Enforcement of International Law

1. LWN158: Public
International Law
SEMINAR 9: ENFORCEMENT OF
INTERNATIONAL LAW
(ICJ & SECURITY COUNCIL)

2. From last time…
States will be responsible for internationally
wrongful acts (breaches of international law) which
are attributable to them.
Internationally wrongful act results in obligation to
make reparations.
How is this enforced? How does one state bring
another state to account for wrongful acts?
◦ Actions in the ICJ
◦ Actions by the Security Council

3. International Court of Justice
• Principal judicial organ of the United Nations (UN Charter
art 92)
• Constituting documents are UN Charter & Statute of the
ICJ (annexed to the Charter)
• Sits in The Hague (Statute art 22)
• Comprised of 15 judges (art 3) elected for 9 year terms on
a rotational basis (art 13, five elected every three years).
Elected by an absolute majority of both the Security
Council and the General Assembly.
• Ad hoc judges: may be appointed by a state party which
does not have a judge of its nationality already a member
of the Court (art 31).

4. Jurisdiction
• Statute Art 34: Only states may be parties in cases before
the Court – that is no individuals or companies may be
parties.
• Statute art 35: Court is open to states parties to the
Statute.
• Charter art 93: UN members are ipso facto parties to the
ICJ Statute.
• Parties to the ICJ Statute are taken to accept the capacity
of the court:
• To determine its own competence (art 36(6))
• To indicate provisional measures of protection (art 42)
• To permit third-party intervention (art 62)

5. Jurisdiction cont/...
But states are not subject themselves to the
jurisdiction without consent – something more is
required:
1. States may submit a dispute by special agreement
(compromis)
2. States may consent via treaty which specially provides
for ICJ’s jurisdiction to hear disputes in relevant
matters
3. States may declare in advance that they accept the
ICJ’s jurisdiction as compulsory (art 36(2).
4. Declaration of compulsory jurisdiction can be
unconditional or on condition of reciprocity from
other states

6. Jurisdiction cont/…
• Declaration can be subject to reservations (eg Nicaragua
(Merits) case – where US had excluded jurisdiction in
disputes arising under multilateral treaties; or Australia,
where reservation has been entered objecting to
jurisdiction over cases relating to delimitation of maritime
boundaries).
• ICJ may refuse jurisdiction where dispute affects the
interests of a third party which has not consented (East
Timor case)
◦ Won’t be refused where impact on third party is merely ‘affected’
by the judgment (Certain Phosphate Lands in Nauru case)
◦ Will be refused where the interests of a third state constitute the
subject matter of the case (Monetary Gold case)

7. Jurisdiction cont/...
• Art 36: Jurisdiction comprises cases which the parties refer to it, as well as
matters specifically provided for in the UN Charter or other treaties.
• UN Charter art 96: General Assembly may request the ICJ to give an
advisory opinion.
• Two areas of jurisdiction:
1. Contentious jurisdiction: disputes between states
2. Advisory jurisdiction: advisory opinions given following request from UN
◦ Eg Legality on the Threat or Use of Nuclear Weapons (1995)
◦ Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (2003)
• Local remedies rule applies
• Won’t hear cases where the dispute is not legal in nature (although the fact
that it also has political aspects will not deny jurisdiction)

8. Nature of disputes in
contentious cases
Art 36 (2): States can bring a claim against another state where dispute
relates to:
a) Interpretation of a treaty;
b) Any question of international law;
c) The existence of any fact which, if established, would constitute a
breach of an international obligation;
d) The nature or extent of the reparation to be made for the breach of an
international obligation.
• May need to establish standing:
◦ Eg where wrongful act has been against a national of a state need to
establish nationality and exhaustion of local remedies (Articles on
Diplomatic Protection apply).

