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Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations
II. The Discretion of the Security Council Under Article 94(2)
Article 94(2) of the Charter, in vesting the Security Council with the power to give effect to a judgment of the ICJ, seems to provide a potential element of cohesion between the two UN organs.5 However, surveying this provision more closely, one might be led to a different conclusion. This arises mainly out of the discretionary character of the authority of the Council in the matter. The wording of the provision expressly indicates that the Security Council `may' exercise its power to enforce compliance with a Court's judgment only `if it deems [this to be] necessary'. It is to be noted that in its original version the proposal that led to Article 94(2), as in the case of the analogous prescription in the Covenant of the League of Nations,6 provided an obligation for the Security Council to act when the successful litigant had brought the case of non-compliance before it.7
Already at the San Francisco Conference the question arose whether, in its final version, Article 94(2), and particularly the phrase `if it deems necessary', might impair the independence of the Court vis-à-vis the Security Council:
It was observed that the use of this phrase might tend to weaken the position of the Court. In answer to this argument it was pointed out that the action to be taken by the Security Council was permissive rather than obligatory and that the addition of the aforementioned phrase merely made more clear the discretionary power of the Security Council.8
Be that as it may, it is apparent that, contrary to what was prescribed in the Covenant,9_the drafters of the Charter, in preserving the discretion of the Security Council in this matter, have rendered the Court totally dependent on the logic of political negotiation between Members of the Council with regard to the enforcement of its judgments that are not spontaneously complied with.10 Basically, the provision in point gives the Council the liberty not to act to enforce the decision, even if so requested by the party in favour of which the decision has been rendered. However difficult it would be for a constitutional lawyer to come to terms with the idea that on the domestic plane the Judiciary might be in a position of dependence upon the Executive in such substantive terms, it cannot be denied that the above picture should not appear as particularly shocking to a United Nations student. One should not lose sight of the fact that the Security Council is, at the same time, both the supreme political organ of the Organization and, virtually, the only institutional means for enforcement in the UN system, and that it is also vested with powers to promote peaceful settlement of disputes under Chapter VI of the Charter. It is as well to bear in mind that realistically the wording of Article 94(2), in its final version, is totally in line with the political underpinnings of the overall structure of the UN Charter, i.e. a construction centred on the pillar of the five Permanent Members of the Security Council. It would have been surprising, however desirable in principle, if a Charter provision were to provide an absolute obligation for the Council to act in order to give effect to a Court decision. Difficulties would arise with respect to such a provision with regard to the possibility - also inevitable under the present Charter - that the political evaluations of the Council on a given case might differ from the stand taken by the Court on the basis of purely legal reasoning. Such difficulties would become only more apparent in a situation where the Council found itself compelled to pass ex-officio a resolution against a Permanent Member which had lost a case before the Court and did not intend to comply with its ruling. This consideration will also be relevant later on, when dealing with the voting procedure applicable to a draft resolution based on Article 94(2).
A. Are Political Organs of the UN Vested with the Power to `Review' a Decision of the Court?_
1. The Security Council
In studying Article 94(2), the question has also been raised whether the Council is vested with some power to review decisions of the Court.11
No power of revision over pronouncements of the Court is expressly provided for the Council anywhere in the Charter. The rationale of Article 94 is certainly not that of providing the Security Council with the power to decide on the validity of a Court decision. On the contrary, Article 60 of the Statute of the Court, which forms an integral part of the Charter, provides that `[t]he judgment is final and without appeal', and Article 61 confers upon the Court exclusive competence over any dispute `as to the meaning and scope of the judgment', as well as over proceedings for its revision. In addition, the latter provision makes application for revision conditional upon discovery of a new fact unknown to the Court at the time when it handed down the judgment.12 The contention could be made, though, that these statutory rules on revision are totally irrelevant to the question in point, which does not refer to the power of revision of a judgment in technical terms, but, instead, from a primarily political point of view. Therefore, the issue should be analysed having regard to the powers of the Council to discuss and to deliberate on any dispute, or situation, of the nature referred to in Articles 34 or 39 of the Charter generally, or in 94(2) in particular. Under such terms, it seems difficult to rule out, in principle, that the Council may act in conformity with the Charter in such a way that could amount to a political revision of a Court decision.
