Abstract:
This thesis critically examines the enforcement mechanism of the International Court of Justice (ICJ) with a focus on its effectiveness, challenges, and recommendations for improvement. The study addresses key research questions related to the extent of obedience and enforcement of ICJ decisions, the effects of non-enforcement, and measures to ensure compliance. The objectives include determining the extent of obedience to ICJ decisions, examining the effects of non-enforcement, and suggesting measures for proper enforcement. The significance of the study lies in its potential to enhance the enforcement mechanism of the ICJ, strengthen the rule of law, and contribute to peaceful dispute resolution. Using a doctrinal method with historical comparative and analytical designs, the study analyzes the legal framework, challenges, and recommendations related to the enforcement of ICJ judgments. It focuses on recent developments and case law, highlighting the practical and theoretical significance of the findings. The study concludes that while there are challenges in enforcing ICJ decisions, improvements can be made through strengthening the role of the UN Security Council, enhancing cooperation among member states, increasing awareness of ICJ judgments, and improving the court's enforcement mechanisms. Additionally, dialogue, diplomacy, and support from NGOs and civil society can contribute to better enforcement and compliance with ICJ decisions.
Chapter 1:
1.1 Background of the Study
The need to institutionalize a World Court that would respond to the needs of the international community was conceived pursuant to the atmosphere created by the Hague Conferences of 1897 and 1907. Thus, prior to the establishment of the Permanent Court of Arbitration, no real step was actually taken in that direction until after the First World War.
It is noteworthy to mention that a lot of challenges are facing the global community arising from the settlement of international disputes.One of the serious challenges is the non-compliance with and non-enforcement of the decisions of the International Court of Justice which is often referred to as the “World Court”. This problem without doubt can threaten and has repeatedly threatened the existence of international dispute settling mechanisms, world peace and indeed the security of all nations of the world.The International Court of Justice (ICJ) was established in 1945 by the United Nations Charter and as the new court, it took over from the Permanent Court of International Justice (P.C.I.J.). The organization and structure of the ICJ and its statutes remain virtually the same with the P.C.I.J.[1]Thus, the essence of establishing the ICJ is for the purpose of judicial settlement of disputes arising from inter-states relationships. Deriving from this principal function of the Court, the study seeks to conduct an assessment of the effectiveness of the Court by virtue of evaluation of post-judgment conditions of the Court’s pronouncements. The essence of this study therefore, is to uncover the reasons behind any perceived weaknesses of the Court and to make recommendations for its improvement and strengthening.
The Covenant of League of Nations made moves for the formation of a World Court and in 1920 the P.C.I.J. was formed. The International Court of Justice (ICJ) replaced P.C.I.J. after the Second World War and Article 92 of the United Nations Charter described it as the “Principal Judicial Organ of the United Nations”.[2]Upon failure to comply with the judgement of the ICJ, the United Nations Charter authorize the United Nations Security Council to enforce the judgments of the World Court but findings have shown that, the power of enforcement is subject to the veto power of the five (5) permanent and paramount members in the Security Council.[3]
1.2 Statement of the Problem
Recent events show that the issue of International Court of Justice as it concerns the effect of its judgments and effectiveness of its pronouncements is giving most writers and scholars, serious concerns.Notwithstanding the concerns, none of the states or individuals hasmade efforts to see that the judgments of the said court are effective by amending the United Nations Charter to reflect separation of power which will give real “judicial independence” to the International Court of Justice because, as it stands, the Security Council with the veto power of the five permanent members can decide whether the judgment of the International Court of Justice should be executed or not. They can also decide to overrule the judgment of the International Court of Justice, without any consequence.
