National Implementation of International Court Decisions
James AR Nafziger
- Rule of law — Administration of justice — Judicial review — Judicial power — International law — Individual rights
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. The effect or influence of an international court decision within a domestic legal system may be conditioned by any of several variables. Among these are internal and external political exigencies and pressures, the cogency or pertinence of a judgment, an internal openness or even need for definitive international authority or guidance to resolve an issue, and a general willingness to accept a judicial solution of the issue. Underlying all of these variables, however, are the foundations and requirements of unwritten constitutionalism or a written constitution within the domestic system (codified / uncodified constitutions). Both national and, in some federal systems, state constitutions may be determinative.
2. Within constitutional frameworks the ‘implementation’ of international court decisions generally means the process of carrying out, giving effect to, or being influenced by authoritative but not necessarily binding prescriptions of concrete measures to resolve an issue. This process may involve any of three phenomena: (1) the formal incorporation of an authoritative source into national law as a matter of compliance; (2) the transformation or conversion of the authority into a domestically receptive form for direct application; or (3) the force of persuasion by which international court decisions provide compelling guidance as nonbinding norms (see Shelton (ed)).
3. A few further definitions may be helpful. The term ‘national’ refers to both strictly national and, in the instance of some federal systems, constituent state implementation. The term ‘international’ is used to refer to both global and regional law such as that in Europe, the Americas, and Africa. Also, the normal interpretation of ‘court decisions’ would exclude arbitral awards as well as outcomes of dispute settlement by international institutions and agencies such as the World Trade Organization (WTO). Nevertheless, a consideration of such awards and decisions in Section D will be informative. Finally, the scope of the expected ‘implementation’ of an international court decision can vary from modest prescriptions of technical measures to bold requirements of political reform, for example, the redesign of judicial systems (see Kosar and Lixinski).
4. Constitutions generally do not provide explicitly for the direct incorporation of international court decisions into domestic law. The exceptions are typically qualified or explicitly limited in scope. For example, the Constitution of the Czech Republic provides that its ‘Constitutional Court shall rule on … measures essential for the implementation of a ruling by an international court, which is binding for the Czech Republic, unless it can be implemented in a different manner’ (Constitution of the Czech Republic: 16 December 1992 (as Amended to 14 November 2002) Art. 87(1)(i) (Czech)). Presumably, legislative or executive capacity to enforce an international court ruling would preclude its enforcement by the Constitutional Court. The Swedish Constitution, ‘to a limited extent’ provides for transfer of decision-making authority outside the framework of the European Union (EU), to, inter alia, an international court of law (Instrument of Government (SFS nr 1974: 152): 1974 (as Amended to 7 December 2010) Chapter 10, Art. 7 (Swed)). A corresponding provision in the Kosovo Constitution is weaker but more narrowly tailored to a specific international court, providing that ‘[h]uman rights and fundamental freedoms guaranteed by this Constitution shall be interpreted consistent with the court decisions of the European Court of Human Rights’ (Constitution of the Republic of Kosovo: 9 April 2008, Art. 53 (Kos)). The Brazilian and Chilean Constitutions merely acknowledge the jurisdiction of the International Criminal Court (ICC) (Constitution of the Federative Republic of Brazil: 5 October 1988 (as Amended to 15 September 2015) Art. 5 §4° (Braz); Political Constitution of the Republic of Chile: 8 August 1980 (as Amended to 20 October 2015) Transitory Provision Twenty-fourth (Chile)).
5. Constitutions often do not even provide explicitly for the direct incorporation of international law as a whole (application of international law in domestic legal systems). The main exception is in the instance of human rights law and its interpretation, especially in Europe (international human rights law and municipal law). For example, the Norwegian Constitution, quite simply without any reference to international courts, requires the state to ‘respect and ensure human rights as they are expressed in this Constitution and in treaties concerning human rights that are binding for Norway’ (Constitution of the Kingdom of Norway: 17 May 1814 (as Amended to 9 May 2014) Art. 92 (Nor)). Several constitutions explicitly specify applicable human rights treaties (see Constitution of the Argentine Nation: 23 August 1994, Art. 75(22) (Arg); Constitution of Bosnia and Herzegovina: 21 November 1995 (as Amended to 26 March 2009) Annex I (Bosn & Herz); Constitution of the Republic of Kosovo Art. 22 (Kos); Political Constitution of the Republic of Nicaragua: 19 November 1986 (as Amended to 29 January 2014) Art. 46 (Nicar)) (for other examples and general commentary, see ILA ‘The Domestic Implementation of Judgments/Decisions of Courts and Other International Bodies that Involve International Human Rights Law’).
6. Several constitutions such as those of Austria, Greece, Nicaragua, Russia, Serbia, Slovakia, South Africa, the United States, and several Central Asian and Latin American states, do provide for the general incorporation of international law into a domestic legal system (see: Federal Constitutional Law of the Republic of Austria: 1 October 1920 (as Amended to Federal Act No. 65/2012 of 25 July 2012) Art. 9(1) (Austria); Constitution of the Hellenic Republic: 7 June 1975 (as Amended to 27 May 2008) Art. 28 (Greece); Political Constitution of the Republic of Nicaragua Art. 10 (Nicar); Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) Art. 15(4) (Russ); Constitution of the Republic of Serbia: 30 September 2006, Arts 16 and 194 (Serb); Constitution of the Slovak Republic: 1 September 1992 (as Amended to 1 May 2006) Arts 7(2)(4)(5) and 154c (Slovk); Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 1 February 2013) Sections 231−233 (S Afr); Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) Art. VI (US)). These provisions do not ensure, however, that the applicable international law includes international court decisions even when they purport to or actually serve to interpret the law. In a few Latin American countries with constitutional references to international law, courts have crafted doctrines to implement international court decisions, mainly concerning human rights. Also in Latin America, a regional economic integration treaty (the Andean Pact) and a free-trade treaty (MERCOSUR) may affect how any corresponding judicial decisions are to be implemented.
