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ICJ STATS – Enforcement of ICJ rulings

United Nations (UN) member countries have the option of submitting cases for final and binding determination to the International Court of Justice (ICJ); but nothing in the UN Charter or the Statutes of the ICJ guarantees any country full enforcement of any ICJ ruling.
 
As we previewed last week, a recent ruling by the ICJ found the United States in breach of both a ruling and an order of the court. However, there was no talk of any power to enforce the ICJ ruling or impose possible sanctions as a result.
 
The issue of enforcing an ICJ ruling is a recurrent subject in international political debate. In this week’s edition of ICJ Stats, we review the question of enforcement—no doubt relevant in the ongoing debate over whether Belizeans should agree that the dispute with Guatemala over Belizean territory should be submitted to the ICJ for a final and binding decision.
 
We note that the compromis (special agreement) signed last December by Belize and Guatemala, stipulates in Article 5 that if the parties cannot between themselves execute the ruling of the ICJ, to mark out the border between Belize and Guatemala, the Organization of American States (OAS) may be asked to effect the delimitation, in line with the ruling of the ICJ.
 
The Charter of the United Nations (included with this column) also makes provisions for the United Nations Security Council to enforce an ICJ ruling, but it is not required to play this enforcement role.
 
Moreover, any one of the five permanent members of the United Nations Security Council—China, France, Russian Federation, the United Kingdom and the United States—can exercise “veto” powers and block any resolution of their counterparts, even if the majority vote to the contrary.
 
The UNSC’s website says, “Decisions on substantive matters require nine votes, including the concurring votes of all five permanent members. This is the rule of ‘great Power unanimity’, often referred to as the ‘veto’ power.”
 
In effect, if only one of the five permanent members does not support a resolution to enforce an ICJ ruling, then the resolution is no good!
 
So if, hypothetically speaking, the Belize-Guatemala dispute were to be heard at the ICJ and the court rules in Belize’s favor, and orders delimitation in accordance with the boundaries set out in our Constitution, and Guatemala resists such a ruling, Belize could seek redress at the UN Security Council, but it would only take the vote of a single permanent member, say China or US, to frustrate Belize’s efforts.
 
On the other hand, if the court rules in favor of Guatemala, and rules that a part or, worst case scenario, all of Belize, should go to Guatemala and Belizeans refuse to comply with the ICJ ruling, the UN Security Council may opt to pass a resolution to enforce the ICJ ruling, with no resistance from permanent members.
 
Since our officials tell us that our case is a sure win at the ICJ, the key question to ask here is whether Guatemala has any strong allies among the five permanent members of the UN Security Council. Does Belize have any strong allies (or enemies) within the group?
 
Could China, because of Belize’s relationship with Taiwan and its support for Taiwan’s membership in the UN, for example, pay the price if and when it comes time to enforce an ICJ ruling? Could the US side with Guatemala against Belize? Would the UK, Russia or France side with Belize? What about the other 10 members of the United Nations Security Council?
 
The role of “great Power unanimity” was seen in the case that Nicaragua brought against the US in 1984, and after several failed attempts to use the UN system to enforce an ICJ ruling ordering the US to pay reparations, the ruling was never complied with, and a frustrated Nicaragua abandoned the ICJ process in 1991. (The case in question was over US military and paramilitary actions in Nicaragua. The US claimed collective self-defense, challenged the jurisdiction of the court, and protested by not participating in the case.)
 
It has been reported that there were 5 vetoes between 1982 and 1985, and a final one in 1986. Eleven UNSC members voted for the resolution to enforce the ICJ ruling, three (France, Thailand, and the UK) abstained, and the US voted against it, vetoing the resolution.
 
For its part, the United Nations General Assembly, the body made up of all member states of the UN, passed a non-binding resolution by votes of 94 to 3 – with the US, El Salvador and Israel voting against it.
 
In the paper titled Non-Compliancewith the ICJ: A Review, Andrew Srulevitch, for the Conference of Presidents of Major American Jewish Organizations (July 8, 2004), writes: “States have not been subject to Security Council sanctions for non-compliance.”
 
He pointed to other cases apart from the Nicaragua/US case:
 
“[France and Iceland] rejected ICJ decisions – in contentious cases, not advisory opinions – when the court ruled against their national security policies. In defiance of a 1973 ICJ order, France continued atmospheric nuclear testing in the South Pacific until its nuclear weapons program no longer required such tests. In 1974 the ICJ ruled against Iceland’s unilateral expansion of its exclusive fishing zone. Iceland disregarded the decision…
 
“The ICJ recognized Moroccan interests in the disputed territory of Western Sahara, yet found the claim to self-determination by the indigenous population to be superior. Though Morocco rejected the opinion in a dramatic fashion by sending 350,000 Moroccan civilians to Western Sahara, sanctions were never enacted…
 
“The United States’ rejections of ICJ decisions in the Nicaragua and LaGrand cases are also relevant to the [Israel/Palestine] Security Fence case. In 1984, the US lost the jurisdictional decision on the complaint brought by the Nicaraguan government and withdrew from the proceedings…
 
“In the LaGrand case, the US Supreme Court disregarded an ICJ order to stay the execution of a German national in Arizona. The Supreme Court ruled: ‘[w]ith regard to the action against the United States, which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity…’
 
“Like the US, Israel will likely decide that its Supreme Court takes precedence over the ICJ should the rulings of the two bodies conflict.”
 
In the case of the executed Mexican national on whom we reported last week, the Supreme Court with jurisdiction in Texas ruled that it was not compelled to observe the ICJ ruling calling for a review of the case of the death row inmate. Former President George Bush had taken steps to implement the ICJ ruling, but the court held otherwise, citing principles of separation of powers, and arguing that existing laws did not compel the state to comply with presidential orders.
 
Still, states that subscribe to the United Nations, and hence to its Charter, are expected to comply with rulings of the ICJ. Article 94 below states that “each Member…undertakes to comply with the decision…in any case to which it is a party.”
 
(In the case of Belize and Guatemala, the parties have not yet given jurisdiction to the ICJ to hear the case, but would do so if the compromis is ratified with approval of the legislatures of both countries, and approval by voters in national referenda. But if and when that is done, the parties would, in principle, be bound to comply with a ruling of the ICJ.)
 
“If any party to a case fails to perform the obligations incumbent upon it…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.”
 
It is important to note that the language of this article in the UN Charter does not compel the UN Security Council to act, to enforce any ruling of the ICJ. Neither does it stipulate a specific mechanism for any such enforcement.
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