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

Attila Tanzi¹

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I. Introductory Remarks

The enforcement of decisions of the International Court of Justice may involve problems that touch upon some of the most delicate areas of both public international law, and the law of the United Nations, at a time when these two systems of law can hardly be considered as totally separate from each other. In the body of general law and practice concerning enforcement of international rules the principle of self-help remains prominent.² On the other hand, within the apparently more integrated and institutionalized context of the UN system - and this is the field into which we are principally going to venture in the present study - one is confronted with highly controversial issues, such as voting procedure in the Security Council, or the relationship between the Council and the International Court of Justice, these issues being part and parcel of the everlasting controversy between law and politics.

First, with regard to the question of the relationship between the Security Council and the Court,³_consideration will, primarily, be given to the implications of the discretionary character of the role of the Council under Article 94(2). Second, and in particular, when assessing the voting procedure which applies when the Council votes on a draft resolution aimed at giving effect to a judgment of the Court, a systematic analysis will be made of Articles 94 and 27 of the Charter in connection with the more general competence of the Council under Chapters VI and VII. Last, this enquiry will focus on the scope of application of Article 94(2), having special regard to orders of the Court indicating provisional measures, and giving consideration to those special advisory opinions that are made compulsory under ad hoc agreements.

The few scholars who have dealt with this topic in the past have lamented the almost total lack of relevant practice.⁴ After almost fifty years of functioning of the UN, the instances in which action by the Security Council has been invoked under Article 94(2) are still rare: this Article was used by the UK, in 1951, with respect to the Anglo-Iranian Oil Company case; by Nicaragua, in 1986, in the case against the United States and by Bosnia-Herzegovina, in 1993, in the case against the Federal Republic of Yugoslavia._

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1 Professor of Diplomatic and Consular Law on annual term at the University of Florence and Lecturer in International Law at the University of Perugia.
I would like to thank Professors Marina Spinedi, Bruno Simma, Giorgio Gaja and Luigi Ferrari Bravo for their helpful comments.

2 Schachter refers to self-help as `a broad, if somewhat imprecise, term that covers a range of actions (other than armed force) which may be taken by a state injured by a violation of legal obligations owed to it. Analytically, it falls into the category of actions to achieve compliance or to enforce obligations. (`United Nations Law', AJIL (1994) 14.) For a commentary on the ongoing work of the International Law Commission in this area, see the collective contribution under the title `Symposium: Counter-measures and Dispute Settlement: The Current Debate within the ILC', EJIL (1994) 20 et seq. On the traditional prominence of the principle of self-help as a remedy against breaches of law in international relations, see Fitzmaurice, `The Future of Public International Law', Livre du Centenaire, Annuaire de l'Institut de Droit International (1973) 300 et seq.

3 The question of the discretionary powers of the Council under Article 94(2) represents, indeed, only a part of the more general problem of the relation of the Council to the Court, which cannot be analysed here. More generally, on the problem of the concurrent jurisdiction between the Council and the Court, see T.G.H. Elsen, Litispendence Between the International Court of Justice and the Security Council (1986). In fact, in the present study the problem of concurrent jurisdiction is analysed with regard to whether the Security Council can bring about a sort of political review of a Court decision, a problem that presents itself when the Council deliberates on an issue which has been brought before the Court after it has passed a judgment. The other side of the problem is that of the possibility of judicial review of the legality of a Council decision. The most recent case addressing this problem is that on the interpretation and application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. US), Request for the Indication of Provisional Measures. The Court's Order of 14 April 1992 has prompted an intense debate among international law scholars, see, among others, Andreas Saenz de Santa Maria, `De maximis non curat praetor ...? El Consejo de Seguridad y el TIJ en el asunto de Lockerbie', Revista española de derecho internacional (1992) 327 et seq.; Franck, `The `Powers of Appreciation': Who is the Ultimate Guardian of UN Legality?', AJIL (1992) 321 et seq.; Sciso, `Può la Corte internazionale di giustizia rilevare l'invalidità di una decisione del Consiglio di sicurezza?', RDI (1992) 369 et seq.; Graefrath, `Leave to the Court what Belongs to the Court. The Libian Case', EJIL (1993) 184 et seq.; Kennedy (R.F.), `Libya v. United States: The International Court of Justice and the Power of Judicial Review', Va.J.Int'l L. (1993) 899 et seq.; Watson, `Constitutionalism, Judicial Review, and the World Court', Harv. Int'l L.J. (1993) 1 et seq.; Bowett, `The Impact of Security Council Decisions on Dispute Settlement Procedures', EJIL (1994) 89 et seq.

4 See, in particular, Schachter, `The Enforcement of International Judicial and Arbitral Decisions, AJIL (1960) 5; S. Rosenne, Law and Practice of the International Court (1965) 154; Kerley, `Ensuring Compliance with Judgments of the International Court of Justice', L. Gross, The Future of the International Court of Justice (1976) 276.

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