7. Aside from such explicit provisions in constitutions, the implementation of international court decisions may be grounded in either the transformative authority of statutes or interpretations, primarily by national courts rather than in express constitutional texts. That is, of course, most obviously the case in four national systems without a written, single-document constitution: Israel, New Zealand, Saudi Arabia, and the United Kingdom. All four countries, however, have secure traditions of constitutionalism—or, in the case of Saudi Arabia, a religious foundation—committed to established processes of lawmaking and decision-making.
8. International law, particularly treaties, may be determinative even in a dualist system without a written, single-document constitution, if enacted. For example, as a State Party to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR), the United Kingdom incorporated its provisions to form a bill of rights that is tantamount to bedrock requirements of written constitutions. Sometimes even uncodified international norms can profoundly shape what amounts to constitutional ordering in a domestic legal system without a written, single-document constitution. For example, the global normative consensus against apartheid in South Africa nudged New Zealand away from strict dualism toward a more qualified form of it. During the era of apartheid, the New Zealand judiciary, in Ashby v Minister of Immigration (Court of Appeal) (1981) (NZ), upheld the issuance of visas by the Minister of Immigration to the Springboks of South African rugby fame so that they could meet the ironically named All Blacks of New Zealand on the latter’s national turf. That decision, which declined to apply provisions of unincorporated human rights treaties so as to overturn the government’s immigration decision, sparked legislative and judicial rethinking that eventually led to the adoption of a ‘mandatory consideration model’ whereby the executive is obliged to consider human rights and other international treaty obligations. Under one interpretation of New Zealand’s transformation—short of fully incorporating treaty provisions into national law, as the United Kingdom had done in the instance of its Council of Europe-generated bill of rights—treaty norms have become values binding on governmental authority as a sort of constitutional surrogate.
9. The vocabulary of transformative techniques includes legal harmonization, self-execution of international obligations, universal jurisdiction to enforce select rules of international law, canons of construction for interpreting national law to presume that it is in compliance with international obligations, the later-in-time rule as between international obligations and domestic law, and a deference of courts to determinations by the political branches of government, particularly the executive branch, in the context of international relations (judicial deference). The ‘political question’ doctrine of jurisprudence in the United States is a specific example of this deference that can sometimes facilitate the implementation of an international court decision. Also, peremptory norms, which can override other law, have been accepted in many if not most legal systems, but the manner in which such ius cogens norms operate varies in scope, definition, and application among different systems.
10. The relationship between the enforcement of foreign judgments and those of international courts should also be noted. If domestic law gives international court decisions the same status as foreign judgments (and no more), enforcement may be subject to special requirements. Thus, for example, a Belgian court required an exequatur as an additional condition of enforcing a judgment of the Permanent Court of International Justice (PCIJ) of the League of Nations, thereby assimilating it to the status of a strictly foreign judgment (Société Commerciale de Belgique (Belgium v Greece) (1939)).
11. The sheer profusion of transformative techniques bespeaks the fallacy of labelling a national legal system simply as ‘dualist’ or ‘monist’ (see Novaković(ed)) (dualism / monism). Although the analytic construct of monism and dualism remains useful, pure versions of either model are rare; most national legal systems are hybrids of the two models. Significantly, however, international custom, as a basis for implementing international court decisions, is at least partially integrated with national law in most legal systems, including dualist ones. Moreover, treaty-based decisions by the regional courts of human rights are ordinarily accepted by domestic legal system as transformative. Moreover, the trend in even the staunchly dualist Westminster or modified-Westminster tradition of the United Kingdom, British Commonwealth countries, and former British colonies has been toward a greater receptivity to international legal authority including international court decisions, at least as guidance. That is particularly the case in Australia.
12. Not all international courts are equal. Given the complexity of techniques of implementation by domestic legal systems, the weight of authority often varies among courts. For example, the authority of some regional courts, primarily in Europe but also in Latin America, is well-established by constitutional practice. But an ad hoc bilateral tribunal established by two states intent on preserving, restoring, or enhancing friendly relations between them is more apt to generate compliance by these states than is an established regional or international court whose jurisdiction or competence has been controversial, especially when it is at issue between disputing states. In particular, the non-appearance of states has challenged the efficacy of the International Court of Justice (ICJ) of the United Nations (UN). Important non-appearances by states subject to ICJ jurisdiction generally or in particular cases have included, for example, Iceland in Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) (1974) (see Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland)); France in Nuclear Tests (Australia v France) (1974) (see Nuclear Tests Cases); Turkey in Aegean Sea Continental Shelf (Greece v Turkey) (1978); and Iran in United States Diplomatic and Consular Staff in Tehran Case (United States of America v Iran) (1980).
