Reinforcing the ICJ’s central international role? Domestic courts’ enforcement of ICJ decisions and opinions

TY - CHAP

T1 - Reinforcing the ICJ’s central international role? Domestic courts’ enforcement of ICJ decisions and opinions

AU - Fikfak, Veronika

PY - 2015/1/1

Y1 - 2015/1/1

N2 - Introduction Compliance with judgments of the International Court of Justice (ICJ) is traditionally voluntary, states fulfilling their obligations under Article 94 of the UN Charter and Article 59 of the ICJ Statute to give force to binding and final decisions. Yet, increasingly the decisions rendered by the ICJ are becoming inward looking and domestic courts are encouraged to act as the natural enforcers of international decisions. In Avena, for example, the ICJ having held that the US had violated the Vienna Convention on Consular Relations 1963 (VCCR) by failing to provide consular protection in criminal proceedings to foreign nationals, ordered the US to undertake ‘review and reconsideration’ of such criminal convictions. In this context, the ICJ stated that the obligation to review and reconsider was particularly suited to the ‘judicial process’. The task was effectively one for US domestic courts. In Jurisdictional Immunities, in which the ICJ held that the failure of Italian courts to accord jurisdictional immunities to German nationals in civil proceedings in Ferrini was contrary to Italy's international obligations, the obligation imposed on Italy was to take appropriate measures to ensure Germany's immunity is enforced. In the absence of domestic legislation and until such legislation was enacted, providing for enforcement of the ICJ holding was a task particularly suited to domestic courts. They would be the ones to uphold the ICJ decision by ceasing to give effect to the Ferrini precedent. Even in Advisory Opinions questions have arisen as to the enforcement of the correct interpretation of international law. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ held that the construction of the barrier built by Israel was contrary to international law. When similar claims arose before Israel's domestic courts, the question was whether the domestic courts would implement such interpretation of international law and whether they would do so in spite of contradicting domestic precedent. Quick glances at these examples reveal that the links between domestic courts and the ICJ are closer than ever.

AB - Introduction Compliance with judgments of the International Court of Justice (ICJ) is traditionally voluntary, states fulfilling their obligations under Article 94 of the UN Charter and Article 59 of the ICJ Statute to give force to binding and final decisions. Yet, increasingly the decisions rendered by the ICJ are becoming inward looking and domestic courts are encouraged to act as the natural enforcers of international decisions. In Avena, for example, the ICJ having held that the US had violated the Vienna Convention on Consular Relations 1963 (VCCR) by failing to provide consular protection in criminal proceedings to foreign nationals, ordered the US to undertake ‘review and reconsideration’ of such criminal convictions. In this context, the ICJ stated that the obligation to review and reconsider was particularly suited to the ‘judicial process’. The task was effectively one for US domestic courts. In Jurisdictional Immunities, in which the ICJ held that the failure of Italian courts to accord jurisdictional immunities to German nationals in civil proceedings in Ferrini was contrary to Italy's international obligations, the obligation imposed on Italy was to take appropriate measures to ensure Germany's immunity is enforced. In the absence of domestic legislation and until such legislation was enacted, providing for enforcement of the ICJ holding was a task particularly suited to domestic courts. They would be the ones to uphold the ICJ decision by ceasing to give effect to the Ferrini precedent. Even in Advisory Opinions questions have arisen as to the enforcement of the correct interpretation of international law. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ held that the construction of the barrier built by Israel was contrary to international law. When similar claims arose before Israel's domestic courts, the question was whether the domestic courts would implement such interpretation of international law and whether they would do so in spite of contradicting domestic precedent. Quick glances at these examples reveal that the links between domestic courts and the ICJ are closer than ever.

UR - http://www.mendeley.com/research/reinforcing-icjs-central-international-role-domestic-courts-enforcement-icj-decisions-opinions

U2 - 10.1017/cbo9781139979498.013

DO - 10.1017/cbo9781139979498.013

M3 - Book chapter

T3 - A Farewell to Fragmentation: Reassertion and Convergence in International Law

SP - 343

EP - 368

BT - A Farewell to Fragmentation: Reassertion and Convergence in International Law

ER -