When a State has recourse to the Security Council under Article 94(2), a debate normally ensues in which it is highly likely that arguments will be put forward, at least by the defaulting State, that will question the validity of the Court's decision, either on the merits of the case, or on the Court's jurisdiction, which must also be decided upon by the Court itself, according to Article 36(6) of its Statute.13 Such a debate could in itself provide an element of political revision of the Court's decision. The strength of such a revisionary debate would be proportional to the force of the arguments put forward to contest the decision and, especially, to the number of Members of the Council that subscribe to them. Such a form of political revision would be formally sanctioned - in total conformity with the discretionary character of the powers of the Security Council under Article 94(2) - if a draft resolution, introduced under this provision and containing a recommendation, or measures, to give effect to the judgment, were not adopted through lack of the necessary majority.14
The first two instances in which Article 94(2) was invoked before the Security Council - in 1951 by the United Kingdom against Iran in the Anglo-Iranian Oil Co. case, and in 1986 by Nicaragua in the well-known case against the United States - corroborate the assumption that the scenario above depicted might well occur in practice.
As regards the Anglo-Iranian Oil Co. case, its main relevance here lies in the fact that it referred to an order of the Court requiring provisional measures, whereas Article 94 refers, in paragraph 1, to decisions, and, in paragraph 2, to judgments. The question of the scope of application of the provision at hand with respect to Court orders will be considered later on in this paper; but what is of special relevance for us at this juncture is the fact that, as a result of the UK having proposed under Article 94(2) that the Security Council call upon Iran to comply with a pronouncement of the Court,15 a debate followed in which arguments similar to those submitted to the Court by the parties were taken up by Members of the Council,16 and the draft resolution submitted by the United Kingdom17 and repeatedly revised, was eventually withdrawn.18
The Case of the Military and Paramilitary Activities in and against Nicaragua may be regarded as another example in which recourse to the Security Council under Article 94(2) could be seen as a threat to the legal authority of the judicial decisions of the Court, due to the lack of action by the Council.
With a letter dated 17 October 1986 the Permanent Representative of Nicaragua to the United Nations requested an emergency meeting of the Security Council `in accordance with the provisions of Article 94 of the Charter, to consider the non-compliance with the Judgment of the International Court of Justice dated 27 June 1986 [...].'19 Pursuant to that request a meeting of the Council was held a few days later20 during which a draft resolution was introduced that `... [u]rgently call[ed] for full and immediate compliance with the Judgment of the International Court of Justice of 27 June 1986 [...].'21 Put to the vote, the draft resolution in point was not considered as adopted by the President of the Council owing to the negative vote of a Permanent Member, i.e., the United States.22 This negative result was, though, formally reached through a debate which substantially upheld, or, at least, did not aim to undermine the authority of the Court. The United States, i.e., the defaulting party, was the only Member that put forward arguments against the validity of the judgment of the Court arguing that the latter had passed a decision that it `had neither the jurisdiction nor the competence to render'.23 The United States was also the only Member that voted against the draft resolution. It is noteworthy that Honduras, admitted to the debate under Article 31 of the Charter, aside from blaming Nicaragua for having made `use of the Court for propagandistic purposes', did not touch upon the Court's findings either as to its jurisdiction, or on the substantive merits of the case.24 Also those Members of the Council who did not support the draft resolution and, therefore, abstained, namely, France, Thailand and the United Kingdom, did not object to the validity of the Court's pronouncement. It was made clear by those delegations that their stand on the matter was based on purely political considerations regarding the implications of the Court's decision, rather than on legal grounds concerning its validity.25
After the above-mentioned draft resolution was vetoed in the Security Council, an identical text was submitted by Nicaragua to the General Assembly.26
2. The General Assembly