13. The same threat by non-appearing parties to domesticating the judgments of international courts extends to international arbitral tribunals. A recent, but already classic, example is Arctic Sunrise (Netherlands v Russian Federation) (Annex VII UNCLOS Tribunal) (2015) arising out of Russia’s seizure of a Dutch-flagged vessel and the 30 people on board during a protest staged by its charterer and operator, Greenpeace International. The target of the protest was an offshore oil platform off the northwestern coast of Russia within its exclusive economic zone. In the aftermath of the seizure, Russia refused to participate in any way in arbitral proceedings that had been demanded by the Netherlands. After proceedings nevertheless began, Russia also failed to comply with an order on provisional provisions or to pay its share of arbitral expenses.
14. Besides non-appearances, outright withdrawals from the jurisdiction of international courts and quasi-judicial bodies have frustrated their scope and efficacy. Judicial examples include withdrawals by the United States from a formal commitment to the compulsory jurisdiction of the ICJ, and by Russia and the United States of their signatures on the Rome Statute that launched the ICC, followed by declarations of established States Parties Burundi, Gambia, and South Africa that they would no longer recognize the ICC’s jurisdiction. A quasi-judicial example was Jamaica’s unprecedented withdrawal in 1998 from the Optional Protocol to the International Covenant on Civil and Political Rights (1966) (ICCPR), thereby denying the right of individual petitions against it to the UN Human Rights Committee (HRC) (see Damian Thomas v Jamaica (UN HRC) (1999)).
B. Compliance with Decisions of the Consecutive World Courts
15. The stability of the international legal system has always relied on good-faith compliance by states with authoritative pronouncements, including those of international courts. Given the proliferation if not welter of international and regional tribunals, by far the most studied and empirically reliable and revealing decisions on the question of domestic direct application and decisions—that is, compliance with them—have been those of the consecutive World Courts: the PCIJ and the ICJ. Much of the focus of commentary about compliance with international tribunals has therefore been on decisions of the World Court.
16. The record of compliance with PCIJ decisions was surprisingly impressive, given the lack of explicit constitutional requirements to implement those decisions and the overall weakness of the League of Nations. Thus, even in the dying days of the League of Nations, whose weak Covenant conferred no power on the PCIJ or any other organ to enforce the Court’s judgments, ‘[i]n no case did a [s]tate refuse to carry out a judgment of the court … [i]t is a striking fact that states have seldom refused to carry out or abide by the decisions of international tribunals’ (Hudson 129).
17. Unlike the Covenant of the League of Nations, the Charter of the United Nations (‘UN Charter’) provides an enforcement mechanism. Accordingly:
• Each [m]ember of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
• If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the [UN] Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment (Art. 94 UN Charter).
18. Although a losing party is at liberty to select the means by which it will effectively implement a decision, it may not use even its own constitution or legal order (such as a federal system) as an excuse for noncompliance with a decision. Article 94 of the UN Charter has been rarely invoked by a judgment creditor (but see the request of the UN Security Council for enforcement of provisional measures in the Anglo-Iranian Oil Company Case (1951)), and the UN Security Council has never exercised its authority under Article 94, given the veto power of the five permanent members (see Schulte 38). In Medellín v Texas (2008) (US) the Supreme Court of the United States interpreted Article 94 to relieve the United States of its obligation otherwise to ensure, within the parameters of its constitutional system of federalism, that one of its constituent states, Texas, comply with an ICJ judgment.
19. In view of Article 94’s political limitations and the sometimes errant behaviour of national legal systems, ICJ judges must rely on their own insightfulness and shrewdness to encourage compliance with their judgments. This assumption of professional responsibility has been well-stated as follows:
[m]ore than ever, the ICJ is engaged in a complicated balancing of divergent institutional impulses: on the one hand, the Court should address the concerns of its over 190-state clientele by only adjudicating on disputes over which a genuine, comprehensive (not merely legal) settlement is possible, as the Court must (considering the evidence inefficacy of Article 94 of the UN Charter) continue to rely on the parties themselves to give effect to their judgments. On the other hand, it should not, in an excess of caution, disregard legitimate instances in which it may exercise jurisdiction for fear of non-compliance: doing so would substitute principle for power and bode ill for international law. Thus far, the Court’s compliance success, regardless of the mode of jurisdictional acquisition, suggests that it has largely been successful at finding a working equilibrium among these different roles, striking the right tone between expositor of international law and political actor, between arbitral body encouraging negotiated settlement and impartial adjudicator of rights (Llamzon 852).
20. Overall, record of compliance with ICJ decisions is somewhat uncertain but, on balance, quite positive. To be sure:
[t]he most striking feature of the pattern of use of the [ICJ] since 1946 is its irregularity. The history of the ICJ, indeed, is rich with accounts of states that have given the institution a cold shoulder or left the courtroom slamming the door spectacularly. In turns, all regions of the world or political groupings of states seem to have found in a decision of the Court a reason to refuse to implement the ruling, or violently attack it (Romano (2004) vii).
21. Unfortunately the ICJ has no formal mechanism for monitoring compliance. It appears, however, that there have been some eleven cases in which, arguably, compliance with an ICJ judgment was only partial. But ‘[c]ommentators on the [ICJ] note that cases of noncompliance with final judgments are very rare’ (Paulson 434). A salient exception was the refusal by the Constitutional Court of Italy (La Corte Costituzionale Della Repubblica Italiana), on constitutional grounds, to implement an ICJ judgment (Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) (2012)) that Germany was entitled to the defence of sovereign immunity against claims in the Italian courts against it by victims of Nazi-era war crimes (Judgment No. 238/2014 (2014) (It)).