It should be noted that the non-compliance with the International Court of Justice judgments/ decisions became an apparent problem after the inauguration of the United Nations vis-à-vis the statute of International Court of justice as most of the ICJ judgments are self-executory and also declaratory in its very nature. With the foregoing in focus, there exist many cases of non-compliance with the decisions of ICJ and the number of non-compliance is ever growing which also involves major world powers and paramount members of what is known as the Security Control arm of the United Nations. For example, the first judgment of the International Court of Justice at its inception was the “Corfu Channel Cases[4] delivered on 15th day of December1949; but was not complied with by Albania until 1992, after about 40 years of the said judgment.[5]
In line with the position above, Iran also refused to comply with the ICJ provisional measures of 5th July, 1951 in the Anglo-Iranian Oil Co. Case (United Kingdom v. Iran)[6].
It is no gainsaying that Western Nations, most especially those of them that are permanent members of the United Nations Security Council do not always comply with ICJ judgments when such judgment are against their interest. For example, in the Nuclear Test casesofAustralia v. France and New Zealand v. France[7], just because France is a strong member of the
five permanent members of the Security Council, it refused to comply with the Court’s orders of provisional measures granted as at 25th July, 1974 (which affected those two cases), on the ground that there was no international treaty which prohibits it from carrying out its nuclear tests and that the Court did not have any jurisdiction since such a treaty was not in existence.
It is pertinent to mention the problem caused by the United States, which, apart from being a world power is also among the five permanent members of the Security Council but which flagrantly disobeyed the ICJ order of provisional measures of 10th day of May 1984 in the case of Nicaragua v. United States and the judgment of the Court in the same case delivered on the 27th June 1986[8]. The above problems and others which are dealt with in this work are the problems/ challenges facing the International Court of Justice.Thus, the powers of the Court are limited, though much is expected from it. This calls into question the effectiveness of the court in terms of achieving international peace and security. Further, the Court cannot control the states due to unenforceability of its judgements, for which, states that are not willing to comply come under the guise of lack of jurisdiction on the part of the Court.
1.3 Research Questions
To be able to adequately handle this research and in the course of the investigation, certain important and basic questions will readily come to mind and they are as follows:
- To what extent are the decisions of the International Court of Justice obeyed and enforced?
- What are the effects of non-enforcement of the International Court of Justice decisions?
- What measures could be employed to ensure that the non-enforcement of the decisions of the International Court of Justice comes to an end?
1.4 Objectives of the Study
The followings are the objectives of the study:-
- Todetermine the extent of the obedience and enforcement of compliance with the international court of justice decisions
- To examine the effects of non-enforcement of the decisions of the international court of justice.[9]
- To suggest appropriate measures that are necessary in order to ensure the proper enforcement of and compliance with the decisions of international court of justice.[10]
1.5 Significance of the study
1.5.1 Practical Significance
The practical significance of this study lies in its potential to improve the enforcement mechanism of the International Court of Justice (ICJ) and enhance compliance with its judgments. By identifying challenges and proposing recommendations for improvement, this study can contribute to strengthening the rule of law in the international community. Improved enforcement of ICJ judgments can lead to more peaceful resolution of disputes between states and greater respect for international law.
Furthermore, this study's findings and recommendations may be of interest to policymakers, legal practitioners, and international organizations involved in the ICJ's work. They can provide valuable insights into ways to overcome obstacles to enforcement and enhance the effectiveness of the ICJ's enforcement mechanism. This, in turn, can contribute to a more stable and predictable international legal order.
1.5.2 Theoretical Significance
From a theoretical perspective, this study contributes to the broader literature on international law and the functioning of international courts. By critically examining the enforcement mechanism of the ICJ, this study can shed light on the challenges and complexities of enforcing international legal obligations. It can also contribute to theoretical debates on the role of international courts in the international legal system and the effectiveness of international legal remedies.
Moreover, this study's findings may have implications for the development of international legal theory, particularly in relation to the enforcement of international judgments. By identifying factors that influence compliance with ICJ judgments, this study can contribute to a deeper understanding of the dynamics of international law and the mechanisms through which it is enforced.
1.6 Scope of the study
This study focuses specifically on the enforcement mechanism of the ICJ and does not cover other international courts or tribunals. It examines the legal framework, effectiveness, challenges, and recommendations related to the enforcement of ICJ judgments, with a particular emphasis on recent developments and case law.