9. Provisional measures in
contentious cases
• ICJ can order provisional measures which are
necessary to protect rights of either party (art 41)
• Need to prove risk of irreparable injury before
measures will be granted
• Where jurisdictional issues still to be settled, court
will issue provisional measures provided there is
prima facie foundation for jurisdiction (Pulp Mills
case)
• Success at provisional measures phase doesn’t
always lead to success on the merits (eg Nuclear
Tests case)

10. Effect of judgment in
contentious cases
• Judgment is binding and not subject to appeal –
although court may interpret its meaning (art 60) or may
be revised upon discovery of new decisive fact (art 61).
• Only binding on the parties to the case (art 59) - no
doctrine of precedent in international law.
• However, court tends to follow previous decisions
◦ In acceptance of expertise of previous courts
◦ To promote consistency & certainty
• Process develops the jurisprudence of international law

11. Enforcement of judgments in
contentious cases
• UN Charter Art 94: UN members undertake to comply
with decisions of the ICJ in any case to which they are a
party.
• (2) if a state fails to perform obligations under a
judgment, the other party may have recourse to the
Security Council, which may make recommendations or
decide upon measures to be taken to give effect to the
judgment.

12. Advisory opinions
• Statute art 65 (1) – may give advisory opinion in
response to request from any body authorised to
make such a request.
• Determines the applicable international law and
articulates relevant principles, and can provide
guidance to UN agencies on carrying out their
duties.
• Either General Assembly or Security Council may
request an advisory opinion (Charter art 96)

13. Advisory Opinions cont/...
• General Assembly may also authorise other UN
organs and agencies to request opinions (eg
WHO, ECOSOC, IAEA).
• Can be utilised as a process of administrative
review from dispute procedures under other
treaties where those treaties provide for such
review.
• Should not be used as a means to circumvent a
state’s denial of consent to jurisdiction in a
dispute.

14. Security Council
• Two functions in dispute resolution:
◦ Pacific settlement of disputes (UN Charter chapter VI)
◦ Maintenance of peace and security (chapter VII)
• Chapter VI, Art 33:
◦ parties to a dispute shall first seek a solution by negotiation, mediation,
arbitration, judicial settlement or other peaceful means.
◦ Security Council can call on parties to settle dispute peacefully
• Art 34: SC may investigate dispute or ‘any situation which might lead
to international friction or give rise to a dispute’ in order to
determine whether situation is likely endanger the maintenance of
international peace and security.

15. Chapter VI: Peaceful
settlement of disputes
• States may refer a dispute to the Security Council (art 35).
◦ Non-member states can refer dispute, provided they accept the
obligations of articles 2(3) and 33 (pacific settlement)
◦ Note that General Assembly also has power to consider disputes
referred to it, but will defer to SC where both bodies are involved
(see also arts 11 & 12)
• SC can recommend appropriate procedures or methods of
adjustment in response to dispute (art 36)
◦ Taking into account measures already adopted by parties
◦ And bearing in mind general rule that legal disputes should go
before the ICJ
◦ Recommendations are not binding (compare decisions under Ch VII
which are legally binding).

16. Peaceful settlement of
disputes cont/…
If States fail to resolve a dispute under art 33 they
have obligation to refer the matter to SC (art 37).
◦ If SC deems that situation endangers peace and
security, may decide to take action under art 36
◦ Many UN peacemaking and assistance missions are
exercises of art 36 power.
If States request, SC can make recommendations to
the parties for settlement of the dispute (art 38)

17. Recommendations for peaceful
settlement of disputes (art 36)
SC can recommend various action to help resolve a dispute:
◦ Establishment of fact-finding and assistance missions;
◦ Facilitating political settlement and dialogue aimed at achieving
national reconciliation;
◦ Encouraging parties to the dispute to negotiate a ceasefire or peace
agreement;
◦ Calling for elections to promote reconciliation and reinforcement of
democratic process. Peace agreements often set out plans and
timetables for elections or establishment of representative government;
◦ Working with Secretary-General to set up UN Missions which will
oversee and support elections;
◦ Calling on governments to assist the peaceful return of refugees and
internally displaced persons;
◦ Establishing peacemaking missions to support diplomatic solutions and
post-conflict peacebuilding missions.

18. Security Council Chapter VII Powers
• Security Council has greater powers under Chapter VII to take
action where breach of international law represents threat to
international peace and security.
• Where this involves use of force it will be exception to
prohibition in art 2(4).
• Powers in Ch VII triggered by existence of threat to
international peace and security - art 39:
‘The Security Council shall determine the existence of any
threat to the peace, breach of the peace, or act of aggression
and shall make recommendations, or decide on what measures
shall be taken in accordance with articles 41 and 42, to
maintain or restore international peace and security.’

