A new analytical approach
Marcus Schnetter*
A. Introduction
In principle, the International Court of Justice (ICJ/ the Court) enjoys an all-encompassing authority to order a State to redress injurious consequences towards another State according to Article 36 II d ICJ-Statute.1 All-encompassing means that the Court has an inherent jurisdiction to award any remedy, regardless of its character.2 The term ‘remedy’ possesses two related but distinct meanings. Firstly, it is understood in its procedural dimension as access to a judicial body competent to decide about a legal dispute (Rechtsmittel des verletzten Staates), or secondly, the word remedy in its substantive dimension connotes the indemnification of present or past wrongdoing (Sekundärpflicht des verletzenden Staates).3 This paper focuses on the latter meaning.
Scholarly writings opine that the Court has not yet established a coherent framework of applicable remedies.4 This thesis takes this assumption as its starting point and delves into the Court’s practice. By applying a distinct analytical approach, the paper does not distinguish among the concrete forms of remedies (e.g. restitution, compensation, satisfaction5), but rather identifies several mechanisms regulating the Court’s competence to remedy past wrongs.\smallskip
B. Main Part
The following analysis shows that the ICJ resorts to several mechanisms that attenuate the severity of a judgment (B.I-V), but that recent case-law reveals a commitment to formulate remedies that are more concrete (B.VI).\medskip
I. The Court adheres to the parties demands (non ultra petita)
The non ultra petita principle is derived from the general precept that an international court’s jurisdiction is limited by the consent of the parties expressed in their submissions.6 The majority of judgments reflect the Court’s general obedience to this principle relating to remedies.7
Prominently, in the Corfu Channel Case, the Court merely declared that the United Kingdom had infringed Albania’s sovereignty8 because Albania abandoned its original request for an apology during the proceedings9. The Court further implicitly rejected the concept of punitive damages10: By ignoring its previous rebuke of Albania’s grave breaches,11 the Court explicitly refrained from ordering a higher amount of compensation, even though independent experts estimated the damage of one of the warships to be higher than previously claimed by the United Kingdom.12
Arguably, in the Oil Platforms Case, the Court acted ultra petita. In an obiter dictum, the Court declared that the USA breached the prohibition of force13 despite of the absence of such a submission by Iran.14 Several judges harshly criticized this approach;15 culminating in Judge Higgins’ statement that such a declaration was “unwise, as a matter of judicial policy”16. On the other hand, policy considerations17 might have driven the Court to dismiss Iran’s claim for reparation18 even though the Court concluded that the USA had illicitly used force.19 Furthermore, the Court addressed the issue of the US’ incursion into Iranian territory,20 but refrained from pronouncing any implication under the law of state responsibility because the question of legality of this operation was not under the Court’s jurisdiction.21
Remarkably, in accordance with Article 75(2) ICJ-Rules22 the non ultra petita principle does not apply for the Court’s power to order provisional measures.23 In this regard, the Court enjoys a discretionary authority to “encroach upon the respondent’s sovereignty”24 without being required to
* The author is a student at the University of Münster, Germany (Westfälische Wilhelms-Universität Münster).
1 Statute of the Internationals Court of Justice, 1945, 33 USTS 993.
2 Amerasinghe, Jurisdiction of International Tribunals, 2003,422.
3 Tomuschat, 10 Tulane Journal of International & Comparative Law 2002, 157, 168.
4 Shaw, in: Evans (ed.), Remedies in International Law: The Institutional Dilemma, 1998, 11, 26; Brownlie, in: Essays in Honour of Sir Jennings, 1996, 557, 557-8; Gray, 56 British Yearbook of International Law, 1985, 25, 47.
5 Articles 35-37 International Law Commission’s (ILC) Draft articles on Responsibility of States for internationally wrongful acts (ASR), UN Doc. A/56/10, chp.IV.E.1-2.
6 Jurisdictional Immunities of the State, Judgment, ICJ Reports 2012, 99 [39].
7 Fisheries Case, Judgment, ICJ Reports 1951, 116, 126; Corfu Channel Case, Compensation, ICJ Reports 1949, 244, 249; Ambatielos, Judgment, ICJ Reports 1953, 10, 22-23; United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, 3 [94].
8 Corfu Channel, Judgment, ICJ Reports 1949, 4, 36.
9 Ibid 25-6.
10 Likewise Armed Activities on the Territory of the Congo, Judgment, ICJ Reports 2005, 168 [165]; Wittich, in: Crawford/Pellet/Olleson (eds.), The Law of International Responsibility, 2012, 667,671.
11 Corfu Channel Judgment (fn. 8) 23.
12 Corfu Channel Compensation (fn. 7) 249.
13 Oil Platforms, Judgment, ICJ Reports 2003, 161 [125(1)].
14 Ibid [18-20].
15 Oil Platforms Judgment (fn. 13) Separate Opinions Judges Parra-Aranguren, 241 [13-14]; Kooijmans, 246 [3]; Buergenthal, 270 [7-9].
