of the Special Rapporteur on the Right to Food: Statement by the Delegation of Canada”, Human Rights Council, 4 March 2013, available at <>).


See the discussion in Frédéric Mégret, “Do Facts Exist, Can They Be ‘Found’, and Does It Matter?”, in P. Alston and S. Knuckey (eds.), The Transformation of Human Rights Fact-Finding (2016), 29.


Ibid., p. 46 and generally.


See, for detail, Charlotte Peevers, The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law (2013), 138, 142, 149, 183–186 and Chap. 5 generally.


Ibid., p. 143 [emphasis added]. Peevers also discusses how, at the same time, UK domestic audiences “used the UN bureaucratic regime of inspections as a resource to strengthen opposition to war” (ibid., p. 154), given the institution’s “credibility and legitimacy as an objective knowledge producer” (ibid., p. 155; also, p. 175).


See, generally, Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance (2019), and 63–64, 289–293.


Ibid., pp. 63 and 64.


This connects to the discussion in Greenman et al., supra note 19, at 23 of how the international legal order “rest[s] upon a constant denial of its violent origins”. The history of the Nuclear-Weapon-Free Zone Treaties, such as the Treaty of Tlatelolco (supra note 61), is interesting here as a counterpoint. Non-aligned States devised these agreements, in which they included inspections processes, to stave off the East-West hegemonic rivalry during the Cold War and “bring into legal reality the prohibition on the use of force” (Peevers, supra note 24, at 315). See, for a discussion, Ingo Venzke, “International Dispute Settlement during the Cold War”, in M. Craven et al. (eds.), Global International Law during the Cold War (2022, forthcoming), 19, available at <>.


UN General Assembly Res. 37/10 (15 November 1982), Annex, “Manila Declaration on the Peaceful Settlement of International Disputes”, para. II(5).


See, e.g., Emma Nyhan, “A Latent Encounter with the Court: How Australia and Japan Settled a Pearl Fisheries Dispute”, 21 Melbourne Journal of International Law (2021), 553.


H. Charlesworth, “International Law: A Discipline of Crisis”, 65 Modern Law Review (2002), 377, 382; also, Zarbiyev, supra note 11, at 17.


Ana Luísa Bernardino, “Going by the Book: What International Law Textbooks Teach Us Not to Know”, in A. Bianchi and M. Hirsch (eds.), International Law’s Invisible Frames (2021), 294.


Most recently, Zarbiyev, supra note 11, generally and at 17.

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