I am at the American Society of International Law’s Annual Meeting and attended a panel on the domestic enforcement of decisions of international tribunals. The panelists, which included distinguished presenters Professors Lori Fisler Damrosch of Columbia University and Andreas Paulus of Gottingen, spoke about the Medellin case of the US Supreme court, about the Kadi decision of the European Court of Justice and comparative perspectives from Canada and elsewhere. Listening to the presentations – which were very good – two questions occurred to me:
1) There must be more practice regarding the domestic implementation of decisions of the International Court of Justice and other international tribunals than is commonly assumed. In Medellin, Chief Justice Roberts stated that:
Our conclusion that Avena does not by itself constitute binding federal law is confirmed by the “postratification understanding” of signatory nations. . . . [N]either Medelln nor his amici have identified a single nation that treats ICJ judgments as binding in domestic courts. … [T]he lack of any basis for supposing that any other country would treat ICJ judgments as directly enforceable as a matter of their domestic law strongly suggests that the treaty should not be so viewed in our courts.
It may well be that Chief Justice Roberts is right that no nation treats ICJ judgments as binding in domestic courts. But I wonder whether that is actually so. In particular, it seems to me that looking at the practice of those States that have been involved in territorial and boundary disputes before the ICJ (or international arbitration) would tell us much about whether States regard ICJ decisions as automatically binding in their domestic legal systems. Whenever the ICJ or a tribunal rules that a territory which was previously under the administration of one State actually belongs to another (eg Cameroon v. Nigeria or Temple of Preah Vihear), the decision will need to be implemented in domestic law. In general, there has been good compliance with ICJ decisions on territorial/boundary disputes. So, the question is how have these decisions been implemented?Have the losing States passed domestic legislation or have they just taken the necessary steps for implementation without passing such legislation. In order to have full compliance, the courts of these states will need to consider that the territory in question is no longer within the jurisdiction of their State.
2) I wonder whether there are any international law impediments to the enforcement in national courts of monetary compensation awarded by international tribunals against a State. I believe that the ICJ has only awarded monetary compensation in one case: The Corfu Channel Case (its first contentious case). Albania (the defendant) in this case refused to comply for over 40 yrs. Perhaps this is part of the reason why the court has not awarded compensation since. However, the European Court of Human Rights awards compensation regularly. The International Tribunal for the Law of the Sea awarded monetary compensation in its one substantive merits decision (The MV Saiga Case) though it took a while for the losing party (Guinea) to pay up. Can the winning party go to a domestic court to seek enforcement? If enforcement is sought in the courts of another State (or the courts of the winning State), then the immunity from execution may be an issue. However, under interntional law, there will be no immunity from execution if the property that is sought to be attached in order to enforce the judgement is in use or intended for use for commercial purposes (Art. 19(c) UN Convention on Jurisdictional Immunity of States and their Property. Absent immunity the only other bar I can think of would be the principle of justiciability enunciated by the English House of Lords in Buttes Gas v Hammer that the transactions of States inter se ought not to be adjudicated on by domestic courts. This is a principle that has some counterparts in other countries. However, in the sort of enforcement proceedings contemplated here, the domestic court is not adjudicating on the rights and obligations of the States in dispute. Those will have been determined by the international tribunal.
Perhaps if it is clear that decisions of international tribunals awarding monetary compensation are enforceable, tribunals like the ICJ will become bolder in awarding them.