16 Oil Platforms Judgment (fn. 13) Separate Opinion Judge Higgins, 225[28].
17 Dothan, 14 Theoretical Inquiries in Law 2013, 455, 461-2.
18 Oil Platforms Judgment (fn. 13) [99].
19 Ibid [78].
20 Diplomatic and Consular Staff in Tehran Judgment (fn. 7) [32; 93].
21 Ibid [94].
22 ICJ, Acts and Documents No. 6, 2007, 91.
23 Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of all Forms of Racial Discrimination, Provisional Measures, ICJ Reports 2017 forthcoming [100].
24 Pulp Mills on the River Uruguay, Provisional Measures, Separate Opinion of Judge Abraham, ICJ Reports 2006, 137 [6].
cross the same jurisdictional threshold as in judgments on the merits.25 We may explain this difference of authority with respect to two arguments.
Firstly, provisional measures are an inherent right on the Court’s own initiative (proprio motu) that aims at securing the public interest to safeguard the appropriate administration of the proceedings.26 However, this does not satisfactorily explain why there is a difference in competence between provisional measure orders and ordinary remedy decisions keeping in mind that issuing remedies is an inherent competence as well.
The second reason is more profound. The Court’s derives its authority to indicate provisional measures from Article 41 ICJ-Statute and all UN member States are inescapably party to the Statute. Hence, the Court can grant provisional measures as long as both States consent to the Statute. This does not require a State’s consent to the actual case.27
However, the possibility to apply for provisional measures and to enjoy the Court’s wide discretion is open to misuse.28 There have been cases where the Court authorized provisional measures on basis of prima facie jurisdiction29 but later refused a ruling on the merits having no jurisdiction over the dispute.30
II. The Court respects a State’s free choice of means
The Court may adjudge that a State must reach a certain result to comply with its international obligations but leaves open how the State achieves this result.31 The choice of means are therefore left with the State.32 The principle’s origin dates back to the 1951 Haya de la Torre Case,33 in which the Court stated that it was without competence to decide how Colombia fulfills its obligation derived from the prior Asylum decision.34 The reference to this rather narrow formulation of the Court’s competence by several respondents evidences that this principle possesses precedential value shaping normative expectations of litigating parties.35
Prominently, in the disputes that arose over the interpretation of the Vienna Convention on Consular Relations,36 the Court resorted to this mechanism.37 The Court held that detainees shall be entitled to a purposeful remedy but did not specify how the USA was obliged to implement this decision in their national legal system.38 The inconsistent interpretation of direct applicability of international obligations of US courts39 might explain the Court’s resort to the formula of free choice of means in Avena. Even more, in the Avena Interpretation,the Court revealed how toothless it is when a State ignores a judgment. The Court found to have no jurisdiction to indicate instructions that are more specific because the USA did not deny its non-compliance.40
In the dispute concerning the Obligation to Prosecute or Extradite, Belgium requested the Court to order Senegal to extradite former Chadian President Hissené Habré, in case Senegal fails to prosecute him. The Court indeed established a violation by Senegal against its obligation to prosecute41 and concluded that this inaction incurred Senegal’s international responsibility.42 However, the Court merely restated Senegal’s existing obligation of aut dedere aut judicare, but resisted a broader reading of this obligation establishing a duty to extradite43 and missed the opportunity to issue a mandatory order.44 This implies a reference to the free choice of means principle because Senegal was entrusted with the free choice of how to fulfill its extant obligation.
In the Arrest Warrant Case, the Court used the formula of free choice of means as well.45 However, in this case it merely constituted a rhetorical figure because the means by which Belgium was able to cease the wrongful act were limited to one,46 namely revocation of the arrest warrant by the judiciary. This judgment constitutes a vivid example of the exercise of the Court’s authority, notably because the Court ordered Belgium to withdraw the warrant even though the immunity of former Foreign Minister Yerodia had already ceased at that point of time.47
25 Application of the International Convention on the Elimination of all Forms of Racial Discrimination, Preliminary Objections, Separate Opinion of Judge Greenwood, ICJ Reports 2010, 323 [2].
26 Kolb, in: Zimmermann/Tomuschat/Oellers-Frahm/Tams (eds.), The Statute of the International Court of Justice, A Commentary2, 2012, General Principles of Procedural Law [43].
27 Magiera, 17 Jahrbuch für Internationales Recht 1974, 253, 275; Dissenting Collier/Lowe, The Settlement of Disputes in International Law, 1999, 170.
28 Kolb, The International Court of Justice, 2013, 615.
29 Anglo-Iranian Oil Co. Case, Provisional Measures, ICJ Reports 1951, 89, 93; Application of the International Convention on the Elimination of all Forms of Racial Discrimination,Provisional Measures, ICJ Reports 2008, 353 [148]; Nuclear Tests, Provisional Measures, ICJ Reports 1973, 99 [17].