As a result of Nicaragua's initiative to transfer the debate from the Security Council to the General Assembly, the question turns on the competence of the latter over issues of non-compliance with decisions of the International Court of Justice. Unlike the Security Council, the General Assembly is not specifically vested with a similar competence. However, one should not deduce from this that the Charter rules out such a competence.27 No arguments a contrariis based upon Article 94(2) can defeat the general scope of the functions and powers of the Assembly entrusted to it by Article 10, and stressed in Article 11(4) of the Charter. Limitations to the general competence of the Assembly have been expressly provided in Articles 11(2) and 12(1). According to these provisions, the General Assembly cannot lawfully deal with a dispute over non-compliance with a Court decision while the issue is pending before the Council, nor can it decide that action should be taken with respect to such a dispute.28
In line with the above reasoning, and in consideration of the fact that the draft resolution introduced by Nicaragua did not provide for any enforcement measures of the kind provided for in Chapter VII, the draft resolution was discussed and put to the vote in the General Assembly. It was adopted by ninety-four votes to three (El Salvador, Israel and the United States voting against), with forty-seven abstentions.29 In the debate that preceded and followed the vote the Court's authority was, basically, left intact, apart from the United States' reiteration of the arguments put forward in the Council against the Court's assertion of jurisdiction.30 The Representative of El Salvador, who, together with those of Israel and the United States, had voted against the resolution, focused his objection on the content of the draft resolution itself rather than on the Court's decision, and refuted the political usefulness of the latter vis-à-vis the then ongoing peace process in Central America.31 The Representative of Ecuador explained his affirmative vote, even though his delegation was against `the eminently political implications' of the resolution, by stressing Ecuador's `unswerving respect for the legal and peaceful means provided by international law for the consideration and the settlement of disputes, one of the most effective ways of which is resort to the International Court of Justice and full respect for the Court's judgments.'32 By the same token, the Representative of Luxembourg explained that his delegation `did not vote against the draft resolution because it recognize[d] the validity of the judgments of the International Court of Justice' even if it disagreed as to its appropriateness with respect to the general political situation in Central America.33 Mexico's stand is particularly relevant for our purposes insofar as its Representative maintained that compliance with Court's judgments should always be supported `regardless of any particular position taken on the substance of the issue that led to the litigation'.34
3. Some Tentative Conclusions
As regards the general question of whether United Nations political organs are vested with the power to `review' a Court decision, given that the Charter neither expressly provides, nor excludes, such a power, discussion of the matter must be based on practice, however scarce, as much as on principle. According to a textual interpretation of the Charter, both the Security Council, under Article 94(2), Chapters VI and VII, and the General Assembly, under Article 10 and Chapter VI, can discuss and make recommendations on the merits of a case decided upon by the Court in a way which might be somehow at variance with the Court's decision. However, one cannot but agree that `... [t]he more persuasive view [...] is that [they] should not do so'.35 The view that the statutory powers of the Council and of the General Assembly should be interpreted in such a way as to prevent them from interfering with the judicial authority of the Court could be substantiated by a teleological interpretation of the Charter aimed at meeting the constitutional need for a separation of powers within the United Nations system. Nevertheless, this argument should be without prejudice to the possibility for the Council, or the Assembly, to resort in extreme cases to the said textual interpretation of the Charter and deny the requested support, when the overwhelming majority of Members in the Council, or in the Assembly, agree on the inappropriateness, from a political viewpoint, of upholding the findings reached by the Court on the strength of strictly legal grounds.
This view seems to be in line with the position taken by Member States in the few instances in which the question in point has presented itself. Particularly, in the course of the debate over the Court's decision in the Nicaragua case in the Security Council, as well as in the General Assembly, the prevailing attitude of Member States has been one of either total support for the Court's authority, or of self-restraint, with the exception of those States adversely affected by the decision. A policy of self-restraint also seems to have been followed, after all, by the Council and its Members in the Anglo-Iranian Oil Co. case. The lack of action by the Council in that case was aimed at preventing support for the provisional measures originally indicated by the Court later proving to be in conflict with the Court's judgment on its jurisdiction.
