Judicial enforcement

As we shall see in Chapter 10, there are various procedures for the settlement of dis­putes by judicial means. As well as ad hoc tribunals, there is the International Court of Justice (ICJ), being the principal judicial organ of the United Nations, and the relatively new International Criminal Court for dealing with serious violations of international law by individuals. Moreover, while a state cannot be compelled to use the ICJ for the resolution of a legal dispute, if a matter is referred to it, its award is binding on the parties and must be carried out. In this sense, the ICJ is primarily concerned with the enforcement of international rights and duties, even though the procedure by which states can be compelled to carry out awards of the Court is limited. Such compulsion is by reference to the Security Council and it suffers from all of the defects associated with that body. The procedure has never yet been suc­cessfully invoked, although the occasions on which resort to the Council is actually needed are relatively few as the majority of ICJ awards are carried out by the parties voluntarily, at least where the Court's jurisdiction was not seriously disputed. Of more general concern, however, is the ICJ decision in the Lockerbie Case (Libyan Arab Jamahiriya v UK and US 1992 ICJ Rep para. 22). In this case, Libya had applied to the Court for the indication of interim measures of protection (similar to tem­porary injunctions) because of alleged threats made by the UK and USA as a response to allegations that Libyan nationals were responsible for the destruction of the air­craft over Lockerbie in 1988. During the hearing of Libya's application, the Security Council adopted enforcement measures and the Court took the view that it was bound to dismiss Libya's claim because of the mandatory Council resolution which decisively characterised Libya's conduct as a threat to international peace (SC Res. 748). This acceptance by the Court of Security Council supremacy in what was clearly a legal dispute, and one that was already before the Court, illustrates very powerfully that matters of legal obligation can become entwined with political necessity in the system of international law. Whether the decision in the Lockerbie Case bodes well for the future of the ICJ as a mechanism for the enforcement of international law remains to be seen, especially if the Court's jurisdiction can be ousted by any reference of a matter to the Council. It is hoped, however, that the Court will not renounce its jurisdiction if the Council is only considering a dispute, as opposed to when it has actually made a concrete determination of the very ques­tion before the Court: see e.g. Judge Lauterpacht's separate opinion in the First Phase of the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) 1993 ICJ Rep 325, and the exercise of jurisdiction in the Congo Case (2000). Fortunately, this latter view seems to be gaining acceptance. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Rep July 2004), the ICJ considered the argument that the General Assembly of the United Nations lacked the power to request an Advisory Opinion on a matter while that issue was being dealt with by the Security Council (see Art. 12(1) UN Charter). This was rejected, one reason being that the mere pres­ence of an item on the Council's agenda did not prevent the Assembly from dealing with an issue that otherwise fell within its responsibilities (see Opinion on the Legal Consequences paras. 27-28). Although the point of contention involved the consti­tutional relationship of the Assembly and the Council, the parallels with the

The nature of international law and the international system

relationship between the Council and the Court are clear and, after all, the Court did not decline to give the Advisory Opinion just because the matter of Israeli/ Palestinian relations was constantly before it. So it may be then, that only if the Security Council has taken concrete measures in respect of a dispute will the Court decline to exercise its jurisdiction - contentious or advisory - over a legal question (see section 10.8.5.11).

A second welcome development is the growth of specialised judicial institutions concerned with discrete issues of international law. The Iran-US Claims Tribunal, charged with unravelling the legal morass left by the ejection of the USA from Iran in 1979, provides a model for the judicial settlement of inter-state disputes and the Ethiopia/Eritrea Claims Commission is operating in much the same way to resolve issues arising from the separation of these two countries. Similarly, the Yugoslavia, Rwanda and Somalia War Crimes Tribunals and the International Criminal Court (ICC) reflect the growing importance of individuals as subjects of international legal disputes. Both the Yugoslavia and the Rwanda Tribunals have tried and con­victed and sentenced individuals, the Somalia tribunal is investigating cases and the Prosecutor of the International Criminal Court is currently investigating three situations and pursuing a number of cases against named persons.

Thirdly, many problems of international law arise in the national courts of states. Usually, this involves a dispute between a state and a private individual but some­times simply between two nationals. In either case, the national court may decide a substantive question of international law, which will then be binding on the par­ties. Moreover, awards of domestic tribunals, even if not voluntarily complied with, may be enforced by the normal enforcement machinery of the national legal sys­tem, subject only to certain immunities which foreign states enjoy (see Chapter 7). Again, in practice, such awards are seldom ignored because of the effect this would have on the relations between the state of jurisdiction and the state against whom the order was made.

Date: 2014-12-21; view: 1116