Available in Russian
Author: Ilia Rachkov
DOI: 10.21128/2226-2059-2024-4-85-110
Keywords: International Court of Justice; International Criminal Court; ICSID; International Tribunal on the Law of the Sea; arbitral tribunals; World Trade Organization; European Union; diplomatic protection; human rights; retaliation; reprisals; retorsion; counter-measures
There is an opinion among the layman (and among lawyers as well) that “international law is not law at all” or “international law does not work”. In support of these statements, those who express them refer, in particular, to the fact that in international relations there are no global policeman who could make sure that international obligations be fulfilled. This also applies to decisions of international courts and arbitral awards: in fact, there is no global agency of court marshalls/bailiffs. Nor is there a way to declare a state bankrupt if such state does not honor a judgment of an international court. However, the phenomenon of international law is that, as a rule, states that an international court or arbitral tribunal orders to undertake certain actions eventually do fulfill these decisions. True, sometimes it takes a very long time: for example, although the International Court of Justice found Albania liable for the explosion of British warships in the Corfu Channel back in 1946, Albania did not follow this judgment until the 1990s — i.e. until the fall of the communist regime in this country. In response, the United Kingdom withheld monetary gold captured in Albania by Italy during World War II, then taken from Italy by Nazi Germany, and finally from Germany by the UK. This article provides an overview of the remedies available in cases of non-enforcement of decisions of various international courts and arbitral tribunals. These remedies vary greatly, including in terms of their effectiveness. For simplicity, all such remedies can be divided into general and specific ones. In the process of enforcement of decisions of international courts and arbitral tribunals, the main tension arises between the law and politics, since the disputes themselves considered by these bodies have a pronounced political overtone.
About the author: Ilia Rachkov – Candidate of Sciences (Ph.D.) in Law, Adjunct Professor, Department of International Law, Higher School of Economics, Moscow, Russia .
Citation:
Rachkov I. (2024) Sredstva pravovoy zashchity v sluchae neispolneniya resheniy mezhdunarodnykh sudov i arbitrazhey [Ways and means of legal protection against non-enforcement of decisions rendered by international courts and arbitral tribunals]. Mezhdunarodnoe pravosudie, vol.14, no.4, pp.85–110. (In Russian).
References
(2017) Expertnoe obsuzhdenie postanovleniya Mezhdunarodnogo Suda OON o primenenii vremennykh mer po delu Ukraina protiv Rossii [Expert discussion of the Order of the International Court of Justice on indication of provisional measures in the case of Ukraine v. Russia]. Mezhdunarodnoe pravosudie, no.3, pp.119–135. (In Russian).
Collier J., Lowe V. (1999) The Settlement of Disputes in International Law: Institutions and Procedures, Oxford: Oxford University Press.
Gathii J.T. (2018) The COMESA Court of Justice. In: Howse R., Ruiz-Fabri H., Ulfstein G., Zang M.Q. (eds.) The Legitimacy of International Trade Courts and Tribunals, Cambridge: Cambridge University Press, pp.314–348.
Illy O. (2018) The WAEMU Court of Justice. In: Howse R., Ruiz-Fabri H., Ulfstein G., Zang M.Q. (eds.) The Legitimacy of International Trade Courts and Tribunals, Cambridge: Cambridge University Press, pp.349–364.
Llamzon A.P. (2007) Jurisdiction and Compliance in Recent Decisions of the International Court of Justice. European Journal of International Law, vol.18, no.5, pp.815–852.
Marotti L. (2020) Aspetti problematici dell’Accordo di estinzione dei trattati bilaterali di investimento tra Stati membri dell’Unione europea. Rivista di diritto internazionale privato e processuale, vol.56, no.4, pp.843–877.
O’Connell M.E. (1990) The Prospects for Enforcing Monetary Judgments of the International Court of Justice: A Study of Nicaragua’s Judgment Against the United States. Virginia Journal of International Law, vol.30, pp.891–940.
Rachkov I. (2015) Resheniya Mezhdunarodnogo Suda po delu o khrame Prea Vikhear [Decisions of the International Court of Justice in the case regarding the Temple of Preah Vihear]. Mezhdunarodnoe pravosudie, vol.5, no.4, pp.24–34. (In Russian).
Rachkov I.V. (2019) Vsemirnaya torgovaya organizatsiya: pravo i instituty [World Trade Organization: law and institutions], Moscow: Institut prava i publichnoy politiki. (In Russian).
Rachkov I., Rachkova E. (2022) Delo Gayana protiv Venesuely: o tom, kak proshloe ne dayot zhit' v nastoyashchem: Vmesto predisloviya [Guyana vs. Venezuela: how the past prevents us from living in the present: Instead of a foreword]. Mezhdunarodnoe pravosudie, vol.12, no.1, pp.113–121. (In Russian).
Reisman W.M. (1969) The Enforcement of International Judgments. American Journal of International Law, vol.63, no.1, pp.1–27.
Rosenne S. (1957) The International Court of Justice: An Essay in Political and Legal Theory, Leiden: A.W.Sijthoff.
Schachter O. (1960) The Enforcement of International Judicial and Arbitral Decisions. American Journal of International Law, vol.54, no.1, pp.1–24.