This article was sent to Khmerization by an anonymous reader.
There is no international enforcement system. Once an ICJ decision is made, there is no automatic "police force" to follow it up. The matter could be referred to the UN Security Council but here it would be vulnerable to the veto system of the five permanent members.
The International Court of Justice (ICJ) handles contentious cases brought to it by countries that have accepted its jurisdiction. Its workload has varied. It was quite busy between 1946 and about 1966. Then its work tailed off in the 1970s. Communist countries and Third World countries boycotted it as a club for rich western countries. Since the late 1980s it has been busier than ever before (and much busier than the PCIJ ever was). Countries have now found greater use of it; ironically about a third of recent cases have been disputes between African countries. As at February 2005, the ICJ had delivered 89 judgements since 1946, dealing with such matters as land frontiers and maritime boundaries, territorial sovereignty, the non‐use of force, non‐interference in the internal affairs of countries, diplomatic relations, hostage‐taking, the right of asylum, nationality, rites of passage and economic rights. The details are on the website: http://www.icj‐cij.org.
There are times when a country finds a use for the ICJ and others when it does not. For example, in the mid‐1970s, Australia led the ICJ case against French nuclear testing in the South Pacific. France said that nuclear testing was a matter of national security and so it did not accept that the ICJ had the right to interfere in its nuclear testing programme. It boycotted the ICJ case brought by Australia. Fiji and New Zealand (although coincidentally it stopped testing in the atmosphere). Currently Australia is embroiled in a dispute with the new country of East Timor dividing up the oil and natural gas resources in the seabed between both countries. On March 22 2002, Australia notified the ICJ that it no longer accepted ICJ’s jurisdiction on maritime boundary disputes and so in effect it will boycott any hearing that East Timor may bring against it. Meanwhile in mid‐2005, with no hint of embarrassment, the same Australian Government announced that it would try to take Japan to the ICJ over its proposed resumption of whaling (which is a major issue of outrage in Australia).
There is no international enforcement system. Once an ICJ decision is made, there is no automatic "police force" to follow it up. The matter could be referred to the UN Security Council but here it would be vulnerable to the veto system of the five permanent members. For example, in the 1980s Nicaragua took the United States to the ICJ over the mining of its harbours. When the US realized that the case was going badly, it walked out of the ICJ and then vetoed attempts by the UN Security Council to enforce the ICJ decision.
There should be a campaign to encourage governments to accept the ICJ's compulsory jurisdiction. This should be part of a general concern by citizens in expecting a better standard of international behaviour from their governments. There needs to be a general monitoring system by NGOs on how governments are living up to ‐ or failing to live up ‐ their international obligations.
By the way, the ICJ’s limitation to affairs between nation‐states is a reason for the creation of the new International Criminal Court (ICC). The ICC hears cases brought against particular individuals accused of committing particular crimes. The ICC, also based in The Hague, is completely separate from the ICJ.
Cambodia's current ICJ's case against Thailand will run into trouble because Thailand had announced that it will not abide by the ICJ's verdict if it loses the case. If Thailand is true to its words, the only option Cambodia has is to apply to the UN Security to enforce this verdict. However, the only concern is that the USA it may veto to save Thailand.
9 comments:
At least if the verdict is in our favor we can shoot the hell Siem out and nobody going to blame us ,It will be very messy .
The ICJ and the Security Council
Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.'s non-compliance with the Court's decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply.
The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, prima facie could not be regarded as appropriate since the action was ordered by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless the Court declared the application admissible in 1998. A decision on the merits has not been given since the parties (United Kingdom, United States and Libya) settled the case out of court in 2003.
1
The ICJ and the Security Council
Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.'s non-compliance with the Court's decision before the Security Council. Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply.
The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, prima facie could not be regarded as appropriate since the action was ordered by the Security Council.
In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless the Court declared the application admissible in 1998.
1
A decision on the merits has not been given since the parties (United Kingdom, United States and Libya) settled the case out of court in 2003.
There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.
Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the Security Council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to impose consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party."
For example, the United States had previously accepted the Court's compulsory jurisdiction upon its creation in 1946, but in Nicaragua v. United States withdrew its acceptance following the Court's judgment in 1984 that called on the U.S. to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. The Court ruled (with only the American judge dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua" and ordered the United States to pay war reparations .
2
Examples of contentious cases include:
A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
A complaint by Pakistan on behalf of the people of Kashmir over oppression against India and charged it with State terrorism directly continuing violations of the international law.
A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.
A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organisation regarding their actions in the Kosovo War. This was denied on 15 December 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application.
Generally, the Court has been most successful resolving border delineation and the use of oceans and waterways. While the Court has, in some instances, resolved claims by one State espoused on behalf of its nationals, the Court has generally refrained from hearing contentious cases that are political in nature, due in part to its lack of enforcement mechanism and its lack of compulsory jurisdiction. The Court has generally found it did not have jurisdiction to hear cases involving the use of force.
3
Law applied
When deciding cases, the Court applies international law as summarised in Article 38 of the ICJ Statute provides that in arriving at its decisions the Court shall apply international conventions, international custom, and the "general principles of law recognized by civilized nations". It may also refer to academic writing ("the teachings of the most highly qualified publicists of the various nations") and previous judicial decisions to help interpret the law, although the Court is not formally bound by its previous decisions under the doctrine of stare decisis. Article 59 makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. The Court's decision binds only the parties to that particular controversy. Under 38(1)(d), however, the Court may consider its own previous decisions. In reality, the ICJ rarely departs from its own previous decisions and treats them as precedent in a way similar to superior courts in common law systems. Additionally, international lawyers commonly operate as though ICJ judgments had precedential value.
If the parties agree, they may also grant the Court the liberty to decide ex aequo et bono ("in justice and fairness"), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. This provision has not been used in the Court's history. So far the International Court of Justice has dealt with about 130 cases.
4
Procedure
The ICJ is vested with the power to make its own rules. Court procedure is set out in Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).
Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant who files a written memorial setting out the basis of the Court's jurisdiction and the merits of its claim. The respondent may accept the Court's jurisdiction and file its own memorial on the merits of the case.
Preliminary objections
A respondent who does not wish to submit to the jurisdiction of the Court may raise Preliminary Objections. Any such objections must be ruled upon before the Court can address the merits of the applicant's claim. Often a separate public hearing is held on the Preliminary Objections and the Court will render a judgment. Respondents normally file Preliminary Objections to the jurisdiction of the Court and/or the admissibility of the case. Inadmissibility refers to a range of arguments about factors the Court should take into account in deciding jurisdiction; for example, that the issue is not justiciable or that it is not a "legal dispute".
In addition, objections may be made because all necessary parties are not before the Court. If the case necessarily requires the Court to rule on the rights and obligations of a state that has not consented to the Court's jurisdiction, the Court will not proceed to issue a judgment on the merits.
5
6
If the Court decides it has jurisdiction and the case is admissible, the respondent will then be required to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are filed, the Court will hold a public hearing on the merits.
Once a case has been filed, any party (but usually the Applicant) may seek an order from the Court to protect the status quo pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctions in United States law. Article 41 of the statute allows the Court to make such orders. The Court must be satisfied to have prima facie jurisdiction to hear the merits of the case before granting provisional measures.
The title of this article should be the "INCAPACITATION OF THE ICJ" rather than the "The Powers of the ICJ".
Post a Comment