Support, by analogy, for the assumption that the Council, and, even more so, the Assembly, should not review the validity of a decision of the Court has been found in the position taken repeatedly by Member States in the General Assembly with regard to advisory opinions of the Court.36 The general view expressed by Member States is that advisory opinions should be accepted by the Assembly, or, possibly, even refused upon political considerations, without discussion of the findings of the Court.37 One of the most indicative statements to that effect is that of the United States Representative on the advisory opinion on Certain Expenses of the United Nations:
... [M]y Government sees no need for this Assembly to pass upon, or even go into, the reasoning of the Court. [...] The draft resolution [accepting the advisory opinion] anticipates the General Assembly performing a function which is proper to it. The General Assembly is not a Court. It is not a judicial organ of the United Nations, and still less it is `the principal judicial organ of the United Nations', as Article 92 of the Charter describes the International Court of Justice. It is not the function of this Assembly [...] to act as a Court to review the International Court of Justice. To do so would depart from the Charter's clear intention. When the Court's opinion is asked, establishment and interpretation of the law, in the design of the Charter, is the function of the Court; action to implement the law is, as the case may be, the function of other organs of the United Nations.38
This policy of self-restraint on the part of UN political organs and its Members would not consist only of avoiding action that might be in contrast with a ruling of the Court, the UN political body could also be said to have followed a satisfactory policy of self-restraint when, in the particular circumstances, it did not follow up the request by the successful litigant, or deliberated in such a way that might not reflect the decision of the Court, provided this was based on merely political grounds and without touching upon the legal reasoning of the Court.39 The basic justification, from both a legal and a political point of view, for the Council to take a stand, based upon political considerations, in conflict with the decision of the Court would rest on the generally agreed principle that the dispute decided by the Court should be considered as separate from the one arising out of the non-compliance with the Court's decision.40
The conclusion that an attitude of self-restraint by UN political organs and its Members would be the only realistic way to preserve the authority of the Court in the matter at hand could be implemented by a rule of conduct. Such a rule, unsuitable by its nature for insertion in the Charter by way of a formal amendment, could be `codified' by a General Assembly resolution41 - and, possibly, also, by a Security Council resolution with the same content and the same hortatory effect. Obviously, one would not think of a resolution exclusively devoted to the question in point. The suggestion could be more appropriately discussed in the context of a resolution of wider scope, such as the enhancement of the role of the International Court of Justice. A similar initiative could fit well within the current United Nations Decade on International Law and might represent a consistent development of the Manila Declaration on the Peaceful Settlement of Disputes.
5 Article 94 reads as follows: `1. Each member of the United Nations undertakes to comply with the decision of the international Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, 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.'
6 Article 13(4) of the Covenant reads as follows: `The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto'.
7 This proposal was introduced in San Francisco by the Cuban delegation at a very late stage in the proceedings (United Nations Conference on International Organizations (UNCIO), Vol. 4, at 695 and ibid., Vol. 13, at 508). In effect, the proposal was originally to be inserted in the Statute of the Court. There followed a second version of the proposal which still provided for an obligation to act, but in softer terms (`the Security Council shall make recommendations or decide upon measures to be taken to give effect to the judgment'), ibid., at 510. For a thorough examination of the preparatory works of Article 94, see, in particular, the commentary by Pillepich in J.-P. Cot and A. Pellet (eds), La Charte des Nations Unies (2nd ed., 1991) 1275 et seq.
8 UNCIO, Vol. 13, at 459. For further debate on the same issue, see also ibid., Vol. 12, at 505, 519-520.
9 See Article 13(4), supra note 5. For a thorough analysis of the discrepancies between this provision and Article 94 of the Charter, see Schachter, supra note 3, at 18.
10 The Statute of the Court contains no provision enabling the Court itself to take any steps in cases of non-compliance. The suggestion has been made that Article 60 of the Statute might be amended in such a way as to allow the successful party to apply to the Court for a `declaration of non-compliance' (W.M. Reismann, Nullity and Revision, Review and Enforcement of International Judgments and Awards (1971) 671 et seq.). Such an amendment would offer the advantage of increasing the pressure on the defaulting party. Therefore, if a substantial modification of the Charter, of which the Statute forms an integral part, were to be undertaken, proposals like this one should be taken into serious consideration, together with others aimed at improving the administration of justice. At the same time, one would hesitate to endorse the amendment suggested above to the extent that it contemplates a procedure whereby the Court would complement a `declaration of non-compliance' with the possibility of adjusting its decision, or rendering an award of substitutive compliance. One can certainly agree that `it seems unwise to establish a procedure when the losing party can seek to change the judgment against it simply by not complying with it' (Kerley, supra note 3, at 283).