1.7 Research Methodology
The research method adopted for this study is thedoctrinal method using the historical comparative and analytical designs. This method is historical in in nature in the sense that much of the work would be analysis and inferences drawn from the antecedents of the International Court of Justice; both as PCIJ and as ICJ, on one hand and the antecedents of the dispositions of the parties before the Court on the other hand. This aspect of the combined method would deal with the interface between parties before the ICJ and how the interface has been productive or unproductive in terms of post-adjudication judgment enforcement realities.
The second aspect of the method adopted shall deal with a comparative analysis of the statutes, rules, conventions and practices of the ICJ with those of regional/international institutions, domestic or nation states legal systems. This comparison unveils the differences in scope of the various states and institutional legislations and that of ICJ and how their provisions, and accorded force of law affect or influences the parties as against the recorded activities of the parties before the ICJ.
Further, in-between these sides of the combined method adopted for this study is the use of case law for the purpose of unveiling the thought patterns and tendencies of the Court with respect to their view of the Court pursuant to post adjudication conducts of the parties.In other words, the research adopted the critical, analyticaland comparative study methods, wheredata were derived from sources, which includes international law texts books, articles, journals, internet websites, periodicals and electronic print mediums. Thus, relevant sections of the Statute of the International Court of Justice and other international protocols were also analyzed to unveil certain weaknesses orchestrating the perceived non-compliance with judgements of the ICJ.
1.8 Definition of Terms
Judgment: A judgment is a formal decision or ruling issued by a court or tribunal, typically after considering evidence and legal arguments presented by the parties involved in a legal dispute. In the context of the International Court of Justice (ICJ), judgments are authoritative determinations of the law that settle disputes between states or provide advisory opinions on legal questions. These judgments are binding on the parties and are aimed at resolving the issues in contention. The ICJ's judgments are based on international law, treaties, customary law, and general principles of law recognized by civilized nations.
Enforcement: Enforcement refers to the process of ensuring that a judgment or decision is carried out or complied with. In the context of the ICJ, enforcement involves the implementation of measures to compel states to comply with the court's judgments. Enforcement mechanisms may include diplomatic pressure, economic sanctions, legal actions, or other coercive measures designed to induce compliance. The effectiveness of enforcement depends on the willingness of states to abide by the court's rulings and the availability of enforcement mechanisms.
Mechanism: A mechanism is a process or procedure designed to achieve a particular outcome or goal. In the context of the ICJ, the enforcement mechanism refers to the set of procedures and mechanisms used to ensure compliance with the court's judgments. This may include the issuance of formal orders, the monitoring of compliance, and the imposition of sanctions for non-compliance. The enforcement mechanism is an essential component of the ICJ's function, as it ensures that its judgments have practical effects and contribute to the maintenance of international peace and security.
Enforcement Mechanism: The enforcement mechanism of the ICJ encompasses a range of procedures and mechanisms aimed at ensuring compliance with the court's judgments. This includes diplomatic efforts to persuade states to comply voluntarily, as well as legal measures to enforce judgments against unwilling states. The enforcement mechanism of the ICJ is based on the principle of state consent, which means that states are expected to comply with the court's judgments voluntarily. However, in cases of non-compliance, the court may seek the assistance of the United Nations Security Council to enforce its judgments.
International Court of Justice (ICJ): The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, established to settle legal disputes between states and provide advisory opinions on legal questions. The ICJ is composed of 15 judges elected by the UN General Assembly and Security Council and operates in accordance with its statute and rules of procedure. The court's judgments are binding on the parties and are aimed at promoting the peaceful resolution of international disputes.
Enforcement Mechanisms (plural): Refers to the various methods and strategies used to enforce judgments or decisions, which may include diplomatic, political, economic, and legal measures. The enforcement mechanisms of the ICJ are designed to ensure that its judgments are implemented effectively and that states comply with their obligations under international law. These mechanisms may include the imposition of economic sanctions, the suspension of diplomatic relations, or the use of military force in extreme cases.
