International Court of Justice: Does It Work?

On September 2013, the Colombian frigate ’20 de Julio’ departed from a shipyard in San Andrés island to the meridian 82 west, in the Caribbean, with several journalists on board. The frigate had one important mission: show to the world that the Colombian Navy was still patrolling the waters the International Court of Justice (ICJ) had decided to give to Nicaragua.

Not long before, the ICJ published its final verdict on the first of three complaints Nicaragua had filled against Colombia regarding a dispute on maritime borders. The statement, issued by the ICJ, gave the right to Nicaragua to exploit the marine resources of more than 20.000 square meters of ocean that once belonged to Colombia.

As the ’20 de Julio’, crafted in a Colombian shipyard, was approaching the meridian 82 west, another military frigate with the Colombian flag appeared in the horizon. The ‘ARC Almirante Padilla’, built in the Howaldtswerke (Germany), cut the distance between the vessels and, within minutes, it was standing very close to the escort frigate.

Stationed in the meridian 82 west, still considered by Colombia the maritime border with Nicaragua despite the ICJ’s statement had drawn new borders amongst the two nations, the two grey military frigates started patrolling the area.

A helicopter was deployed from the ‘Almirante Padilla’ while never-ending blue waves moved the vessels from one side to another. “Make some room! The helicopter will land in this frigate”, a deck officer shouted to the journalists standing on the ‘20 de Julio’.

The helicopter landed; from it, the President of Colombia Juan Manuel Santos got off. In that forgotten place, where only industrial fishing ships and Colombian military vessels arrive, Santos announced that the statement of the ICJ was inapplicable as long as there wasn’t a new multilateral treaty with Nicaragua and, therefore, Colombia would continue to exercise sovereignty on those waters.

Colombia was no longer going to accept the judgements of the ICJ and, until now there hasn’t been any repercussions for not accepting the ICJ’s statement, supposedly of mandatory compliance.

Why has the ICJ not done anything regarding Colombia’s position towards its statement? To what extent does the ICJ have the power to enforce its own statements and guarantee the compliance of them?

As far as it has happened, while Colombia has been benefited from not accepting the statement of the ICJ, the international institution –and the world order- faces an enormous problem in terms of stability: as long as the ICJ’s statements are not complied, states will lose credibility on the international institution’s power as a peaceful dispute-settler.

Lack of will? Consent-based laws in the inter-state relations

“Colombia will abide to the sentence of the ICJ but it will not comply with it” where the words the President of Colombia said in response to the ICJ’s 2012 statement, regarding the dispute between Colombia and Nicaragua. This response illustrates a bitter truth: the consent-based laws used by the ICJ as normativity can only be applied as long as states have the will to accept those terms.

In order to be judged by the ICJ, the state must first accept the jurisdiction of the Court, most of the times by signing a multilateral treaty. Colombia accepted it, but even if states accept the jurisdiction of the ICJ, there are no guarantees that states will comply with the ICJ’s statements. This happens because, according to the international law, each state has the power to self-determine its behavior on the international scenario.

Although it could be thought that abiding to a sentence will consequently lead to the compliance of it, the arbitration expert Aloysius Llamzon thinks differently; he supports the idea that the “acceptance of the ICJ’s jurisdiction must be de-linked from the compliance of states”.

This idea, had strong supporters within the ICJ. The now-retired Judge Shigeru Oda questioned the usefulness of the Court when states don’t have the will to apply the statements. “Not a great deal can be expected in terms of meaningful development of the international judiciary from such an appeal unless the parties in dispute in each individual case are genuinely willing to obtain a settlement from the Court”, Oda explained in a statement of 2000, when he was still active.

According to the response given by Colombia after the statement of the ICJ was released, even if the international institution was ordering the country to change the borders, this only could happen when a multilateral treaty with Nicaragua was 1. signed by the President, 2. approved by the Congress, and 3. revised by the Constitutional Court.

