Compliance Adjudication at the ICJ – The Alleged Violations Case

The ICJ should soon deliver judgments on Preliminary Objections in the two most recent Nicaragua v Colombia cases. Both cases are closely related to the 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v Colombia). In one of them, Nicaragua repeats a pleading the Court rejected in the 2012 Judgment for procedural reasons – that the maritime delimitation take into account Nicaragua’s proposed extended Continental Platform. In the other, Alleged Violations of Sovereign Rights, Nicaragua requests the Court, first, to declare that Colombia has violated Nicaragua’s maritime sovereignty as established in the 2012 judgment; second, that Colombia ‘is bound to comply with the Judgment of 19 November 2012, wipe out the legal and material consequences of its internationally wrongful acts, and make full reparation for the harm caused by those acts’.

International Courts and Compliance Jurisdiction

Alleged Violations is the first attempt in half a century to directly bring to the ICJ a dispute concerning compliance with one of its judgments. This is less surprising once one finds out that, in the 1951 judgment in Haya de la Torre, the ICJ refused to provide meaningful guidance regarding the implementation of its 1950 Asylum judgment, on grounds that implementation of judgments must be based ‘only on considerations of practicability or political expediency’, and therefore is ‘not part of the Court’s judicial function’. Subsequent compliance cases (discussed below), other than the sui generis case of Nuclear Tests II, were ‘disguised’ as requests for interpretation, most clearly in Avena and Temple.

Alleged Violations therefore gives the Court the opportunity to re-assess its jurisprudence on the matter, and establish that questions regarding compliance with and implementation of judgments are legal questions, as justiciable as any other. One question to be asked is whether the ICJ should do so; assessing a compliance dispute would imply an acknowledgement from the Court that its decisions will not always be complied with. The Court usually fends off discussions of prospects of compliance by employing the Chorzów Factory formula: judicial decisions are binding and the Court ‘neither can nor should contemplate the contingency of the judgment not being complied with’.

Judgments are, of course, binding. However, it does not follow that international courts should refrain from examining questions of compliance. On the contrary, over the past quarter of a century the vast majority of international courts and tribunals have interpreted their mandates as permitting them to examine compliance issues. The Inter-American Court of Human Rights is probably the most striking case, having developed from a very thin legal basis (a provision of the American Convention on Human Rights tasking it with reporting on compliance to the OAS General Assembly) a sophisticated mechanism for judicial monitoring of compliance. The European Court of Human Rights, which initially refrained from deciding compliance cases on grounds that these were entrusted to the Committee of Ministers, has more recently opened the way for compliance disputes, on grounds that implementation failures may lead to a ‘new breach of the [ECHR]’, or interpreting persistent breach as not fully covered by the original judgment. In the WTO, the GATT-era practice of compliance panels was fully codified in the 1994 Dispute Settlement Understanding. And, in UNCLOS Annex VII arbitration, parties may specifically refer to arbitral tribunals, after they have issued their final award, any ‘controversy’ arising between them ‘as regards the interpretation or manner of implementation of the award’.

The ICJ and Compliance – ‘Inherent Jurisdiction’?

Interestingly, Nicaragua requests the ICJ not only to reject the objection that res judicata makes compliance judgments pointless, but also to affirm ‘inherent jurisdiction’ over compliance disputes. This request results from the poor drafting of Article 61 of the Pact of Bogotá, which sets out the effects of denunciations. Article 61(1) provides that states may denounce the Pact ‘upon one year’s notice, at the end of which period it shall cease to be in force with respect to the state denouncing it’. Article 61(2), however, states that ‘[t]he denunciation shall have no effect with respect to pending procedures initiated prior to the transmission of the particular notification’.

Based on the first paragraph, Nicaragua contends that the Pact remains able to ground jurisdiction for a year following denunciation. Invoking the second paragraph, Colombia argues that its denunciation, notified to the OAS on 27 November 2012, took effect immediately as regards the jurisdiction of the Court, and only ‘pending procedures’ are unaffected. In Colombia’s view, therefore, the only way to give effet utile to the second paragraph is to interpret Article 61 as meaning that all the provisions of the Pact stay in force for a year after denunciation, except for the jurisdictional ones. In order to strengthen its case, Nicaragua is grounding its request not only on the Pact but also on an alleged ‘inherent jurisdiction over disputes arising from the non-compliance with its judgment’.