In the context of this study, “judgment” refers to the decisions or rulings issued by the International Court of Justice (ICJ), which are authoritative determinations of the law that settle disputes between states or provide advisory opinions on legal questions. “Enforcement” refers to the act of ensuring compliance with these judgments, which may involve diplomatic, political, economic, and legal measures. “Mechanism” refers to the processes and procedures involved in enforcement, while “enforcement mechanisms” refer to the specific methods and strategies used to enforce ICJ judgments, including diplomatic, political, economic, and legal measures.
1.9 Literature Review
The literature review in the context of this research is that the work took cognizance of various books and journals, notable among them are, Fitzmaurice, Tanzi and Wolfrum[11]; all admitted that the problem of compliance with ICJ judicial decisions is one of the most difficult problems when it comes to the issue of public international law and international relations as it constitutes a delicate area of both international law and international relations. In adding his voice to the issue of the problem of the judgments of the International Court of Justice in terms of compliance and implementation, Shabtai Rosenne, observed that between 1957 and 1997 respectively, a striking feature of the literature dealing with the judicial settlement of international disputes indicate the Court’s comparative disinterest in the post-adjudication phase”.
In furtherance of the foregoing, Aloysius P. Llamzon stated that because of the realization of the inadequacies in the enforcement of the ICJ judgments, Judge Oda actually appealed to future scholars to owe it as a duty to undertake research on what he considered to be a subject missing from contemporary studies on the ICJ[12]; a pragmatic examination of whether a judgment once handed down has actually been complied with by the parties in the dispute, as to avoid enforcement. He stated further that the original intention of the founders of the UN was for the ICJ to be at the very heart of the general system for the maintenance of peace and security[13]. One need only to glance at the current news however to find out that this objective has not, nor is it ever likely to come to fruition. In the foregoing regard, Attila Tanzi[14] stated that Article 94(2) of the UN Charter vested the Security Council with the power to give effect to a judgment of the ICJ but that even though it looks as if there is cohesion between the two organs of the UN, a close survey of the provision shows that the Security Council has discretion whether to enforce the judgment or not. The position of Attila Tanzil on the above subject matter had come before the members of the UN at the (25th-26thJune 1945) Francisco Conference, for which they were to determine whether in its final version, Article 94(2) and particularly the phrase “if it deems necessary” might impair the independence of the Court vis-à-vis the Security Council[15]. In order to maintain the power of the Security Council, it was stated in answer to the question that the action to be taken by the Security Council was permissive rather than obligatory and that the addition of the aforementioned phrase merely made clearer the discretionary power of the Security Council.
The principles of pacta sunt sevanda and good faith were discussed by Suganami[16] when he quoted the provision of Article 26 of the Vienna Convention on the Law of Treaties which states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. The inadequacy of this measure in ensuring compliance could be seen later in this work.
In this vein, Philippe Couvreur[17] stated that the obligations to comply with the Court and arbitrator decisions derives its validity directly and exclusively from the norm of pacta sunt servanda. In the view of Couvreur, only the principal implication derived from the compromise between the two parties to the dispute was of significant interest. On the issue of enforcement of the judgment by the ICJ itself, Resonne[18] stated that the possibility of instituting a new proceedings dealing with the implementation and the enforcement of the Court at the post-adjudicative stage is clarification of the law. Thus, ICJ decision is contemplated under this heading since the issue of non-compliance is an international wrongdoing, but this can be seen as not being true when viewed alongside the jurisdiction of domestic Courts in terms of enforcement provisos of the ICJ judgment. It was the position of Mosler and Oellers-Frahm[19]that as far as Article 94(1) of the UN Charter is concerned judiciaries of the state parties are not directly obliged to enforce the ICJ judgment but could only do so if it can be shown that a direct obligation is provided for in the Constitutional Law of the state party.
This study sees this view as too strict when considered alongside Article 4(1) which deals with the responsibility of states for international wrongful acts. On the enforcement of the ICJ judgment through the organs of the UN, Schacter[20] rightly pointed out that the wordings of Article 94(2) did not give the Security Council alone, the exclusive power to enforce the decision of the Court. Thus, it is an agreed position that the Security Council is not exclusive though it could be seen that the Security Council is much more powerful than the Court.