This interpretation privileged the internal power and the self-determination of the state. Whenever there are objections within a case presented to the ICJ, as it happened in the Colombian case, it is most likely that the statement will not be applied by the respondent states.

The compliance of the statement then becomes a sneaky result to achieve. However, Colombia is not alone in the path of becoming an international outlaw; according to Llazmon’s work, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’, there has been several cases in which states didn’t comply with the ICJ’s statement, although they had already approved its jurisdiction to judge over the disputes.

Compulsory jurisdiction with no compliance results

Since its foundation as free nations, the Caribbean countries have mostly settled their disputes through the use of diplomacy and multilateral treaties.

This tendency led many Latin American countries to sign the Pact of Bogotá of 1948, Colombia and Nicaragua included. The multilateral treaty, also known as American Treaty of Pacific Solutions, gave to the ICJ compulsory jurisdiction to settle disputes amongst countries that had accepted and ratified the jurisdiction of the Court.

The compulsory jurisdiction, in essence, gives the ICJ the capacity to judge on cases instituted by a state against another signatory country. But this is not the only way the ICJ can judge over disputes amongst countries: the non-signatory states, whom don’t accept the compulsory jurisdiction of the ICJ, are free to present a case by special agreement. According to Llazmon, most recent cases have proven that states’ compliance with the statements of the ICJ is achieved “regardless of the manner by which jurisdiction was acquired”.

However Oda thinks differently. According to the judge, the fact that many of the cases are instituted by compulsory jurisdiction is a reason of the lack of compliance with the ICJ’s statements. As Llazmon explained, Oda’s position “stemmed from a belief that cases unilaterally instituted by Applicant States through the Court’s compulsory jurisdiction usually resulted in objection by the Respondent State, which would then result in non-compliance with the final judgment”.

In fact, as Oda explained, during his years as a judge –from 1976 to 1999-, from 51 cases received by the Court, there was “only two cases brought by unilateral application where a judgement on the merits was handed down”: the ‘1979, United States Diplomatic and Consular Staff in Tehran’, and the ‘1984, Military and Paramilitary Activities in and against Nicaragua’. In both cases, however, the judgements were not complied with by the respondent states.

On the other hand, the judge believed that cases instituted by special agreement, where states agreed beforehand to have the ICJ adjudicate over that specific dispute, would be easily complied with.

Such was the case with the North Sea Continental Shelf, held by Germany against Denmark and the Netherlands in 1969. In that case, analyzed by the Court through special agreement, the states argued which were the ‘correct’ laws to divide the North Sea in the corresponding exclusive economic zones.

With the principle of ‘equity beyond the law’, the ICJ opted to grant more territory to Germany than the one it would have been granted by using equidistant boundaries to divide the disputed area.

Once the decision of the ICJ was made, the three states recognized it and the dispute was settled.

The final outcome on this case, however, was only possible because the acceptance of the states was already explicit when they decided to settle the dispute through the ICJ.

Globally speaking, there were 105 cases filled in the ICJ until the end of 2004. Of the total, only 19 were instituted by special agreement. Interestingly enough, cases initiated by special agreement are more prone to be complied with by states than those brought through compulsory jurisdiction. In the work ‘Judicial Independence in International Tribunals’, the authors stated that the compliance rate of cases instituted by special agreement was 85.7 per cent. On the other hand, verdicts based on the acceptance of the ICJ’s compulsory jurisdiction only achieved less than 60 per cent of compliance.

The ICJ was born as an idealistic solution to settle disputes between states. But, as it has been shown, the acceptance of the compulsory jurisdiction by states doesn’t guarantee a dispute settlement. Moreover, the rejection of the ICJ’s statements directly affects the Court’s credibility, and makes the future of dispute settlement through peaceful means highly uncertain.