22. Thus, as was true for PCIJ decisions during the League of Nations era:
[d]ecisions of the [ICJ] have been met with substantial compliance in the modern era. Direct, defiant noncompliance, where a state deliberately and ceaselessly rejects a decision of the Court and refuses to implement its judgment, has not occurred in any case. In cases where noncompliance has been present, the noncompliant behavio[u]r has been fleeting or slight (Jones 87).
23. Moreover, there appear to be no cases of blatant defiance based on a constitutional impediment. Even when a federal state failed to comply with an ICJ decision because of its inability to do so, it did not assert a constitutional impediment but, to the contrary, attempted unsuccessfully to rebut a constituent state’s objection to implement the international court decision. In the end, the Court has maintained an esteemed reputation, having performed its ‘crucial role in settling for good some delicate disputes’ (see Romano (2004) vii).
24. Four further points are in order. First, often appropriate technical considerations may best explain instances of only partial compliance with international court decisions, for example, when a precise delimitation of maritime waters is left to the parties to work out after an ICJ decision has established the applicable rules and principles. Second, delays of various lengths, for various reasons, and under various circumstances do not yield any coherent patterns, explanations, justifications, theories, or conclusions. Third, the extent of compliance is best measured not by a strict application of a rule of decision but by its often more diffuse, indirect effect in providing a forum and catalyst for peacefully settling a dispute, perhaps by negotiation or subsequent agreement between disputing parties. Thus, even the discontinuance of proceedings may carry with it positive elements of dispute settlement (see Donner 250). Where proceedings are completed, ICJ judgments have occasionally resulted in corresponding agreements between the parties. For example, the judgment in favour of the petitioner in Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010), prompted a bilateral agreement to monitor pollution levels in a shared watercourse.
25. A fourth and final point of importance in assessing the efficacy of implementing international court decisions is to return to their role as sources of indirect transformation and persuasion. ICJ decisions are both enforced in themselves against a judgment debtor state and applied by other states as indirectly pertinent or simply persuasive authority. In other words, enforcement and reception of decisions are both important. Thus, national constitutions and constitutional practice may not only benefit foreign judgment creditors of international court decisions, but also encourage the reception of international court decisions for their interpretative guidance or comparative insights. For example, in a case involving the applicability of excise and value-added taxes in occupied territories, the Supreme Court of Israel (Beit Ha Mishpat Ha Elyon) relied upon an ICJ decision (Asylum Case (Colombia v Peru) (1950) (see Haya de la Torre Cases)) regarding the proof of international custom (see Abu ‘Aita v Commander of the Judea and Samaria Region (1983) (Isr)). In Cassirer v Thyssen Bornemisza Collection Foundation (2015) 1166−67 (US) a United States district court sought and secured assurance that Spanish adverse possession laws did not violate the ECHR as interpreted by the European Court of Human Rights (ECtHR).
C. Compliance with Decisions of Regional Tribunals
1. Court of Justice of the European Union
26. Member states of the EU have rarely refused to comply with decisions of the Court of Justice of the European Union (CJEU), given the doctrine of supremacy of European Community law, although delays of implementation have been common (see European Union, Court of Justice and General Court). A salient exception to this record of compliance is Commission v Italy (CJEU) (1985). In that case, the Court adjudged Italy to have deliberated refused to adopt a social policy directive after a prior ruling by the Court for it to do so. Also, France refused to comply with a CJEU judgment against its imposition of quotas and charges on British lamb imports (Commission v France (CJEU) (1979)). Following the European Commission’s unsuccessful enforcement bids (Commission v France (CJEU) (1980)), a policy compromise of agricultural and budget issues ultimately resolved the underlying issues. It is not clear in either of these cases, however, that non-compliance had a constitutional explanation.
2. European Court of Human Rights
27. Similarly, decisions of the European Court of Human Rights (ECtHR) have been generally implemented by the pertinent Member States. That should not be surprising, given that they have either incorporated into their domestic law the underlying ECHR, or have statutory bases for giving effect to ECtHR judgments. Effective responses have included administrative remedies and compensation to aggrieved persons, reopening judicial proceedings, and amending legislation.
28. Problems of implementation often have not involved abject refusals to comply, but rather half-measures of compliance and delays of implementation. For example, it took 15 years before the Isle of Man legislated to abolish corporal punishment of adults, pursuant to an ECtHR judgment (Tyrer v United Kingdom (1978)). Also, Belgium’s implementation of a judgment against it (Marckx v Belgium (1979)) took eight years. As noted earlier, however, even a lengthy delay does not bespeak non-compliance although it may be injurious.
29. A more defiant but rare response by Member States, particularly the United Kingdom in the Irish terrorism cases, has been to invoke the derogation defence because of a public emergency, under Article 15 of the ECHR (types and effects of emergency). The United Kingdom’s action is not unique. In 2013 the Constitutional Court of the Russian Federation (Konstitutsionnyi Sud Rossiiskoi Federatsii) reversed its established practice when it ruled that it was competent to decide not to enforce ECtHR decisions when they contradicted the Russian Constitution. In 2015 the Constitutional Court more boldly and broadly sublimated international law, including an ECtHR ruling against Russia, to constitutional constraints as determined by the Court.