19. Art 39: threat to international
peace and security
• SC must make determination that situation
represents a threat to international peace and
security
• Art 2(7): UN shall not intervene in the domestic
jurisdiction of any state – except under Ch VII
• So if the matter is an internal crisis, must make
determination under article 39 that crisis
threatens international peace & security.
• Security Council will pass a resolution indicating
the outcome of its determination.

20. Art 39 cont/…
• Use of force or act of aggression will clearly
satisfy art 39
• Also extends to threats to the peace.
◦ Consistent with Art 2(4) prohibition on threats of the
use of force
◦ No definition of what constitutes a ‘threat’ but has been
applied to mass atrocities and repression of a people by
its government (even where those events are internal).

21. Art 40: Provisional measures
• Usually temporary measures to enable SC time to deliberate further.
• May be in the form of recommendations (non-binding) or decisions
(binding on UN members per art 25).
• Often combined in resolution which contains art 39 declaration, and often
include a warning that if provisional measures are not complied with SC
will review the situation and take further steps.
‘In order to prevent an aggravation of the situation, the SC may, before
making the recommendations or deciding upon the measures provided for
in Art 39, call upon the parties concerned to comply with such provisional
measures as it deems necessary or desirable. Such provisional measures
shall be without prejudice to the rights, claims, or position of the parties
concerned. The SC shall duly take account of the failure to comply with
such provisional measures.’

22. Art 40: provisional measures
cont/…
Examples may include request for
◦ withdrawal of armed forces;
◦ cessation of hostilities;
◦ disarmament of militias;
◦ conclusion or observance of a ceasefire;
◦ negotiation of differences and disputes;
◦ compliance with obligations under international humanitarian
law;
◦ creation of the conditions necessary for unimpeded delivery of
humanitarian assistance; and
◦ cooperation with peacekeeping efforts and humanitarian
assistance.

23. Art 41: Non-forcible measures
• Recall art 40: ‘The SC shall duly take account of the failure to comply with such
provisional measures.’ Art 41 measures won’t usually be taken if states are
complying with art 40 provisional measures.
• Economic sanctions are common method:
◦ call upon other UN members to prevent import of commodities or products
originating from offending state;
◦ And to prevent activities within their territories or by their nations which would
promote or facilitate trade with offending state;
◦ Often particular limitations on trade of weapons and other military equipment.
SC will monitor how states are complying with sanctions
‘The SC may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air,
postal, telegraphic, radio and other means of communication, and the
severance of diplomatic relations.’

24. Art 42: Forcible measures
(Collective Security)
• Doesn’t require that SC use art 41 measures first, but must be satisfied that they
would be inadequate.
• If it has imposed art 41 measures, needs to allow adequate time to be satisfied
that they have proved inadequate.
• Collective security measures can include:
◦ Sending in troops, attacking military facilities, destroying defensive powers
◦ Controlling military, economic & natural resources to prevent future aggression
• Collective security occurs by SC requesting that states which are ‘able and willing’
take ‘all necessary means’.
‘Should the SC consider that measures provided for in art 41 would be
inadequate or have proved to be inadequate, it may take such action by air,
sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and
other operations by air, sea, or land forces of Members of the United Nations.’

25. Example: Libya
A number of different measures implemented by Security
Council in order to restore peace and security in Libya
Resolution 1970 (26 February 2011)
◦ established arms embargo;
◦ Imposed asset freeze
Resolution 1973 (17 March 2011)
◦ Demanded immediate cease fire and end to violence against
civilians;
◦ Authorised states to take all necessary measures to protect
civilians, excluding a foreign occupation force
◦ Established no-fly zone – states authorised to take measures to
enforce compliance
◦ Enforcement measures for arms embargo from resolution
1970

26. Libya cont/…
19 March 2011 – intervention began (naval blockade + air
strikes against military targets).
Coalition of states, with NATO assuming command over
operation by end of March.
Resolution 2009 (September 2011)
◦ Established UN Support Mission for Libya (UNSMIL)
Resolutions 2040 (12 March 2012), 2095 (14 March 2013)
and 2144 (13 March 2014) - extended mandate by 12
month periods – currently extended to 13 March 2015.