CRITICAL EXAMINATION OF THE JUDGMENT ENFORCEMENT MECHANISM OF THE INTERNATIONAL COURT OF JUSTICE

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. 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”. 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.

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 has made 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 delivered on 15th day of December1949; but was not complied with by Albania until 1992, after about 40 years of the said judgment.

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).

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 is against their interest. For example, in the Nuclear Test cases of Australia v. France and New Zealand v. France , 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 . 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 un-enforceability 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:

(i) To what extent are the decisions of the International Court of Justice obeyed and enforced?

(ii) What are the effects of non-enforcement of the International Court of Justice decisions?

(iii) 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: –

1. To determine the extent of the obedience and enforcement of compliance with the international court of justice decisions

2. To examine the effects of non-enforcement of the decisions of the international court of justice.

3. 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.