11 Kelsen, `The Settlement of Disputes by the Security Council', The Int.l' Law Quart. (1948) 211 et seq.; A. Ross, Constitution of the United Nations (Analysis of Statement and Functions) (1950) 102 et seq.; Kerley, supra note 3, at 278 et seq.
12 It is noteworthy that paragraph 3 of Article 61 also provides that `[t]he Court may require previous compliance with the terms of the judgment before it admits proceedings in revision'.
13 Obviously, one is not suggesting that Article 94(2) applies to decisions of the Court as to its jurisdiction.
14 The case has also been made (it would certainly be a border-line case) that the Council might deliberate to the effect that the decision of the Court should not be given immediate effect. One cannot but subscribe to the argument that the only way to reconcile such a deliberation with Article 76 of the Rules of Court, according to which the judgment becomes binding on the parties as of the day on which it is read in open Court, is to consider that `... [t]his type of moratorium [...] would not undermine the authority of the Court but simply suspend the obligatory force of the judgment on the ground that new proceedings have intervened' (Schachter, supra note 3, at 22).
15 In a letter dated 28 September 1951 the UK brought before the Council, as a matter of extreme urgency, the failure by the Iranian Government to comply with the provisional measures indicated in the Court's Order of 5 July 1951 (UN Security Council Official Records (SCOR), 6th Yr. Suppl. for October, November and December, at 1 and 2, S/2357. For the text of the Order, see ICJ Reports (1951) 89).
16 Iran objected to the validity of the Court's order on the basis that the Court was not competent in the case by virtue of Articles 1(2) and 2(7) of the Charter (UNSCOR, 6th Yr, 560th mtg, paras. 28-39 and 43-67). For his part, the representative of the former Yugoslavia, siding with Iran, argued that the Security Council was not bound by decisions taken by another organ of the United Nations (UNSCOR, 6th Yr, 559th mtg, at 3). See also the stand taken by India, according to which it was not proper for the Council to pronounce on the question of jurisdiction when it had not been decided by the Court (ibid., paras. 69-76). It is to be noted that the two sets of arguments presented before the Council, those in favour and those against the Court's competence, reproduced much the same issue that was pending before the Court, and were meant to be formalized in a Council resolution. A draft to that effect had been introduced by Ecuador. In its first preambular paragraph, it referred to the statements made in the Council by the parties to the dispute before the Court, and in its operative part it advised the parties to try again to settle their dispute, without even mentioning the preventive measures contained in the Court's Order (UNSCOR, 6th Yr. 562nd mtg., para. 48, S/2380).
17 Ibid., at 2 and 3 (S/2358).
18 Given the special circumstances of the case, it can be regarded as a precedent in which the Security Council solved by way of self-restraint, a typical case of `litispendence' between itself and the Court. In fact, at the time when the Council was debating the issue, the same case was pending before the Court which, after having indicated interim measures, had still to pass judgment on its own jurisdiction. Since the proposal by the UK on the question of non-compliance by Iran with the Court's order, was not gaining ground in the Council, and in consideration that in debating such a question a number of issues were being discussed which were still pending before the Court, as they basically pertained to its jurisdiction, the view prevailed that the Council should have adjourned its debate until the Court had handed down the judgment on its jurisdiction. A French proposal to that effect was finally approved by eight votes to one, with two abstentions (UNSCOR, 6th Yr, 563rd mtg, paras. 135 et seq., ibid., 565th mtg, para. 62).
20 On 28 October 1986, see UN Doc. S/PV. 2718.
22 S/PV.2718, at 51. A similar draft resolution (S/18250) had already been submitted at the 2704th meeting of the Security Council and vetoed by the United States. For an extensive background to the case, see A.V. Patil, The UN Veto in World Affairs. A Complete Record and Case History of the Security Council's Veto (1992) 372 et seq.
23 S/PV.2718, at 44 et seq. The US Representative went on to say that `[...] no Court, not even the International Court of Justice, has the legal power to assert jurisdiction where no basis exists for that jurisdiction. The language and negotiating history of the Charter of the United Nations and the International Court of Justice, as well as the consistent interpretation of those instruments by the Court, this Council, and Member States, make abundantly clear that the Court's claim to jurisdiction and competence in the Nicaragua case was without foundation in law or fact' (ibid., at 46).