Enforcement through the Security Council: fading into oblivion

When created, the ICJ was supposed to be one of the strongest mechanisms to settle disputes through the use of the international law. This basis for inter-state understanding, however, had to be backed by some type of enforcement mechanism. Because of this, it was decided that whenever a verdict was issued the instigating party would be able to take his claim to the Security Council if the respondent state decided to reject the ICJ’s statement.

On paper, it worked. However, since the consolidation of the ICJ as the judicial arm of the United Nations, “the Security Council has never employed its powers (as a compliance enforcer) even on occasions of clear non-compliance”, Llazmon confirmed.

And even if the Security Council starts applying its enforcing power, the final decision will be tied to the political view of the its current members, both permanent and non-permanent. This interpretation of the enforcement power, according to Llazmon, “sees compliance much more like a political issue involving international peace and security than a legal one”.

The UN itself, being the primary exponent of the ICJ as a mechanism for dispute-settling, is aware of the compliance problems the judicial institution is facing nowadays; the 2005 report of the UN Secretary-General stated that “resources (to enforce dispute settlement) remain scarce (…) there is a need to consider means to strengthen the work of the Court”.

Colombia has recurrently denied the access of Nicaragua to the disputed waters and still patrols the area. If Colombia is able to deny the compliance of a statement of the ICJ without repercussions, how powerful the statements of the ICJ really are?

The compliance of the ICJ's statements can't be measured by the acceptance of the compulsory jurisdiction of the ICJ, as it has been proven. Since its foundation, the enforcement power of the ICJ relies on states applying to the counseling of the Security Council; therefore, the capacity to enforce verdicts is tied up to the political interests within the Security Council.

This factor, at some point, can be read by states as a source of non-credibility on the ICJ. Without the credibility of states on the ICJ, it’s more likely that states will start using other means for settling their disputes rather than international law.

Lack of real power to enforce

Three years after the ICJ published its sentence, several events demonstrate that Colombia is still reluctant to comply with the statements of the ICJ . “The ARC frigates (Colombian military vessels) continue to do regular patrols in the disputed Caribbean”, an active officer of the Colombian Armed Forces confirmed. The officer, a non-official spokesman, preferred to not be named in this story but said that the Colombian Navy will continue to do patrols in the disputed area until a new order by the President is given.

Not long ago, in February 2016, 73 Nicaraguan fishermen were located by the Colombian Navy in the territorial waters of Serrana Cay, north of the Colombian island of San Andrés. This cay, although Colombian, is surrounded by the disputed waters. It is then logical to think that in order to reach the cay, it’s necessary to trespass the disputed territory.

This assumption was confirmed by residents of the island. “My brother, a fisherman, goes every month 15 days in a row to do fishing rounds in Quitasueño cay”, said Emanuela Taylor, resident of the island.

This cay, enclaved in the disputed territory as Serrana cay, is used by the Colombian fishermen as one of the preferred fishing areas. In order to get there, “the fishermen never ask for permission to the Nicaraguan authorities; those waters still belong to the Archipielago”, Taylor explained.

Born and raised in Providencia, Taylor said that the only change she’s seen on the disputed area after the ICJ’s statement is that “there’s more presence of the Colombian government”.

“(Colombian) sovereignty will be defended to the last centimeter and until death”. This words, said by the President of Colombia, completely framed the new position of Colombia towards the ICJ’s statements. The presidential discourse, in March 2016, was a direct response to the acceptance by the ICJ of two new complaints Nicaragua filled against Colombia in 2013.

So, to what extent does the ICJ have power to force states to fulfill the mandates it releases?

The ICJ, which was contacted for this article but no answer was received, only has the power states allow it to have. If there's no will amongst states, the statements will fail to settle disputes amongst countries. Moreover, if the ICJ wants to improve its compliance rates, the ICJ statute must be restructured; this would allow both to create more mechanisms of enforcement within the ICJ and to improve the access of the instigating states to the only enforcing mechanism that currently exists: the Security Council.