What happens if a party to a case disregard the decision of the International Court of Justice?
I. Introduction
II. Determining the existence and content of the dispute
II.A. The Marshall Islands Cases and the new requirements for the existence of a dispute
II.B. Consistency of the Court’s approach with previous case law
‘the existence of a Convention dispute must be sufficiently clear to enable the other party to appreciate that a claim is being made against it regarding the interpretation or application of the Convention […] That is far from being an exacting requirement but it is an important one, especially in the context of a provision like Article 22 of CERD, which refers to more than one method of dispute settlement. A State cannot be expected to attempt to negotiate a dispute if no steps have been taken to make it aware that it might be a party to such a dispute’.[29] Show
‘Article 23 […] does not stipulate that diplomatic negotiations must first of all be tried; nor does it lay down that a special procedure of the kind provided for in Article 2, No. 1, must precede reference to the Court. A comparison, therefore, between the various clauses of the Geneva Convention dealing with the settlement of disputes shows that under Article 23 recourse may be had to the Court as soon as one of the Parties considers that a difference of opinion arising out of the construction and application of Articles 6 to 22 exists. […] Even if, under Article 23, the existence of a definite dispute were necessary, this condition could at any time be fulfilled by means of unilateral action on the part of the applicant Party. And the Court cannot allow itself to be hampered by a mere defect of form, the removal of which depends solely on the Party concerned’.[32]
‘Under either the Treaty of 1931 or the declarations of adherence to the Optional Clause, it rested with the Belgian Government to prove that, before the filing of the Application, a dispute had arisen between the Governments respecting the Bulgarian law of February 3rd, 1936. The Court holds that the Belgian Government has not established the existence of such a dispute and accordingly declares that the Belgian Application cannot be entertained in so far as concerns that part of the claim relating to this law’.[33]
‘why it is doubtful whether the accumulated case law offers any clear guidance on how this [the determination of the critical date] is done […] is the equally artificial nature of the endeavour to relate such a dispute, or the situations and facts out of which such a dispute arose, to an arbitrarily fixed date, which may even be the product of circumstances completely unrelated to the case before the Court’.[43]
II.C. The determination of the existence of a dispute by arbitral tribunals
‘When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means’.
III. Legal implications of the new approach regarding the existence of a dispute
III.A. Consistency with existing procedural safeguards and general principles
‘to react is more properly addressed as a question of procedural due process rather than as an element of the dispute criterion. If a party is embarrassed by hearing for the first time, through the commencement of Court proceedings, a claim against it, it is surely open to the Court to address that matter by recourse to the rules of procedure’.[61]
‘What matters is that, at the latest by the date when the Court decides on its jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings in which the initially unmet condition would be fulfilled. In such a situation, it is not in the interests of the sound administration of justice to compel the applicant to begin the proceedings anew – or to initiate fresh proceedings – and it is preferable, except in special circumstances, to conclude that the condition has, from that point on, been fulfilled’.[66]
III.B. Spillover effects
‘If it is permitted by the Court to become a party to the proceedings, the intervening State may ask for rights of its own to be recognized by the Court in its future decision, which would be binding for that State in respect of those aspects for which intervention was granted, pursuant to Article 59 of the Statute’.[76]
‘considerable care is required before inferring from votes cast on resolutions before political organs such as the General Assembly conclusions as to the existence or not of a legal dispute on some issue covered by a resolution. The wording of a resolution, and votes or patterns of voting on resolutions of the same subject-matter, may constitute relevant evidence of the existence of a legal dispute in some circumstances, particularly where statements were made by way of explanation of vote. However, some resolutions contain a large number of different propositions; a State’s vote on such resolutions cannot by itself be taken as indicative of the position of that State on each and every proposition within that resolution, let alone of the existence of a legal dispute between that State and another State regarding one of those propositions’.[77]