25 The Permanent Representative of Thailand expressed the view that it would have been more effective for the Council to have supported the regional peace initiatives, at the time still under way, rather that rely on Article 94 of the Charter (ibid., at 42 et seq.). He also put forward an argument of legal character, carefully enough, though, so as not to make it sound like an objection to the validity of the Court's decision. On the one hand, he accepted that, in spite of the position taken by the United States, the Court had determined that the latter was to be considered a party to the case; on the other hand, he stressed that Article 94(2) would place the Council in a dilemma, as `the Council may make recommendations or decide upon measures under this provision only if it considers that a party has failed to perform its obligations under a judgment of the Court, a determination which is intrinsically legal in nature' (ibid., at 42).
Both France and the United Kingdom, in their statements after the voting, explained their abstention by saying that they were trying to leave the legal authority of the Court untouched (ibid., at 52 et seq.). In particular, the Representative of the United Kingdom stated that `... [c]ompliance by the parties with the International Court of Justice decisions is a clear Charter obligation, but it is nothing less than presumptuous for the Government of Nicaragua [...] to call for selective application of the Charter in this case', and concluded by saying that `... [w]hile we do not challenge the draft resolution on legal grounds, we are unable to support a draft resolution which fails to take account of the wider political factors [...]' (ibid., at 52).
26 Draft Resolution A/41/L.22.
27 Against such a competence, see the statement of the US Representative, UN Doc. A/41/PV. 53, at 66 et seq., and that of the Representative of El Salvador, ibid., at 84 et seq. In favour, see especially, the statement of the Representative of Mexico (ibid., at 77).
28 For the argument that the General Assembly is competent in the matter, see Reisman, supra note 9, at 729 et seq. and Kerley, supra note 3, at 282. The latter founds the Assembly's competence in point on the assumption that both the Council's and the Assembly's powers in the matter derive from Chapter VI. Therefore, he affirms that `if requests for enforcement of judgments of the Court are received by the Council as "disputes" or "situations" under Article 35(1), the competence of the General Assembly to receive them under the same provision is difficult to question' (ibid.). See, also, Rosenne, supra note 3, at 575. It is difficult though to understand how this author could further found the Assembly's competence in the matter on its right to request advisory opinions to the International Court of Justice (ibid.). Rosenne also suggested that the Assembly's competence in the matter could be of an operative nature on the strength of the then alleged evolutive practice based on the so-called `Uniting for Peace Resolution': `Il y a eu une tendance, qui a trouvé son expression dans la Résolution appellée "Action conjuguée en faveur de la Paix" (377, V) et dans les amendements qu'elle a apportés au règlement intérieur de l'Assemblée Générale, qui consiste à essayer de créer un certain parallélisme entre les pouvoirs et les fonctions de l'Assemblée Générale d'une part et ceux du Conseil de Sécurité d'autre part [...]. C'est alors une conséquence naturelle de cette tendence de reconnaître que des organes autres que le Conseil de Sécurité peuvent être capable de traiter la mise en vigueur des décisions de la Cour' (ibid.). This assumption was debatable already at the time when it was put forward in the light of the controversy which sprang around the `Uniting for Peace' practice itself. On account of the evolution in the political balance in the United Nations since the time when this author wrote on the subject, it is even more difficult in this day and age to agree with the opinion that, on the basis of the Uniting for Peace Resolution, `[...] in the future, the Assembly could plainly recommend economic sanctions against the judgment debtor, deny benefits and services, order a peacekeeping force to patrol borders or send the Secretary General to discuss compliance' (O'Connell, `The Prospects for Enforcing Monetary Judgments of the International Court of Justice: A Study of Nicaragua's Judgment Against the United States', Va.J.Int'l L. (1990) 913). More generally, on the debate concerning the powers of the General Assembly with respect to actions for the maintenance of international peace and security, see in particular Andrassy, `Uniting for Peace', AJIL (1956) 563 et seq.; Gulhaudis, `Considérations sur la pratique de l'Union pour le maintien de la paix', AFDI (1981) 382 et seq.; Reicher, `The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage', Colum. J. Trans. L. (1981) 1 et seq.
