Enforcement of the UNO decisions |
INTERNATIONAL ORGANISATIONS |
The birth of the International Court of Justice (ICJ) is linked to two mains events: the end of a world conflict (World War II) and the emergence of an international organization with universal prospects: the United Nations Organization (UNO). Withinthe Committee entitled to write the UN Charter, States were divided about the necessity to create a new court. The Permanent International Court of Justice (PICJ) already existed, and had represented a great evolution in the field of international relations. But the PICJ didn’t correspond to the New World Order that States wanted to fund. So the ICJ was created, and today States’ confidence givesthis organ a real legitimacy.
The ICJ is the main judicial organ of the UN. Indeed, the ICJ maintains close relationships with the UN. Its statute is integral part of the UN Charter. It is composed of fifteen independent judges ensuring a geographical representation combined to a representation of the different legal systems.
The Court is based at The Hague (Netherland), normally in plenaryassembly. Ad hoc judges can be designated by the parties whose state is not represented in the Court’s composition.
The Court exercises two functions: it gives advisory opinions and judgments.
On one hand, the advisory opinions are only consultative in character. They are ruled by the article 96 §1 of the UN Charter (“the General Assembly or the Security Council may request the InternationalCourt of Justice to give an advisory opinion on any legal question”). This article provides that advisory opinions can be formulated by the General Assembly and the Security Council on every legal question. The other organs of the Organization and the other institutions can also seek such opinions under two conditions: they must have an authorization of the General Assembly and the question mustcorrespond to the field of their activity.
Despite they are not compulsory, some instruments can provide in advance that advisory opinions shall be binding for particular agencies or States.
Also, the tendency shows that the Court’s prestige confers a wide influence and a large moral authority on them. That is why the enforcement issues only deals with the ICJ’s judgments.
We are goingto try to answer to the following question: how the ICJ manages to enforce its judgments, while respecting States’ sovereignty?
To answer this question, we have to be sure that the ICJ’s decisions are compulsory. That’s why in the first part of this presentation, we will see on which legal bases the mandatory application of these decisions can be justified (I). And then, we will focus on thedifferent means that can be used to enforce of the ICJ’s judgments (II). This reasoning will lead us to show the weakness of these mechanisms.
I. The basis of the compulsory application of the ICJ’s decisions
First of all, and because of the principle of States sovereignty, the ICJ needs States’ consent to have jurisdiction. So the Court will only be able to pronounce a judgment if thestates concerned by the dispute have clearly agreed to the Court’s jurisdiction.
Actually, the article 36 of the UN Charter provides three ways for States to make such an agreement:
- it can be by a special agreement: in the context of a particular case;
- it can be by a treaty: indeed some treaties provide the Court’s jurisdiction if any litigations arise from its interpretation or itsapplication;
- and finally it can by an “optional clause declaration”: a state can accept by advance the Court’s jurisdiction as compulsory in the case of a dispute with another country which made the same declaration. Each state can always add some reservations to exclude certain dispute to its consent.
So, when the jurisdiction of the Court is accepted by the states parties of a dispute, the...