III.C. The purpose of the existence-of-the-dispute requirement and the ICJ judicial function
‘any claim or dispute in respect of which the claim or dispute in question has not been notified to the United Kingdom by the State or States concerned in writing, including of an intention to submit the claim or dispute to the Court failing an amicable settlement, at least six months in advance of the submission of the claim or dispute to the Court’.[90]
IV. Concluding remarks
* Associate Professor in International Law, Sapienza University of Rome. [1] Nuclear Tests (Australia v France, New Zealand v France) Judgment [1974] ICJ Rep 253, para 55. [2] Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom, Marshall Islands v India, Marshall Islands v Pakistan) (Preliminary Objections) ICJ Judgment 5 October 2016, nyr (hereafter Marshall Islands v United Kingdom). [3] South West Africa (Ethiopia v South Africa, Liberia v South Africa) (Preliminary Objections) Judgment [1962] ICJ Rep 328. [4] Nuclear Tests (n 1). [5] Art VI of the NPT provides: ‘Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.’ [6] Marshall Islands v United Kingdom (n 2) para 46. [7] ibid ICJ Application Instituting Proceedings (24 April 2014) paras 15-16 [8] Marshall Islands v United Kingdom (n 2) para 27. [9] ibid paras 37-39. [10] ibid para 41. [11] See ibid in particular the dissenting opinion of Judge Yusuf, paras 21-22. For example, the various contributions to the AJIL Unbound Symposium on the Marshall Islands case do all agree in that regard: [12] Marshall Islands v United Kingdom (n 2) paras 49-51. [13] ibid para 42. [14] It would suffice to add to the minority judges, those of the majority having stated in their separate opinions that a dispute undeniably existed when the parties set forward their views before the Court. See in particular, ibid the opinions of Judge Bhandari, para 13; Judge Gaja; Judge Owada, para 21; and Judge Xue, para 16. [15] Marshall Islands v United Kingdom (n 2) para 54. [16] ibid para 57. [17] For further analysis in that regard see BI Bonafé, ‘La Cour internationale de Justice et la notion de différend’ [2016] Ordine Internazionale e Diritti Umani 924 [18] Marshall Islands v United Kingdom (n 2) para 43. [19] Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (Preliminary Objections) ICJ Judgment 17 March 2016, nyr, para 72. [20] S Rosenne, Law and Practice of the International Court 1920-2005, vol 2 (4th edn, Martinus Nijhoff 2006) 508. [21] Alleged Violations of Sovereign Rights (n 19) para 71-73. [22] Marshall Islands v United Kingdom (n 2) para 41. [23] Alleged Violations of Sovereign Rights (n 19) para 56. [24] ibid para 73. [25] ibid paras 50-52. [26] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) Judgment [2011] ICJ Rep 70. [27] ibid paras 29-30. [28] In the French version of the judgment references to the ‘connaissance’ of the respondent are to be found in paras 61, 87 and 104, whereas in the English version the only reference to the ‘awareness’ of the respondent is in para 87. This might confirm that for the Court in 2011 such awareness was not so essential in the determination of the existence of a dispute between the parties. [29] Application of the International Convention on the Elimination of All Forms of Racial Discrimination (n 26) Separate Opinion of Judge Greenwood, para 9. [30] See eg Marshall Islands v United Kingdom (n 2) opinions of Judges Owada (para 4), Sebutinde (para 21), and Yusuf (para 28). According to this notion, originally advanced by Judge Morelli, ‘The opposing attitudes of the parties […] may respectively consist of the manifestations of the will by which each of the parties requires that is own interest be realized. It is the case of a dispute resulting, on one side, from a claim by one of the parties and, on the other side, of the contesting of that claim by the other party. But it may also be that one of the opposing attitudes of the parties consists, not of a manifestation of the will, but rather of a course of conduct by means of which the party pursuing that course directly achieves its own interest. This is the case of a claim which is followed not by the contesting of the claim but by the adoption of a course of conduct by the other party inconsistent with the claim. And this is the case too where there is in the first place a course of conduct by one of the parties to achieve its own interest, which the other party meets by a protest.’ (South West Africa (n 3) Dissenting Opinion of Judge Morelli 567). [31] Marshall Islands v United Kingdom (n 2) para 38. [32] Certain Polish Interests in Polish Upper Silesia (Germany v Poland) PCIJ Rep Series A No 6, 14 (emphasis added). [33] The Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (Preliminary Objection) PCIJ Rep Series A/B No 77, 83 (emphasis added). [34] Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) Judgment [2012] ICJ Rep 422, paras 54-55. [35] C Gray, ‘Current Developments’ (2017) 111 AJIL 423. [36] Marshall Islands v United Kingdom (n 2) para 43. [37] R Lavalle, ‘The Notion of International Legal Dispute and the Assumption of Jurisdiction by the International Court of Justice in the Hostages Case’ (1982-83) 35-36 Revue Hellénique de Droit International 99. [38] See also for instance Fisheries Jurisdiction (Spain v Canada) (Jurisdiction of the Court) Judgment [1998] ICJ Rep 432, para 33, where the Court had ascertained the existence of ‘the dispute between Spain and Canada taking account of Spain’s Application as well as the various written and oral pleadings placed before the Court by the parties’. [39] Marshall Islands v United Kingdom (n 2) para 54. [40] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) Judgment [1996] ICJ Rep 595, para 28. [41] Marshall Islands v United Kingdom (n 2) para 54. [42] ibid (emphasis added). [43] S Rosenne (n 20) 511-512. [44] This statement (‘in principle, …’) is consistently repeated in the Court’s case law. See in particular Georgia v Russia (n 26) para 30, Nicaragua v Colombia (n 19) para 52, Marshall Islands v United Kingdom (n 2) para 42 and even more recently Immunities and Criminal Proceedings (Equatorial Guinea v France) (Request for the Indication of Provisional Measures) Order 7 December 2016 nyr, para 37. [45] Marshall Islands v United Kingdom (n 2) para 43. [46] See in particular ibid, declaration of Judge Xue (para 6) and UK Preliminary
Objections (15 June 2015) para 5 [47] In the Matter of the Chagos Marine Protection Area Arbitration (Mauritius v United Kingdom) Award 18 March 2015 [48] ibid para 208. [49] ibid para 211. [50] ibid paras 213-221. [51] ibid para 382 (emphasis added). [52] South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China) Award on Jurisdiction and Admissibility 29 October 2015 [53] ibid paras 148-150. [54] ibid para 163. [55] ibid para 149. [56] See the various contributions to the AJIL Unbound Symposium on the Marshall Islands case (n 11). See also VJ Proulx, ‘The World Court’s Jurisdictional Formalism and its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes’ (2017) 30 Leiden J Intl L 925. [57] ibid. See also N Krisch, ‘Capitulation in The Hague: The Marshall Islands Cases’ EJIL:Talk! (10 October 2016) [58] For an analysis of the ICJ judges voting patterns see MA Becker, ‘The Dispute that Wasn’t There: Judgments in the Nuclear Disarmament Cases at the International Court of Justice’ (2017) 6 Cambridge Intl L J 4. [59] See in particular I Venzke, ‘Public Interest in the International Court of Justice – A Comparison between Nuclear Arms Race (2016) and South West Africa (1966)’ in AJIL Unbound Symposium on the Marshall Islands case (n 11) 68. [60] Marshall Islands v United Kingdom (n 2) para 43. [61] ibid, Dissenting Opinion of Judge Robinson para 51. [62] See arts 44-68 of the Rules of Court. [63] See art 50 of the ICJ Statute. [64] See arts 62 and 63 of the ICJ Statute. [65] See art 69 of the Rules of Court. [66] Application of the Convention for the prevention and punishment of the crime of genocide (Croatia v Serbia) (Preliminary Objections) Judgment [2008] ICJ Rep 412, para 85. [67] This is arguably for political reasons. It must be recalled that in 2014 when the case was pending the UK amended its optional clause declaration and excluded from the Court’s jurisdiction ‘any claim or dispute which is substantially the same as a claim or dispute previously submitted to the Court by the same or another Party’. However, it does not seem that the institution of fresh proceedings is precluded by this clause. In fact, the Court never ruled on the merits of the Marshall Islands cases. [68] See in that regard Marshall Islands v United Kingdom (n 2) Dissenting Opinion of Judge Cançado Trindade, paras 132-135, and GRB Galindo, ‘On Form, Substance and Equality between States’ in AJIL Unbound Symposium on the Marshall Islands case (n 11) 75. [69] S Lee Meyers, C Sang-Hun, ‘Trump’s ‘Fire and Fury’ Threat Raises Alarm in Asia’ The New York Times (9 August 2017) [70] Corfu Channel (United Kingdom v Albania) Judgment [1949] ICJ Rep 35. [71] Provisional measures proceedings may raise a similar concern as the Court increasingly focuses on the prima facie existence of the dispute at that stage. See for instance the Equatorial Guinea v France case (n 44). [72] S Rosenne (n 20) 1620 ff. [73] Interpretation of Judgments Nos 7 and 8 (Factory at Chorzów) (Germany v Poland) Judgment PCIJ Rep Series A No 13, 10-11: ‘In so far as concerns the word ‘dispute’, the Court observes that, according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court’s view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in ‘regard to the meaning or scope of a judgment of the Court. The Court in this respect recalls the fact that in its Judgment No. 6 (relating to the objection to the jurisdiction raised by Poland in regard to the application made by the German Government under Article 23 of the Geneva Convention concerning Upper Silesia), it expressed the opinion that, the article in question not requiring preliminary diplomatic negotiations as a condition precedent, recourse could be had to the Court as soon as one of the Parties considered that there was a difference of opinion arising out of the interpretation and application of Articles 6 to 22 of the Convention.’ [74] See in particular Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (n 40) para 27. [75] See also Oil Platforms (Iran v United States) (Counter-claims) Order [1998] ICJ Rep 190, paras 32-39; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria) Order [1999] ICJ Rep 983, 985-986; Armed Activities in the Territory of the Congo (Congo v Uganda) Order [2001] ICJ Rep 660, paras 27-44; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Counter-claims) Order [2013] ICJ Rep 200, paras 33-37. [76] Territorial and Maritime Dispute (Nicaragua v Colombia) (Application by Honduras for permission to Intervene) Judgment [2011] ICJ Rep 420, para 29. [77] Marshall Islands v United Kingdom (n 2) para 56. It suffices to recall that the UK had voted against General Assembly Resolution 68/32 of 2013 that called all states to comply with their obligations concerning nuclear disarmament. [78] South West Africa (n 3) 346. [79] See Marshall Islands v United Kingdom (n 2) Separate Opinion of Judge Tomka, para 38. See also Proulx (n 11) 96. [80] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Jurisdiction and Admissibility) Judgment [1984] ICJ Rep 392, para 107-108. [81] United States Diplomatic and Consular Staff in Tehran (United States v Iran) Judgment [1980] ICJ Rep 3, para 36. [82] See eg Ranganathan, ‘Nuclear Weapons and the Court’ in AJIL Unbound Symposium on the Marshall Islands case (n 11) and Venzke (n 59). [83] Case concerning the Northern Cameroons (Cameroon v United Kingdom) (Preliminary Objections) Judgment [1963] ICJ Rep 38. [84] See art 38 para 5 of the Rules of Court. [85] UNGA Res 37/10 ‘Manila Declaration on the Peaceful Settlement of International Disputes’ (15 November 1982) UN Doc A/RES/37/10 para 5. [86] Annuaire de l’Institut de droit international, Session de Grenade, 1956, p. 204. In 1956, the Institut was discussing the adoption of a resolution concerning ‘L’élaboration d’une clause modèle de compétence obligatoire de la Cour internationale de Justice’ and the plenary rejected the proposal to confine the exercise of the contentious jurisdiction of the Court to situations in which the dispute ‘n’a pas pu être réglé par la voie diplomatique’. [87] Case of the Free Zones of Upper Savoy and the District of Gex (France v Switzerland) PCIJ Rep Series A No 22, 13. [88] S Rosenne (n 20) 1153. [89] See Nicaragua v United States (n 80) and accompanying text. [90] The new declaration of the United Kingdom is available on the Court’s website (emphasis added). It also provides that ‘any claim or dispute that arises from or is connected with or related to nuclear disarmament and/or nuclear weapons, unless all of the other nuclear-weapon States Party to the Treaty on the Non-Proliferation of Nuclear Weapons have also consented to the jurisdiction of the Court and are party to the proceedings in question’ shall be excluded from the Court’s jurisdiction. [91] This opinion is shared by a number of judges and commentators. See in particular Becker (n 58) 25, and Proulx (n 79) 100-101. [92] See in particular Case concerning the Northern Cameroons (n 84) 38, and Nuclear Tests (n 1) para 58. For a comment, see Rosenne (n 20) 532-539. Are International Court of Justice decisions binding?The judgment is final, binding on the parties to a case and without appeal (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision). Any judge wishing to do so may append an opinion to the judgment.
Does the International Court of Justice have enforcement powers?The ICJ has no enforcement powers, but if states don't comply, the Security Council, the organ of the UN primarily responsible for maintaining peace and security, may take action.
How do I enforce ICJ Judgement?To enforce an ICJ judgment a party must be able to bring suit. In other words, the party seeking enforcement must have an interest or injury, rising to the level of a case or controversy.
What kind of decisions can the International Court of Justice issue?The Court has a twofold role: to settle, in accordance with international law, legal disputes submitted to it by States (contentious cases) and to give advisory opinions (advisory procedures) on legal questions referred to it by duly authorized United Nations organs and specialized agencies.
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