CHAPTER ONE
INTRODUCTION
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 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.
1.6 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.
1.7 Scope of the Study
The scope of this study is divided into the following:
Geographical Scope: This study covers the international community perceptions with respect to the relative judgment compliance or enforcement mechanism of the judicial pronouncements of the ICJ. This focus is with regard to the conduct of state parties to the judicial proceedings in addition to legitimate interveners, regional organizations and international institutions. Thus, the study encapsulated the dispositions and orientations of these demographics with respect to judgment enforcement mechanism of the ICJ.
Time Scope: The study takes into account the all-time attitude of the ICJ with respect to the post-adjudication proclivities of state parties. This implies that the study covers the approach of the Court with respect to its judgments beginning from its inaugural sitting on the 15th of February 1922 to present day realities. Examination of the non-compliance and enforcement of the Court’s decisions within the stated period is a crucial concern of this study.
Subject Matter Scope: It is imperative to point that most of the United Nations member states have not appeared before the Court on account of the fact that there has not been issues bordering on the subject matters for which the Court is competent to adjudicate on. This study in view of that situation only considers the attitudes of state parties whose cases based on their varying subject matters have been admitted and have received judicial pronouncements for which their non-compliance have resulted in various enforcement contemplations and actions. Thus, the reasons proffered by such nation states with respect to their non-compliance are considered in relation to statutory provisions empowering the Court to adjudicate over such issues.
Jurisdictional Scope:Since the scope of this work covers the issue of subject matters before the ICJ, then, the Courts jurisdiction is significantly determined by the subject matter of the contentions between the state parties. The implication of this aspect of the study is to establish the nexus between the subject matter of adjudication and the Court’s jurisdiction; as to consider the propriety of non-compliance or disobedience to such decisions. In all, the overall possibility of judgment enforcement in the face of non-compliance links the identified aspects of the scope of this study together to show the extent of effectiveness of the Court.
1.8 Organization of the Study
The work examined the historical background of the Permanent Court of International Justice and in that vein tried to see what brought about the establishment of the said Court which was previously abbreviated as “P.C.I.J.” Further, the work also looked at the history of the International Court of Justice; notwithstanding that it was the Permanent Court of International Justice that later metamorphosed into the International Court of Justice (I.C.J); otherwise known as the “World Court”[21]. The reason being that without the knowledge of the historical background of both the Permanent Court of International Justice and also the International Court of Justice, it will not give enough room to appreciate whether the “World Court” decisions are efficient and effective or not.
The fact remains that there is no gainsaying that for a court to be able to sit perfectly in adjudicating disputes; such a court must be properly composed of men of integrity, qualified personnel and therefore, the composition of the International Court of Justice was discussed as required, touching on the statute dealing with its composition in order to appreciate how the International Court of Justice work. It is interesting to note that its jurisprudence and borderless jurisdiction in matters affecting nation states and individuals seeking its decisions are some of the hallmarks of its operations.
Thus, this work gave a good description in this regard to the extent that any one reading this work would gain tremendous knowledge, as if he or she is present at the “Hague” in one of the Court’s sittings. As part of Chapter 1, it discussed about the work generally which includes background of the study, statement of the problem, literature review, research questions, objectives of the study, methodology and scope of study. All these are part of chapter 1 of this work.
Chapter 2 deals with the obligation of compliance and in relation to the decisions of International Court of Justice as provided for under Article 94(1) of the United Nations Charter vis-à-vis Articles 59 and 60 of the I.C.J statutes.Therefore, under this chapter, attention was given to Article 94(1) of the United Nations Charter especially the principle of “PactaSuntServanda and Good Faith, Resolution 9 of the Security Council in 1946, formation of Special Agreements, the Court’s Jurisprudence, and obligations of compliance, the rule of PactaSuntServanda, especially the exceptions to the rule, responsibility and state necessity among others.
Still under this chapter, Articles 59 and 60 of the Statute of the International Court of Justice[22] were scrutinized with references to the basis of the application of res-judicata, intervention under the ICJ statute[23] and the principle of res-judicata and legal obligation derived from same.Chapter 3, focus attention on the enforcement of the decisions of the International Court of Justice which are done personally by the court.Care was taken to show the way the Court assess the enforcement of its decisions under the ICJ statute[24]vis-à-vis the ICJ rules and enforcement[25]on the basis of avoidance of jurisdiction. In order to properly appreciate this topic, since it has to do with enforcement of ICJ decisions, enforcement on the basis of Article 60 and 61(3) of the ICJ statute including Article 99(5) of the ICJ rules were all analyzed.
In chapter 4, the discussion has to do with domestic courts in other countries enforcing the decisions of the International Court of Justice. In this chapter, non-applicability of domestic law, acts of the judiciary, decisions creditor enforcement, and the case of SociéteCommerciale de Belgique, were all discussed.Also, under this chapter, there was a discussion of the position of the decisions debtor enforcement committee of United States Citizens living in Nicaragua v. Reagan case, Republic of Paraguay et al v. Gilmore III et al; Beard v. Greene, Fed. Republic of Germany et al v. United States et al, Modejv.Schoming case (2002), domestic enforcement through Courts of third states, the duty to co-operate, International Criminal Courts practices and necessary judicial assistance.