Further, with respect to the issue of enforcement through regional organizations and specialized agencies, section 57(1) of the UN Charter, states that the various specialized agencies established by inter-governmental agreements and having wide international responsibilities as defined in their basic instruments in economic, social, cultural, educational health and related fields shall be brought into relationship with the United Nations in accordance with the provisions of Article 63 but how effective this method of enforcement will be, ultimately depends on each particular case of enforcement.
In furtherance of the foregoing and in order to resolve crucial issues arising from this investigation, the study shall deduce and make inferences to the views and arguments of these authors whose works have received adequate attention in the course of the study.
[1]Certain similarities and dissimilarities exist between the PCIJ and the ICJ. It should be noted that the Statute of the Permanent Court of International Justice was an international treaty concluded in Geneva on 13th, December 1920 by representatives of 46 states, most of which came from the Allied Powers of the First World War. It was registered in League of Nations Treaty Series on October 8, 1921 and brought the PCIJ into existence at The Hague, Netherland, pursuant to Article 14 of the Covenant of the League of Nations on the 28th April, 1919.
However, the operation of this court was affected when Germany and Japan indicated their interest to withdraw from the League of Nations. This resulted in Germany’s withdrawal from two pending cases before the Court and subsequently invaded the Netherlands during the Second World War. This disrupted the Court’s operation as all diplomatic ties were severed from the Netherlands and Consular officers were recalled. Further, upon the abolition of the League of Nations and subsequent replacement with the United Nations, the PCIJ was also replaced with the International Court of Justice, which commenced operation with most of the Judges of the PCIJ. It should be noted that while the PCIJ Statute was made of 64 Articles with limited jurisdictions, the coming into force of the ICJ required expanded jurisdiction to take care of the fallouts of states relationships of the Second World War as reflected in Article 36 of the ICJ Statute.
[2]Its critical roles in the fulfillment of the purpose and objectives of the UN that is, to bring about development by peaceful means and in conformity with the principles of justice and international law, and further, Article 1 of the UN Charter states that “adjustment or settlement of international disputes or situations which might lead to a breach of the peace”. Thus, the Court was designed to settle legal disputes submitted to it by States (these are brought by appropriate means of contentious procedure). The Court also gives advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies (this is called the advisory procedure). The sum total of the foregoing is that the Court function in accordance with its Statute which forms an integral part of the Charter (Art. 92, UN Charter)
[3]The Five Permanent Members of the United Nations includes: China, France, Russian Federation, the United Kingdom, and the United States. However, there are ten non-permanent members elected for two-year terms by the General Assembly: the details of the current non-permanent members and their end of term dates are as follows: Angola (2016), Egypt (2017), Japan (2017), Malaysia (2016), New Zealand (2016), Senegal (2017), Spain (2016), Ukraine (2017), Uruguay (2017), Venezuela (Bolivarian Republic of) (2016). More details of the functioning of these members could be found at http://www.un.org/en/sc/members/. Visited on 18/03/2016
[4]The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland-Albania) arose from incidents that occurred on October 22nd, 1946, in the Corfu Strait: two British destroyers struck mines in Albanian waters and suffered damage, including serious loss of life. The United Kingdom first seized the Security Council of the United Nations which, by a Resolution of April 9th, 1947, recommended the two Governments to submit the dispute to the Court. The United Kingdom accordingly submitted an Application which, after an objection to its admissibility had been raised by Albania, was the subject of a Judgment, dated March 25th, 1948, in which the Court declared that it possessed jurisdiction. On the same day the two Parties concluded a Special Agreement asking the Court to give judgment on the following questions. Only one aspect of the first question – Is Albania responsible for the explosions? – is relevant for our purposes here.
