Academic journal article Proceedings of the Annual Meeting-American Society of International Law

A Comparative Look at Domestic Enforcement of International Decisions

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

A Comparative Look at Domestic Enforcement of International Decisions

Article excerpt

This panel was convened at 9:00 a.m., Thursday, March 26, by its moderator, Paul Stephan of the University of Virginia School of Law, who introduced the panelists: Lori Damrosch of Columbia University School of Law; Andreas Paulus of the University of Gottingen; Pierre-Hugues Verdier of Harvard Law School; and Ingrid Wuerth of Vanderbilt University Law School.

A COMPARATIVE LOOK AT DOMESTIC ENFORCEMENT OF INTERNATIONAL TRIBUNAL JUDGMENTS

Problems of compliance with international arbitral and judicial decisions have been with us for as long as such tribunals have existed. In general, the consensual foundations for the jurisdiction of international tribunals have ensured that the parties were in principle willing to have their disputes resolved by the tribunal and thus were usually prepared to carry out the resulting award or judgment. Commentators on international arbitration generally characterize the compliance record as favorable. (1)

Occasions when states refuse to carry out arbitral awards are rare, but when they do occur, states have sometimes asserted the nullity of the award on the basis of exces de pouvoir--that the arbitrators had gone beyond the terms of the parties' consent to submit the dispute. When the United States refused for fifty years to carry out the arbitral award in the Chamizal Tract dispute with Mexico, the stated reason was that the arbitrators had exceeded their authority.

From the record of nineteenth- and twentieth-century arbitrations, one can derive a rough generalization that also holds true for twentieth-century adjudication: the clearer the consent of the parties to submit their dispute to third-party settlement, the more likely they are to carry out the award or judgment. Instances of non-compliance with an award or judgment were often (though not invariably) cases in which the losing party contested the authority of the tribunal to render the challenged decision.

The consent-based jurisdiction of the Permanent Court of International Justice (PCIJ) allows us to confirm this generalization. Overall, the record of compliance with PCIJ judgments was strong. Authorities on the PCIJ maintain that there was no instance of a refusal to comply with its judgments, although there may have been one or two cases in which PCIJ decisions were not fully implemented. In Socobelge, (2) the PCIJ found Greece to be under an obligation to carry out a 1936 arbitral award; this obligation became the subject of proceedings within the Belgian domestic judicial system aimed at attaching Greek state assets within Belgium. (3)

When the PCIJ was reconstituted as the International Court of Justice (ICJ), the possibility of noncompliance was anticipated and an enforcement mechanism was envisaged in Article 94(2) of the UN Charter. From early in the Charter period, scholars began to write about other enforcement mechanisms, in case resort to the Security Council should be unavailing. Permanent member veto is the most obvious obstacle, but other legal and political reasons could also leave the prevailing party unable to take advantage of Article 94(2).

Unfortunately, one of the ICJ's first cases--Corfu Channel--entailed prolonged noncompliance. The Court's judgment obliged Albania to pay compensation, (4) but Albania refused to comply. The prevailing party, even though a permanent member of the Security Council, was not able to bring about a successful enforcement action, apparently because the Soviet Union would have vetoed any resolution that the United Kingdom might have introduced against Albania, (5) which in that period of the Cold War was a Soviet client state.

The United Kingdom thus turned its attention to monetary assets of Albania that might have been available to satisfy the Court's judgment. A substantial quantity of gold belonging to Albania came under the control of the Allies at the end of World War II. A commission was convened by the United Kingdom, United States, and France to determine what to do with these assets, under a procedure that led to a separate proceeding at the ICJ known as the Case Concerning Monetary Gold Removed from Rome in 1943. …

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