30. Tensions or conflicts between ECtHR and CJEU decisions, on the one hand, and universal authority such as UN Security Council resolutions, on the other, have been difficult. Decisions of the ECtHR and national courts, particularly in cases contesting anti-terrorist listings of individuals and sanctions against them imposed by the UN Security Council, have been confusing. The core question is consistently whether the normally preemptive authority of UN decisions is subject to EU and human rights requirements, particularly of procedure (see, for example, Al-Dulimi and Montana Management Inc v Switzerland (ECtHR) (2016)).
3. Other Regional Tribunals
31. The implementation record of decisions by the Inter-American Court of Human Rights (IACtHR) has been mixed. On one hand, Colombia has deferred explicitly to IACtHR jurisprudence as the ‘authoritative interpreter’ of the American Convention on Human Rights (1969) (Decision C-010 of 1999 (2001) (Colom)). Brazil and Ecuador, on the other hand, have resisted compliance with IACtHR decisions (see Huneeus). Three illustrative cases decided by the IACtHR are discussed below.
32. The African Court on Human and Peoples’ Rights (ACtHPR) is still too new to assess national implementation of its decisions. There is virtually no statistically reliable record of compliance or commitment to the Court by African states (see ILA ‘The Domestic Implementation of Judgments/Decisions of Courts and Other International Bodies that Involve International Human Rights Law’ 290). It has been observed, however, that ‘the African regional human rights system is faced with almost insurmountable challenges: massive violations on a continent of immense diversity, where a tradition of domestic compliance with human rights norms is still to be established’ (Heyns 701).
D. Compliance with Other Authoritative Decisions
33. Although arbitral awards and outcomes of dispute settlement by international institutions and agencies are not technically court decisions, they can help define the extent to which specific constitutional systems are prepared to implement authoritative decisions by international fiat. A few examples are illustrative, as follows.
1. Permanent Court of Arbitration
34. Of the myriad arbitral bodies at the international level—most of which primarily address private commercial issues—the Permanent Court of Arbitration (PCA) in The Hague most closely resembles an international court. Although its docket has been sparse since its establishment in 1899, it has been more active in recent years in resolving disputes between sovereign states. Generally, the record of compliance with its awards is positive.
35. Perhaps the most celebrated award in a PCA-registered case was made by an Annex VII UNCLOS Tribunal on 12 July 2016 concerning a request by the Philippines for interpretation of the UN Convention on the Law of the Sea (UNCLOS), as applied to the South China Sea (The South China Sea Arbitration (2016)). An underlying dispute between the Philippines and China concerned the status of land and maritime territory. Although China chose not to appear in the arbitration, the Tribunal confirmed its jurisdiction in the matter and its competence to issue an award. The Tribunal made clear, however, that UNCLOS did not provide for it to address issues of sovereignty over specific land features. Instead, it addressed five other issues on the merits: China’s claims to historic rights, particularly its assertion of a vaguely defined ‘nine-dashline’ encompassing the South China Sea; the status of land features (submerged land, rocks and islands) under UNCLOS definitions; Chinese activities on land and at sea within the maritime area; the aggravation or extension of the dispute between the parties; and the future conduct of the parties.
36. The unanimous 479-page award upheld almost all of the Philippine arguments against China’s sweeping claims of maritime jurisdiction and Chinese activities in the maritime area. Although the tribunal undoubtedly had the competence to hear the matter and render its award, China unequivocally rejected it and announced its refusal to comply with it. For present purposes, China thereby excluded PCA awards from the scope of Article 5, the ‘rule of law’ provision in its 1982 Constitution (Constitution of the People's Republic of China: December 4, 1982 (as Amended to March 14, 2004)).
2. International Institutions and Agencies
37. The World Trade Organization (WTO) is a prime example of an international organization with the legitimacy and authority to settle significant but specialized international disputes (World Trade Organization, Dispute Settlement). Although Member States are not obligated to comply with the decisions of the WTO’s Dispute Resolution Body (‘DSB’), they face trade-related sanctions for failing to do so. Additionally, neither EU nor US law provides specifically for the judicial enforcement of WTO rulings (see Bronckers). Generally, either national constitutions or laws provide specifically for enforcement of outcomes of dispute settlement by the WTO or other international institutions and agencies.
38. Although the DSB was designed to better institutionalize and therefore improve compliance specifically with decisions under the General Agreement on Tariffs and Trade (1947 and 1994) (GATT), its record of doing so is unclear. According to one analysis, compliance has not yet improved. Nor has WTO dispute settlement improved compliance in dispute between the EU and the United States (Busch and Reinhardt in Petersmann and Pollack (eds) 465−66). Another analysis disagrees, concluding that the institutional change from the GATT alone to WTO dispute settlement has increased compliance in a broad range of cases (Zangl). A middle position is that, although the WTO package of agreements has led to greater compliance by Member States, that is because of high rates of compliance under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services (GATS) rather than the GATT (Busch and Reinhardt in Curtis and Ciuriak (eds)).
39. Another illustrative example of a dispute-settlement mechanism within an international organization is the International Tribunal for the Law of the Sea (ITLOS) that was established under the UNCLOS. The Tribunal’s statute repeats Article 296 of UNCLOS, as follows: ‘(1) [a]ny decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute. (2) Any such decision shall have no binding force except between the parties and in respect of that particulate dispute’. Article 39 of the ITLOS Statute requires that the decisions of the Seabed Disputes Chamber ‘shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought’.
