Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations

VI. Concluding Remarks

It appears from the above analysis that the only way to interpret Article 94(2) in such a way that, in strictly legal terms, might confer an independent normative function to this provision and, thus, a reason for it to have been inserted in the Charter is to consider it as the legal basis for the Council to take enforcement action of the kind set forth in Chapter VII, irrespective of the preconditions provided for in Article 39, i.e., `the existence of any threat to the peace, breach of the peace, or act of aggression'. Nevertheless, this contention remains of only theoretical importance, so long as the Council keeps interpreting the preconditions for its coercive action set out in Article 39 as extensively as possible, so as to consider even cases of non-compliance with a Court decision that may not involve the use of force as a threat to the peace. For the rest, Article 94(2) only reiterates, with special regard to cases of non-compliance with Court decisions, other Charter provisions of a more general character:

(a) Articles 35(1) and 37(1), that give any Member State a locus standi before the Council with regard to Chapter VI like situations;

(b) Articles 36 and 37(2), that confer the Security Council the power to act motu proprio with respect to the same kind of situations;

(c) Article 39.

Even if, from a legalistic point of view, one can see little additional value in Article 94(2), and even if one were to consider the latter as devoid of almost any normative autonomy, it seems appropriate to have a provision in the Charter that singles out a locus standi before the Council for cases of non-compliance with a Court decision. Furthermore, in the light of relevant practice (though scarce) the Charter provision under consideration, proves to be perfectly in line with the main political underpinnings of the United Nations system. On the one hand, it is in keeping with those Charter provisions aimed at upholding the `rule of law': the purpose of the peaceful settlement of disputes (Article 2(3) and Chapter VI) and the importance the Charter attaches for its pursuance to the International Court of Justice (Articles 7, 36(3), and 92), the binding character of its decisions (Article 94(1)) and the duty for all Members to `fulfil in good faith the obligations assumed by them in accordance with the [...] Charter' (Article 2(2)). On the other hand, in conformity with the general rationale of the Charter, Article 94(2) combines the above principles with the needs of international politics. In order to meet such needs the Charter has avoided putting the Security Council under the judicial authority of the Court and has provided the Permanent Members of the Council with the right to veto any decision, or even recommendation, concerning `action with respect to threats to the peace, breaches of the peace, and acts of aggression', especially so, if any of them was allegedly responsible for the existence of such a situation.¹²⁰ Accordingly, when the Council was asked to take action under Article 94(2) against one of its Permanent Members for non-compliance with a Court decision in a case involving the use of force it was blocked by the veto of the defaulting Permanent Member. However, this apparently negative result for the rule of law in the Nicaragua case, as well as the lack of action in the Anglo-Iranian Oil Co. case, were reached through a policy decision-making process, which did not really impair the legal authority of the Court. In both cases, the Members of the Council who were against action to give effect to the judicial decision, presented their position by and large on mainly political grounds, without questioning the legal reasoning of the Court.

The case has been made in the present study that such an attitude of self-restraint could be sanctioned by a rule of conduct to be `softly' codified, at least, in a resolution of the General Assembly.¹²¹ This would have primarily symbolic meaning. At the same time, it would have the merit of reminding Member States of a rule of conduct which they, themselves, have applied spontaneously as a way to preserve in the matter at hand the delicate balance between law and politics which is essential for the functioning of the United Nations system.

The main consideration which might help in striking the correct balance between respect for legal values and satisfaction of political exigencies in this issue is one which holds true from both a legal and a political point of view. That is the separation between the dispute before the Court and the dispute concerning non-compliance with the Court's decision, the latter of which is to be dealt with by the Council. Obviously, while before the Court legal considerations necessarily prevail, when a case of non-compliance with a Court ruling comes to the Security Council, which is a body established and functioning under legal rules that have made it purportedly a political as opposed to a judicial organ, such a case becomes one of political relevance. This may justify the impression that the said balance gives prevalence to political factors.¹²²

120 This apparently deplorable rule has permitted the Organization to go through almost forty years of crisis without the withdrawal of any major Member, therefore, keeping alive within the Organization what might be defined as a mix between a permanent negotiation for international peace and `horse trading' in pursuance of national interests.

121 Supra, section II.A.3.

122 As it was recently maintained by Kennedy, `it may be hoped that Court and Council will continue to complement each other, as required by the spirit of the UN Charter, and will remain cognisant of their respective roles and capabilities, each acknowledging the distinctive competence of the other for addressing particular kinds of disagreements in the international arena' (supra note 2).

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