In its Judgment the Court declared on the first question, by 11 votes against 5, that Albania was responsible. The facts are as follows. On October 22nd, 1946, two British cruisers and two destroyers, coming from the south, entered the North Corfu Strait. The channel they were following, which was in Albanian waters, was regarded as safe: it had been swept in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when off Saranda, struck a mine and was gravely damaged. The other destroyer, the Volage, was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. Forty-five British officers and sailors lost their lives, and forty-two others were wounded.
In these circumstances, the question arose as to the legal basis of Albania's responsibility? The Court did not see the need to pay serious attention to the suggestion that Albania herself laid the mines: that suggestion was only put forward pro memoria, without evidence in support, and could not be reconciled with the undisputed fact that, on the whole Albanian littoral, there are only a few launches and motor boats. But the United Kingdom also alleged the connivance of Albania: that the mine laying had been carried out by two Yugoslav warships by the request of Albania, or with her acquiescence. The Court found that this collusion has not been proved. A charge of such exceptional gravity against a State would require a degree of certainty that has not been reached here, and the origin of the mines laid in Albanian territorial waters remains a matter for conjecture since the United Kingdom did not produce material evidence to support her assertions. In view of the weakness of this assertion, the United Kingdom also argued that, whoever might be the authors of the mine-laying, it could not have been effected without Albania's knowledge.
True, the mere fact that mines were laid in Albanian waters neither involves prima facie responsibility nor does it shift the burden of proof. On the other hand, the exclusive control exercised by a State within its frontiers may make it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be accorded special weight when based on a series of facts, linked together and leading logically to a single conclusion that must be complied with.
[5]In view of the foregoing, the Court found that the presence of the mines was within the knowledge of Albania as canvassed by the United Kingdom and then proceeded to determine Albania’s obligations in light of this knowledge:
“…….The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VTII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war ; the principle of the freedom of maritime communication ; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. In fact, Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching.
The Court then concluded that Albania had sufficient time to notify the ships of the existence of mines, and finds that, even if the mines had been laid at the last possible moment, in the night of October 21st-22nd, the Albanian authorities could still have warned ships approaching the danger zone. The Court further found that, there was an interval of two hours between when the British ships were reported by a look-out post and the time of the first explosion.
Secondly upon arrival of the second ship to tow the damaged ship, Albania still did not take steps to warn of presence of a second mine. Since no warnings were given, and the Court held that the omission involve international responsibility on Albania for the explosions, and the damage and loss of human life to which they gave rise. (See http://www.icj-cij.org/docket/files/1/1647.pdf visited on 10th April 2014). The overall finding of the case support the international law position that, “Every state has an obligation not to knowingly allow its territory to be used for acts contrary to the rights of other states”. (See: http://www. Law school case briefs. net/2012/04/corfu-channel-case-united-kingdom-v.html# sthash.SkBoISWk.dpu f- visited on the 10th April, 2014).
[6] Pursuant to the award from the ICJ, the Albanian Government refused to pay the reparations ordered by the Court and there was no means of enforcement that the British Government could deploy. In order to compel performance the British Government withheld 1574 kilograms of gold belonging to Albania, intending to use this means to extract compliance with the ICJ judgment. As would be recalled, this gold was looted by the Axis powers from Albania during World War II, and was stored in the vaults of the Bank of England. The US-UK-France tripartite commission in 1948 awarded this gold to the Albanians after it was retrieved by the Allies. With the end of the Cold War, the People’s Socialist Republic of Albania ceased to exist in 1991.
Diplomatic relations between the two countries were established on 29 May 1991. Soon after, on the 8th of May 1992, Britain and Albania announced that they had come to an agreement over the Corfu Channel case, jointly announcing that “Both sides expressed their regret at the Corfu Channel incident of 22 October 1946”. Only in 1996 following lengthy negotiations was the gold finally returned to Albania after it agreed to pay US $2,000,000 in delayed reparation, instead of £843,947 or US $2,009,437 awarded to the United Kingdom in December 1949. (Seehttp://www.austlii.edu.au/au/ journals/ AJLH/2005/3.H tml. Visited 10th April, 2014).