40. In 2011, the Seabed Dispute Chamber, on the initiative of Nauru and Tonga, unanimously adopted a historic Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area (2011). The core issue involved liability of states sponsoring the exploitation of minerals by commercial entities within the seabed area. The Seabed Dispute Chamber’s opinion established a broad set of obligations of states, falling short of strict liability but requiring due diligence, best environmental practices, and exercise of the precautionary principle. The level of compliance by UNCLOS Member States within this advisory framework is uncertain, but there is no evidence of flagrant non-compliance.
E. Comparative Constitutional Insights
41. Several significant cases will illustrate the diversity of issues that can arise even when compliance with an international court decision might seem to be assured by a constitutional provision or established practice. These cases arose in the Dominican Republic, Mexico, Nigeria, the United States, and Venezuela.
1. Dominican Republic
42. In 1999, the Dominican Republic filed a declaration that accepted the jurisdiction of the IACtHR. Afterward, the country actively litigated cases before that tribunal. In the course of this experience, the country’s Supreme Court, Congress, and Executive, as well as its Constitutional Tribunal, had all acknowledged the IACtHR’s jurisdiction to hear the cases. In 2013, the Constitutional Tribunal issued a decision that would potentially deprive Dominican-born but Haitian-descended residents and citizens of several fundamental human rights that had been secured for all Dominican nationals. In 2014, the IACtHR held that the Constitutional Tribunal’s decision caused the Dominican Republic to be in violation of human rights protected by the American Convention on Human Rights (‘American Convention’) (Expelled Dominicans and Haitians v Dominican Republic (IACtHR) (2014)). Two months later, however, the Constitutional Tribunal ruled that the IACtHR had lacked jurisdiction to hear the case (In re Direct Action of Unconstitutionality Initiated against the Declaration of Acceptance of the Jurisdiction of the Inter-American Court of Human Rights (2014) (Dom Rep)). Dismissing arguments based on acquiescence and reliance, the Constitutional Tribunal held that the IACtHR’s decision was unenforceable insofar as the 1999 declaration was a treaty and therefore had required approval of Congress, which had never occurred after its initial ratification of the American Convention.
43. Arguably, this domestic decision violated several rules of international law, ranging from the principle of estoppel to the definition of a treaty. For purposes of this article, the most important point is the risk that, despite a constitutionally-validated practice of accepting the jurisdiction of a regional human rights court on which its judgment is based and national compliance is indicated, a questionable technicality may serve as a pretext for disavowal of national implementation of the court’s decision.
44. Several decisions of the IACtHR held that Mexico’s expansive practice of extending the jurisdiction of its military courts to cases involving the interests of civilians violated their rights under the American Convention. This practice exposed a contradiction between the Mexican Constitution (Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 24 February 2017) Art. 13 (Mex)), which prohibits special courts and any extension of military jurisdiction to civilians, and a later statute (Código de Justicia Militar (‘CJM’) Art. 57 (II)a, DO (1933) (Mex)), which provided for such jurisdiction.
45. In 2012 the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) finally enforced the IACtHR judgments by declaring that the challenged Article 57 of the CMJ was unconstitutional (see Amparo Review No. 133/2012 (2012) (Mex)). For purposes of this study, it is significant that although the Mexican legal system does not expressly provide for enforcement of IACtHR judgments, its Supreme Court nevertheless held that the American Convention required the Court (as well as all Mexican state organs) to comply with the judgment regardless of whether it was correct or not. In other words, Mexico’s highest judicial authority incorporated an international court decision as federal law.
46. Following an ICJ judgment concerning the boundary between Nigeria and Cameroon (Land and Maritime Boundary between Cameroon and Nigeria Case (Cameroon v Nigeria) (2002)), Nigeria rejected parts of the decision that it found unacceptable. It couched its noncompliance in terms of a constitutional provision that seemed to require not only national assemblies but also implicated state assemblies to approve of any territorial concessions. Eventually, however, the Nigerian government, supported by critical national and state authorities, agreed to find a peaceful solution by enlisting the UN to set up a commission to mediate questions of territoriality that were still in dispute between the parties. That recourse to a third party was largely successful in giving effect to the ICJ decision. For the purpose of this article, the important points are these: (1) the transformation into the Nigerian legal system of an international court decision affecting fundamental sovereign interests; (2) the role of external pressures, particularly from the United Kingdom, France, and the United States to gain Nigerian implementation of the decision; (3) the role of an international institution in mediating between an international obligation and a constitutional obstacle; and (4) perhaps most noteworthy, the ultimate willingness to implement by agreement an international court decision that had initially been interpreted to violate Nigeria’s constitution.
4. The United States
47. The Supremacy Clause of the United States Constitution establishes that ‘all Treaties made or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land’ (Constitution of the United States of America, Art. VI (US)) (supremacy / primacy). Major qualifications, however, include the constraints of federalism as between federal and state authority, the lack of prioritization between federal legislation and treaties that may be in conflict, the related ‘later-in-time’ principle to resolve such a conflict, and a requirement of implementation by an act of Congress in order to enforce ‘non-self-executing’ treaties.