In chapter 5, the work took a different approach because what we discussed here is the enforcements of decisions of International Court of Justice through organs of United Nations. The enforcement of decisions through the United Nations organs, the Security Council itself was discussed especially Article 94(2) of the UN Charter, the Security Council power to review the International Court of Justice decisions, the position of the General Assembly and its power to review decisions of ICJ, the power of the Secretary General and their effectiveness, all form the basis of this chapter.It should be understood that the discussion under this chapter is necessary in order to assess how much of the work of the International Court of Justice are being handled by the Security Council and the General Assembly of the United Nations, thus rendering the powers, decisions and respect in terms of enforcement of the ICJ decisions effective or less effective. Findings in this study will show that the general approach is to see whether the enforcement of the decisionvis-à-vis its effectiveness or otherwise makes the ICJ.” (World Court), “a toothless bull dog or not”.
Chapter 6 deals with the enforcement of the International Court of Justice decisions through regional international organizations vis-à-vis international specialized agencies. Therefore, this chapter dealt with the issue of United Nations and relationship with regional organizations, regional arrangements and in the UN Charter, Article 53 of the UN Charter and enforcement, international regional organizations enforcement of ICJ decisions, League of Arab States, and organization of American States.In addition and for the purpose of in-depth analysis of this sub-topic, it looked at the European Countries and European Union actions, the Council of Europe, Organization of African Unity (OAU) now African Union (AU), the organization of Islamic Conference (O.I.C.) especially as it concerns the decisions of the International Court of Justice.Still under this chapter, there was the need to put more issues into consideration which led to the position and operations of international specialized agencies as it concerns the decisions of the International Court of Justice. Therefore, it assessed the positions of International Civil Aviation Organization, International Monetary Fund, International Atomic Energy Agency and other international agencies.
Chapter 7 is a summation of the work itself. In other words, this chapter includes: conclusion and recommendations. In a nut-shell, the study seeks to ascertain if the decisions delivered by the International Court of justice are effective in terms of implication and implementation and to appraise the extent of acceptability and or compliance. In order words, it tries to find out if the if the decisions of the ICJ are automatically binding on the United Nations as represented by the Security Council and the General Assembly. Decisions of the ICJ needs to be binding on the UN in order to maintain “real separation” of powers with the three (3) arms of Government of the United Nations just as other Courts of law have functioned all over the world domestically and even as complementary of foreign decisions.
This can only be done by serious pressure to amend the United Nations Charter. This work tries to proffer solutions to the position of the International Court of Justice as “a toothless bull dog” and by its recommendations, reposition the Court for better effectiveness in discharge of its duties.[26]
[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).
[14]Attila Tanzi; Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations. EJIL Vol. 6 (1995) 539-572 found at http://www.ejil.org/pdfs/6/1/1311.pdf. Visited 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)
[15]United Nations Conference of International Organization (UNCIO) Vol. 13 at p. 453
[16]H. Suganami, Why Ought Treaties to be Kept? 33 (BWA)(1979) p. 243-256 at p. 243
[17]P. Coureur, The effectiveness of the International Court of Justice in Peaceful Settlement of International Disputes in Muller A. S. D. Rale, & J. M. Thuransky, (eds), The International Court of Justice, its future after fifty years (Martins Jijhoff (1997) pp 83-116 at p. 105
[18]S. Rosenne, and Y. Ronen, The Law and Practice of International Court 1920-2005, 4th edition (Martinus Nijhoff; 4th edition (April 1, 2006)),
[19]H. Mosler and K. Oellers-Frahm, Article 94 in Simma, B, et al (eds), The Charter of the United Nations (Oxford Univ. Press 2002) pp. 1127-1179 at 1176. In support of Mosler & Oellers-Frahm submissions, the contention that the Court’s powers are fettered by reason of Article 94(2) is not only critical to the enforcement of ICJ decisions but could be seen as a negation proviso when comparatively viewed within the context of the meaning of the extended interpretation of Article 94(1). It is further reproduced below for the purpose of this comparison.
Article 94(1.) Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
(2.) If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. (Source: http://www.un.org/en/documents/charter/chapter14.shtml. visited 16th April, 2014)
[20]O.Schacter, “The Enforcement of International Judicial and Arbitral Decisions” 54 AJIL (1960)
[21]J. L. Brierly, The Outlook for International Law, Oxford University Press, (1944) pp. 120-121
[22]These are very important statute of the I.C.J. upon this actually dealt with.
[23]Article 62 of the I.C.J. Statute
[24]Article 41 of the I.C.J. Statute
[25]Article 78 of the I.C.J. Statute
[26]The illustration in this context is used to describe the problems faced by the ICJ in enforcement of its judgements