It thus could be seen that Albanian compliance was based on a post judgment settlement which more or less was the result of a political trade-off between the parties instead of direct compliance with the decision of the Court. In the view of this study, this act constitute a negotiated compliance, which although is a measure of responsibility, does not effectuate the judgment of Court.
The United Kingdom v. Iran brought to fore the effect of jurisdiction when it has to do with compliance with the judgments of the ICJ. A brief summary of the decision in this case indicates that upon nationalization of the Anglo-Iranian Oil Company by Mohamed Mossadegh, the Iranian Prime Minister in 1951, the United Kingdom proceeded to the ICJ, where Iran contested the jurisdiction of the ICJ to hear and determine a matter outside its compulsory jurisdiction; stating that the transaction resulting in the dispute was not between Iran and the United Kingdom as per the performance of obligations under a ratified Treaty; but a concessionary contract between Iran and Anglo-Iran Oil Company. However, The United Kingdom pushed for interim measures of protection under Article 61(2) of the Rules of Court, which states as follows:
A request for the indication of interim measures of protection shall have priority over all other cases. The decision thereon shall be treated as a matter of urgency”.
The contention of the United Kingdom was that the Court has jurisdiction and under that jurisdiction can invoke Articles 61(2) and 41 to compel Iran to revert its action. This was put to vote and an eight–two split among the judges resulted, which Iran refused to comply with and the United Kingdom could not enforce; (See http://digitalcommons.law. wustl.edu/cgi/view content. Visited on the 14th April, 2014) but rather plotted an over throw of the Government in August 1953. (See S. R. Ward, Immortal: A Military History of Iran and Its Armed Forces. Georgetown University Press. (2009), pp. 189-192
[7]In order to contest the Court’s jurisdiction, France filed a lengthy note which inter alia contained some of the arguments it would probably have used before the Court. First, it contested the idea that carrying out atmospheric nuclear tests was by itself unlawful. It had not ratified any of the test-ban treaties and contested the claims of the existence of a rule of general international law in that sense. Thus, after filing of this protest, France withdrew from the Court’s proceeding and the Court proceeded in abstantia of France and granted the request for provisional measures. In defiance in not complying with the Court’s order, France went ahead with underground nuclear testing which forced a situation of helplessness on the Court, which in its final judgement stated that:
“no further pronouncement is required in the present case. It does not enter into the adjudicatory functions of the Court to deal with issues in abstracto, once it has reached the conclusion that the merits of the case no longer fall to be determined. The object of the claim having clearly disappeared, there is nothing on which to give judgment”.
(See http://classes.lls.edu/spring2007/intlenviron-romano/documents/Nucleartests. visited on the 14th April, 2014)
[8]The Court awarded reparations in favour of Nicaragua; however, the US rejected the jurisdiction of the Court after which it refused to participate in the proceedings of the Court; it also refused to comply with the decision of Court and used its position at the Security Council of the UN to frustrate the enforcement of the judgement until 1992 when Nicaragua repealed the law that required the Country to seek compensation and based on this repeal, withdrew its complaints. (See http://en.wikipedia.org/wiki/Nicaragua_v._United_States. visited 14th April, 2014).
[9]There is the need to emphasize that the International Court of Justice being referred to as “a toothless bull dog” is not a good reference to such an important organ of the United Nations.