48. Aside from treaties, the United States Supreme Court has found international court decisions, along with international community opinion, persuasive and, to an extent, transformative despite the vigorous opposition of some members of the Court to accept the authority or even guidance of international court decisions. Majority opinions to that effect include Coker v Georgia (1977) 596 fn 10 (US) regarding the unacceptability of imposing capital punishment for rape when death did not result (citing an international consensus against the practice); Lawrence v Texas (2003) 573 (US) regarding consensual sexual conduct (citing a decision of the European Court of Human Rights); Roper v Simmons (2005) 578 (US) regarding the juvenile death penalty (citing ‘[t]he opinion of the world community, while not controlling’); and Graham v Florida (2010) 80 (US) regarding the sentencing of juveniles who did not commit homicide to imprisonment for life without parole (citing international custom, including foreign judgments, against the practice).
49. In Medellín v Texas (2008) (US), the United States Supreme Court ruled, however, that Article 94 of the UN Charter does not impose a legal obligation on the United States to execute judgments of the ICJ. The controverted judgment (Avena and Other Mexican Nationals (Mexico v United States of America) (2004)) was the third by the ICJ against the United States for its failure to have ensured that law enforcement authorities properly counselled foreign citizens brought into the criminal justice system of their right to seek the counsel of their government under the Vienna Convention on Consular Relations (1963). In all three cases, the foreign citizens faced the death penalty under state laws. The convention is unfortunately silent on the question of domestic implementation of a judgment by the ICJ under the Convention.
50. The United States Supreme Court held, first, that the requirement of Article 94 of the UN Charter, that UN members ‘undertake to comply’ with ICJ judgments, falls short of a legal obligation. Instead, the Supreme Court interpreted the language to be merely aspirational rather than, as the ICJ has held, obligatory (Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v Serbia and Montenegro) (2007) 112−12, 162−63). The Court also interpreted Article 94(2) to restrict the enforcement of an ICJ decision to aggrieved states in the international system, not individuals such as the plaintiff Medellín and others, even if they are on death row. In denying judicial standing to foreign citizens to complain about a breach of the Vienna Convention, the Court relied in part on the seemingly irrelevant observation that individuals cannot bring actions directly before the ICJ. Finally, the Court observed that the prescribed enforcer of ICJ decisions is not the domestic legal system but the UN Security Council, on which the United States, as a permanent member, has a veto power over all decisions. (The Court failed to observe that the United States had not vetoed the enforcement of this particular ICJ judgment. To the contrary, the president sought to bring the state of Texas into compliance with it.)
51. Thus, the Court ruled that ICJ judgments, notwithstanding Article 94 of the UN Charter, are not binding within United States jurisdiction in the absence of explicit approval. Although such judgments are to be given ‘respectful consideration’ by United States courts, they can become legally binding only by virtue of a specific provision in international agreements, implementing legislation by Congress, or other explicit action by the political branches of the federal government such as by the United States Senate in giving its advice and consent under the constitution to a treaty upon which the ICJ judgment is based. The Supreme Court also ruled that the president, despite his plenary foreign relations power and express intent to apply Article 94, could not thereby compel the state of Texas to implement the ICJ decision.
52. Medellín v Texas has been highly controversial in the United States. Its strained interpretation of the UN Charter’s Article 94 and its enforcement mechanism has met with both incredulity and sharp criticism. The majority opinion has also been criticized for its technical complexity, puzzling if not irrelevant observations, and internal contradictions. But as a reinterpretation of the traditional, mainstream thinking about the country’s hybrid of monism and dualism, the decision needs to be taken seriously, however narrowly it is construed or how temporary its dicta turn out to be.
53. For purposes of this article, the main point, as in the Dominican Republic case, relates to the application of a technicality to bar the normal implementation of an international court decision. In this case, a questionable interpretation of key language in the UN Charter that clearly obligates Member States to implement ICJ decisions, coupled with the characterization of an underlying treaty as non-self-executing, overcame an explicit constitutional provision for direct incorporation of a treaty as the Supreme Law of the Land.
54. A final example involves another claim before the IACtHR. Radio Caracas Television (RCTV) successfully argued Venezuelan government’s refusal to renew its broadcasting license violated several provisions of the American Convention on Human Rights. The Court, in a 6−1 decision, held that the defendant state had indirectly violated RCTV’s right to freedom of expression in retaliation for RCTV’s critical editorial pronouncements against the government, but not its property rights nor the Convention’s protection of judicial independence and impartiality (Granier v Venezuela (IACtHR) (2015)). It is significant that, before the Court was seized of the case, the Venezuelan government, on constitutional grounds, had refused to comply with the recommendations of the Inter-American Commission on Human Rights (IACommHR), based on a finding that the government had violated the right of freedom of expression. It therefore was not surprising that after the Court’s decision, the Venezuelan Supreme Court rejected the decision as unenforceable and denounced the American Convention.
F. Comparative Assessment
55. Empirical studies have revealed that several variables identified at the beginning of this article may condition the effect or influence of international court decisions within domestic legal systems. Ancillary considerations include the underlying subject of a dispute, the nature and relative importance of the case that has led to an international court decision (for example, involving an issue of fundamental human rights (fundamental rights) or national security, and the extent of prior negotiations or other non-judicial means of resolving a dispute. Most importantly as a focus of comparative constitutional law, however, is the general status of international law in a domestic legal order. A full or limited commitment to implement international court decisions may be enshrined explicitly in a constitution or may be established by constitutional interpretation and practice. In either case, technical obstacles may challenge, if not defeat, expectations of implementation.