33 At the same time, he explained his delegation's abstention stating that `Luxembourg did not vote for the draft resolution in the belief that it is inadvisable to consider the judgment of 27 June 1986 in isolation from a general review of the situation in Nicaragua, including the peace proposals of the Contadora Group, involving concessions by all parties' (ibid.).
34 He went on to say that `... [f]ailing to do that would undermine the legal foundations of the international order as well as the importance and compulsory nature of the judgments of the International Court of Justice' (ibid., at 77).
35 Kerley, supra note 3, at 278.
36 Kerley, supra note 3, at 278 et seq. The analogical basis of this argument, though, seems rather loose, for advisory opinions are not, by their very nature, final decisions.
37 For the advisory opinion on the International status of South West Africa (ICJ Reports (1950) 128 et seq.), see the statements by the Representatives of the United Kingdom, Venezuela and Brazil (UN General Assembly Official Records (GOAR), 5th sess. 4th Comm., respectively, at 319, 335 and 337. A/C.4/SR. 191, 192, 194). On the advisory opinion on the Effect of Awards of compensation made by the United Nations Administrative Tribunal (ICJ Reports (1954) 47 et seq.), see the statements by the Representatives of the United States, Argentina, Norway and Australia (UN GAOR, 9th sess., 5th Comm., respectively, at 271, 277-278, 280-281. A/C.5/SR. 474, 476). For the advisory opinion on the Admissibility of hearings of petitioners by the Committee on South West Africa (ICJ Reports (1956) 23 et seq.), see the statements by the Representatives of the United States and New Zealand (UN GAOR, 11th sess., 4th Comm., respectively, at 93 and 95. A/C.4/SR. 568). More articulated were the positions expressed in the Security Council on the advisory opinions on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (ICJ Reports (1971) 16 et seq.). See Resolution 301 adopted on 20 October 1971, and the position taken by Italy, Japan, Sierra Leone (UNSCOR 26th Yr, 1585th mtg. respectively, at 47, 39-40, 27); United States and United Kingdom (ibid., 1589th mtg., respectively, at 8-11, 30); Argentina (ibid., 1593rd mtg., at 12-16); Belgium (ibid., 1594th mtg., at 27) and France (ibid., 1598th mtg., at 4-6).
38 US Del. to UN General, Press Release No. 4112 (1962) 3, summarized in UN GAOR, 17th sess., 5th Comm., at 277 et seq. (A/C.5/SR.961). See also the statement made by the Representative of the United Kingdom in the same debate, UN GAOR, 17th sess., 5th Comm., at 282 (A/C.5/SR.962).
39 As Schachter put it, `... [i]t [the Security Council] will, in short, be neither a sheriff nor an appellate tribunal, but a political body competent to take account of the widest range of considerations that may be involved in determining whether, and to what extent, the coercion of the international community shall be brought to bear upon the recalcitrant State' (supra note 3, at 21).
40 `En droit international, la séparation du prononcé de l'arrêt et de sa mise en vigueur est un postulat essentiel tant dans le domaine de l'arbitrage que dans celui du règlement judiciaire' and added that `la Charte aussi bien que le Pacte avant elle-même, sont basés sur la présomption que la procédure de mise en vigueur, si elle est portée devant l'organe politique compétent, acquiert le charactère d'un différend entièrement nouveau qu'il convient de régler par des moyens politiques, où la sentence arbitrale ou judiciaire n'est elle-même qu'un seul parmi plusieurs facteurs' (Rosenne, supra note 3, at 534, 535).
41 We are referring to the kind of General Assembly resolutions that have been the result of the work of the Assembly's `Special Committee on the Charter of the United Nations and on the Strengthening of the Organization'. Such non-binding instruments were aimed, in some cases, at confirming the evolutive practice of UN organs, in other cases, at maximising the application of existing Charter provisions in the field of peaceful settlement of disputes and maintenance of international peace and security. Reference should be made, in particular, to Resolution 37/10 of 15 November 1982 on `Peaceful Settlement of Disputes', also known as the `Manila Declaration'; Resolution 43/51 of 5 December 1988 on `Prevention and Removal of Disputes and Situations which may Threaten International Peace and Security and on the Role of the United Nations in this Field'; and to Resolution 46/59 of 9 December 1991 on `Fact-Finding by the United Nations in the Field of Maintenance of International Peace and Security'.
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