[10]Resolution 47/120 of the United Nations General Assembly popularly referred to as the Agenda for Peace, created an opportunity for developing nations to be cautious of the developed nations in the sense that such early peaceful resolution as canvassed in Article 1(1) and (5) could be seen as preemptive measures for which the developed nations may have upper hand in the dispute settlement process. Thus Article 1(1) and (5) is reproduced below:
Peaceful Settlement of Disputes -Emphasizing the need to promote the peaceful settlement of disputes,
- Invites Member States to seek solutions to their disputes at a nearly stage through such peaceful means as provided for in the Charter of the United Nations;
- Encourages the Secretary-General and the Security Council to engage at an early stage in close and continuous consultation in order to develop, on a case-by-case basis, an appropriate strategy for the peaceful settlement of specific disputes, including the participation of other organs, organizations and agencies of the United Nations system, as well as regional arrangements and organizations as appropriate, and invites the Secretary-General to report to the General Assembly on such consultations; (Source: http://www1.umn.edu/humanrts/resolutions/47/120GA1992.html. visited 16th April, 2014
[11]G. Fitzmaurice, “The Foundations of the Authority of International Law and the Problem of Enforcement” 19 MLR (1956) pp. 1-13, A.Tanzi, “Problems of Enforcement of Decisions of the International Court of Justice and the Law of United Nations”, 6 EJIL (1995) pp. 539-572, R. Wolfrum, “Implementation of Decisions of International Courts”. In M. H. Nordquist, & J. N. Moore, “Current Maritime Environmental Issues and International Tribunals for the Law of the Sea”, (Kluwer International Law, 2001) pp. 103-112 at p. 103. Also, O. K. Moravesik and A.M Slaughter, in “Legalized Dispute Resolution, Interstate and Transnational” 54. I.O (2000) pp 457-488 at p.466 stated that:
“implementation and compliance in international disputes are problematic to a far greater degree than they are in well functioning domestic rule of law systems”.
[12]Aloysius P. Llamzon: Jurisdiction and Compliance in Recent Decisions of the International Court of Justice; The European Journal of International Law; EJIL (2007), Vol. 18 No. 5, 815−852. Dr. Llamzon’s observations and tribute to Judge Shigeru Oda was on the basis of Judge Oda’s in-depth knowledge of the operations of the ICJ. It should be noted that, Judge Shigeru Oda was a member of the ICJ for over a quarter of a century, having been elected as Judge in 1976 and re-elected twice more and retired in 2003. Notably, Judge Oda’s personal judicial experience is the largest in the history of the PCIJ and the ICJ. In addition, Dr. Llamzon further found that, Judge Shigeru Oda,in 2000 talked about the extent of Enforcement of the ICJ judgements and observed that;
‘I am of the view that not a great deal can be expected in terms of meaningful development of the international judiciary from such an appeal … unless the parties in dispute in each individual case are genuinely willing to obtain a settlement from the Court. I wonder whether it is likely, or even possible, that States will one day be able to bring their disputes to the Court in a spirit of true willingness to settle them’.
[13]Also, Prof. Reisman, W.M.in his work on ‘Judge Shigeru Oda: A Tribute to an International Treasure’, 16 Leiden J Int’l L (2003) 57, at 65, agreed with Dr. Llamzon’s views. This implies that Judge Oda’s pessimism stemmed from a belief that cases unilaterally instituted by Applicant States through the Court’s compulsory jurisdiction usually resulted in vehement objection by the Respondent States, which would then result in noncompliance with the final judgment. Defiance of ICJ judgments, in turn, would have a corrosive effect both on the ICJ itself and upon broader efforts to institute meaningful settlement of international incidents through adjudicatory means. In Armed Activities on the Territory of the Congo (DRC v. Uganda) , Judge Oda warned that ‘the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubts as to the judicial role to be played by the Court in the international community’. Conversely, he believed that cases instituted by special agreement, where the states party agreed to have the ICJ adjudicate over that specific dispute, would readily be complied with.(Sourced from http://www.ejil.org/pdfs/18/5/250.pdf. and visited on the 16th April, 2014).
Thus in the line of the foregoing reasoning, Atilla Tanzi observed that:
‘In order to meet such needs the Charter has avoided putting the Security Council under the judicial authority of the Court and has provided the Permanent Members of the Council with the right to veto any decision, or even recommendation, concerning ‘action with respect to threats to the peace, breaches of the peace, and acts of aggression', especially so, if any of them was allegedly responsible for the existence of such a situation. Accordingly, when the Council was asked to take action under Article 94(2) against one of its Permanent Members for non-compliance with a Court decision in a case involving the use of force it was blocked by the veto of the defaulting Permanent Member.’ (at pp. 572)