56. In 2016, the International Law Association (ILA), in ILA Resolution No. 2/2016, adopted guidelines on the domestic implementation of international human rights judgments and decisions. The seventh of these guidelines provides that ‘[s]tates and their courts are under an obligation to give effect to legally binding decisions of competent international courts and due regard in good faith to all other decisions of competent international bodies’ (ILA ‘Resolution No. 2/2016’ 22). The eighth guideline further provides that ‘[s]tates are under an obligation to cooperate in good faith with the follow-up mechanism developed to ensure compliance with decisions of international bodies’ (ILA ‘Resolution No. 2/2016’ 23). This articulation of state obligations confirms general expectations about obligatory domestic implementation of decisions by competent international courts, while at the same time distinguishing such decisions from those of ‘competent international bodies’, concerning which only ‘due regard in good faith’ is expected.
57. The complexity as well as the sheer number of possible national transformative techniques and potential obstacles to implementation may reduce meaningful comparative work to case-by-case analysis. But as research continues and analysis deepens from a global perspective, comparative study will surely offer productive insights from which to fashion more reliable regimes of implementation.
Alter, K, Romero, C, and Shany, Y, (eds), Oxford Handbook of International Adjudication (OUP 2013).
Azar, A, L’exécution des décisions de la Cour internationale de justice (Bruylant 2003).
Bronckers, M, ‘The Effect of the WTO in European Court Litigation’ (2005)40 TexIntlLJ 443.
Bulterman, MK, and Kuijer, M, (eds), Compliance with Judgments of International Courts (Nijhoff 1996).
Busch, ML, and Reinhardt, E, ‘Transatlantic Trade Conflicts and GATT/WTO Dispute Settlement’ in Petersmann, E-U, and Pollack, MA, (eds), Transatlantic Economic Disputes: The EU, the US and the WTO (OUP 2003) 465.
Busch, ML, and Reinhardt, E, ‘The Evolution of GATT/WTO Dispute Settlement’ in Curtis, JM, and Ciuriak, D, (eds), Trade Policy Research 2003 (Minister of Public Works and Government Services Canada 2003) 143.
Donner, R, ‘Discontinuance in the International Court of Practice: Six Recent Cases’ (1997)8 FinnishYBIL 243.
Franck, TM, and Fox, GH, (eds), International Decisions in National Courts (Transnational 1996).
Ginsburg, T, and McAdams, RH, ‘Adjudicating in Anarchy: An Expressive Theory of International Dispute Resolution’ (2004)45 William and Mary Law Review 1229.
Guillaume, G, ‘De L’exécution des décisions de la Cour internationale de justice’ (1997)7 Swiss Review of International and European Law 432.
Heyns, C, ‘The African Regional Human Rights System: The African Charter’ (2004)108 PennStLRev 679.
Hudson, M, International Tribunals: Past and Future (Carnegie Endowment for International Peace and Brookings Institution 1944).
Huneeus, A, ‘Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights’ (2011)44 CornellIntlLJ 493.
Jones, H, ‘Why Comply? An Analysis of Trends in Compliance with Judgments of the International Court of Justice since Nicaragua’ (2012)12 Chicago-Kent Journal of International and Comparative Law 57.
Kosar, D, and Lixinski, L, ‘Domestic Judicial Design by International Human Rights Courts’ (2015)109 AJIL 713.
Llamzon, AP, ‘Jurisdiction and Compliance in Recent Decisions of the International Court of Justice’ (2007)18 EJIL 815.
Novaković, M, (ed.), Basic Concepts of Public International Law: Monism and Dualism (University of Belgrade, Institute of Comparative Law, Institute of International Politics and Economics 2013).
O’Connell, ME, The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement (OUP 2008).
Paulson, C, ‘Compliance with Final Judgments of the International Court of Justice since 1987’ (2004)98 AJIL 434.
Pellet, A, ‘Remarques sur l’(in)efficacité de la Cour internationale de justice et d’autres jurisdictions internationales’ in Le procès international: liber amicorum Jean-Pierre Cot (Bruylant 2009) 193.
Reisman, M, ‘The Enforcement of International Judgments’ (1969)63 AJIL 1.
Romano, CPR, ‘General Editors’ Preface’ in Schulte, C, Compliance with Decisions of the International Court of Justice (OUP 2004) vii.
Romano, CPR, (ed.), The Sword and the Scales: The United States and International Courts and Tribunals (CUP 2009).
Schulte, C, Compliance with Decisions of the International Court of Justice (OUP 2004).
Shelton, D, (ed.), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (OUP 2011).
Zangl, B, ‘Judicialization Matters! A Comparison of Dispute Settlement under GATT and the WTO’ (2008)52 International Studies Quarterly 825.
In re Direct Action of Unconstitutionality Initiated Against the Declaration of Acceptance of the Jurisdiction of the Inter-American Court of Human Rights Judgment No. TC/0256/14 (4 November 2014) (Dom Rep).
ILA ‘The Domestic Implementation of Judgments/Decisions of Courts and Other International Bodies that Involve International Human Rights Law’ in International Law Association (ed.) Report of the Seventy-Seventh Conference: Johannesburg: 7–11 August 2016 (ILA London 2017) 285.