Nicaragua’s Grounds and ICJ Jurisprudence

This ground of ‘inherent jurisdiction’ may seem far-fetched; the predominant view is that ICJ post-judgment jurisdiction is restricted to the possibilities explicitly set out in the ICJ Statute, namely interpretation (Article 60) and revision (Article 61). The ICJ Statute contrasts with treaties that explicitly allow compliance adjudication, including not only trade agreements modelled on GATT/WTO rules (such as NAFTA and Mercosur) but also UNCLOS Annex VII (‘manner of implementation’) and the 1907 Hague Convention (‘execution of the Award’). Human rights courts, on the other hand, have compulsory jurisdiction over a system of norms, meaning the question is not one of jurisdiction but one of admissibility. By contrast, for the ICJ its very jurisdiction is dependent on continued consent of states.

And yet, considering Nicaragua’s claim with an open mind, one cannot help feeling that the general hypothesis underlying the instinctive rejection of compliance jurisdiction – that only interpretation and revision are permitted following a ‘final’ judgment – has significant flaws. The most obvious is that it fails to explain the jurisdiction of the Court in Nuclear Tests II. This jurisdiction was grounded on a provision of the 1974 Nuclear Tests Judgment, in which the Court established that France had committed, through a unilateral, out-of-court declaration, to ceasing atmospheric nuclear tests. It then stated:

if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request.

As the Court noted in the 1995 Order in Nuclear Tests II, this paragraph establishes a ‘special procedure’. As sui generis as this is, the fact remains that the Court’s jurisdiction was not grounded on any of the traditional means recognized in the ICJ website – special agreement, treaties and conventions, the optional clause, and forum prorogatum – but on a previous decision of the Court. Significantly, the Court specified that the denunciation of the General Act would have no effect on a subsequent dispute.

Perhaps Nuclear Tests II may be dismissed as a unique case. However, there is another possibility of post-judgment adjudication, available to parties to the original judgment and not provided for in the statute: the so-called ‘compensation phase’ of disputes. In a string of judgments going back to Chorzów Factory and including Corfu Channel, Diplomatic and Consular Staff, Military and Paramilitary Activities, Gabčíkovo-Nagymaros, Diallo, and DRC v Uganda, the Court refrained from adjudicating on requests for compensation, invited the parties to enter into agreement on the matter, and established by fiat a post-merits compensation stage. Without impinging on the ‘final’ character of the judgment on the merits, this empowers the parties to demand from the Court, without any time limitations, a new judgment on reparations. In Corfu Channel and Diallo, this procedure led to whole new judgments on compensation. In DRC v Uganda, the DRC filed a new application (currently pending judgment) almost ten years after the judgment on the merits.

But can the basis for post-judgment jurisdiction in these cases be the mere fact that the Court decided to leave the case open? In this case, the fact that in its 2012 Judgment the ICJ preferred not to consider the issue of reparation would mean that it also deprived Nicaragua of an important subsequent remedy. Should the Court have discretion to determine whether post-merits adjudication is allowed, based on whether it decides not to make a decision on reparation, but ‘reserves for this purpose the subsequent procedure’, or decides it will not ‘seek to ascertain’ reparation?

Conclusion

The most likely outcome of Alleged Violations is that the Court will hold that the Pact of Bogotá was still fully in force for Colombia when Nicaragua filed its dispute, and will accordingly refrain from making a decision on its ‘inherent jurisdiction’ over compliance cases. This is in line with the cautious approach the ICJ takes to its jurisdiction and to state consent, and it may be that it is up to states to design dispute resolution clauses to prevent opportunistic denunciation.

Compliance jurisdiction, on the other hand, would preclude states from evading their obligation to comply by changing the wording of their consent, as Japan did following the Whaling judgment (see Michael Becker’s piece). In this case, Australia may of course repeat Mexico in Avena and Cambodia in Temple, and file a compliance case in the guise of a request for interpretation. But an interpretation carries less weight than an outright condemnation for non-compliance. For this reason, in a growing number of cases, compliance adjudication is made an inherent part of jurisdictional clauses. Whereas the ICJ will probably not take the step of making this a more general feature of its adjudication process, this could make the Court comparatively less attractive than the growing number of tribunals allowing compliance adjudication for applicants who fear the defendant may attempt to subsequently escape judicial oversight.