ISLAMABAD: The International Court of Justice (ICJ), which has just heard the case relating to Indian spy Kulbhushan Jadhav, sentenced to death by Pakistan, says its judgements are binding on the states on the disputes between them, but there are instances when some countries do not accept or enforce its judgements.
The ICJ cites Article 94 of the UN Charter which provides that each UN member undertakes to comply with the ICJ decision in any case to which it is a party. Judgements are final and without appeal. If there is a dispute about the meaning or scope of a judgement, the only possibility is for one of the parties to make a request to the ICJ for an interpretation. In the event of the discovery of a fact hitherto unknown to the ICJ which might be a decisive factor, either party may apply for revision of the judgement.
According to the ICJ, as regards advisory opinions, it is usually for the UN organs and specialised agencies requesting them to give effect to them or not, by whichever means they see fit.
In October, 2018, the United States rejected an ICJ ruling mandating that American sanctions allow exemptions for exports of humanitarian and civil aviation supplies to Iran, saying those protections are already in place. Top American officials chastised what they called Tehran’s “abuse” of the ICJ, announcing the US would abandon the “optional protocol” under the UN’s Vienna Convention on Diplomatic Relations and a 63-year old “amity treaty” with Iran.
The move highlighted the Trump administration’s focus on sovereignty over multilateralism, deepening worries among Western allies over the president’s disparagement of international institutions. Thus it continued its vocal rejection of multilateral bodies after it withdrew from an ICJ protocol and pulled out of a 1955 friendship treaty with Iran.
The ICJ decision said Washington must ensure its sanctions don’t hit humanitarian aid or civil aviation safety for Iran--a ruling that is binding but cannot be enforced.
One top American official accused the ICJ of being “politicised and ineffective.” The decision to withdraw will limit US exposure to ICJ rulings, which will simultaneously restrict its own ability to bring cases against other countries.
The ICJ ruling is binding on the US as a matter of international law. However, one scholar opined if the US simply disregards it, there is little that either Iran or the ICJ can do to enforce it.
It is stated that the existence of inadequate measures and process for the enforcement of ICJ decisions is attributable to the growing concern and trepidation of non-enforceability of ICJ decisions, hence the need to seek an approach and arrangement that will address this flaw.
Some argue that ICJ decisions be enforced through regional organisations and specialised agencies. It is not in doubt that the enforcement of the judicial decisions of the ICJ through the UN itself or any of its organs is inadequate and not enough. Therefore, in order to bridge the gaps of these inadequacies, it is necessary to resort to the use of other regional organisations and specialised agencies.
The UN Charter urges the parties to any dispute which is most likely to endanger international peace and security to allow settlement through judicial settlement and resort to regional agencies or arrangements.
The ICJ has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings. This task is the preserve of national courts, the ad hoc criminal tribunals established by the UN, mandated to take over residual functions from the International Criminal Tribunal for the former Yugoslavia (ICTY) and from the International Criminal Tribunal for Rwanda (ICTR)) or in cooperation with it and also of the International Criminal Court, set up under the Rome Statute.
The jurisdiction of the ICJ is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS). The ICJ is not a supreme court to which national courts can turn, and it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.