30 Anglo-Iranian Oil Co. Case, Preliminary Objections, ICJ Reports 1952, 93, 114; Application of the International Convention on the Elimination of all Forms of Racial Discrimination,Preliminary Objections, ICJ Reports 2011, 70 [185-186]; Nuclear Tests, Judgment, ICJ Reports 1974, 272 [59].
31 Haya de la Torre, Judgment, ICJ Reports 1951, 71, 83; Northern Cameroons, Preliminary Objections, ICJ Reports 1963, 15, 37.
32 Quintana, Litigation at the International Court of Justice, 2015, 1161.
33 Haya de la Torre (fn. 31) 79.
34 Colombian-Peruvian Asylum Case, Judgment, ICJ Reports 1950, 266, 287.
35 Military and Paramilitary Activities in and against Nicaragua, Counter-Memorial of the United States of America, Volume II, 1984, 168 [527]; Arrest Warrant of 11 April 2000, Counter Memorial of the Kingdom of Belgium (2001) 203-4 [3.6.7]; Certain Questions of Mutual Assistance in Criminal Matters, Contre-Memoire de la Republique Française (2007) 66-7 [5.9]; Case concerning Avena and Other Mexican Nationals, Memorial of the United States of America, Volume I (2003) 40 [3.8].
36 Vienna Convention on Consular Relations, 1963, 500 UNTS 95.
37 LaGrand, Judgment, ICJ Reports 2001, 466 [125]; Avena and Other Mexican Nationals, Judgment, ICJ Reports 2004, 12 [128-134].
38 Hoppe, 18 European Journal of International Law (EJIL) 2007, 317, 333.
39 Keller, Rezeption des Völkerrechts, 2003, 389-91.
40 Avena and Other Mexican Nationals, Interpretation, ICJ Reports 2009, 3 [41].
41 Questions relating to the Obligation to Prosecute or Extradite, Judgment, ICJ Reports 2012, 422 [88; 117].
42 Ibid [121].
43 Nollkaemper, 4 Journal of International Dispute Settlement (JIDS) 2013, 501, 512-6.
44 McIntyre, 29 Leiden Journal of International Law 2016, 177, 186.
45 Arrest Warrant of 11 April 2000, Judgment, ICJ Reports 2002, 3 [76].
46 Gattini, in: Essays in Honour of Simma, 1168, 1175-6; Dissenting Gray, in: Crawford et al. (fn. 10) 589, 592-3.
47 Shaw, 33 Revue Belge de Droit International 2002, 554, 558-9.
Still, the notion free choice of means resembles a concept frequently used by the European Court of Human Rights (ECtHR), namely the margin of appreciation.48 The margin of appreciation is the ECtHR’s method of deference to national authorities.49 The concept roots in the thought that the national legislator is democratically elected and thus competent to implement international obligations in the national legal order.50 Often domestic courts do also have a wider range of possible remedy options and might therefore be better suited to address future conduct.51 In the same manner, the ICJ retains with the free choice of means approach a flexibility mechanism that follows a decentralized and subsidiary understanding of the international legal order. By applying this concept, the Court maintains the possibility to review alleged wrongful acts, but limits its own competence to pronounce specific actions the wrongdoing State is obliged to do.
Besides such considerations of judicial policy, there is another possible explanation of this deference. Principles of international responsibility are so broad in their application that they sometimes must first be translated into more specific domestic remedies (e.g. civil, criminal or administrative claims; contractual, quasi-contractual or tortuous liability) by national courts.52\medskip
III. The Court encourages States to resort to bilateral negotiation
Proceedings before the ICJ are sometimes characterized as a moderated and institutionalized form of negotiation.53 Negotiations must achieve a substantive consensual result54 whereas for adjudication the parties must only formally express their approval to the jurisdiction of the adjudicator.55 The Court however, has no competence to decide about the actual outcome of such negotiations56 leaving the parties alone with their “fair degree of action in interpreting and applying the terms of the treaty obligation in a concrete case”.57 In this sense, the Court’s judgment helps to solve certain preliminary aspects of a dispute,58 which later guide the parties to a consensual solution of their controversy.59
Against this background, the Court on several occasions including a jurisdictional decision60 and orders concerning provisional measures,61 encouraged States to engage in bilateral negotiations.62 Remarkably, the obligation to conduct negotiations even constituted the appropriate remedy in several judgments on the merits.63
For example in the Nicaragua Case,the Court avoided declaring an award for compensation for two reasons explicitly stated in the judgment. Firstly, the US did not appear before the Court64 making the Court unable to hear any arguments by the US in this regard.65 Secondly, the Court recognized that such a declaration might become an impediment to future negotiations.66 Implicitly, the tremendous opposition67 brought forward against the proceedings may have played a role in the Court’s deferential reaction.68
Nevertheless, even when encouraging States to negotiate, the Court remains responsive to future litigations, as shown in the Diallo Case. The Court first refrained from giving effect to the claim of compensation,69 but upon later re-submission by Guinea ascertained the amount of compensation owed by the Democratic Republic of Congo. The cross-references made to other human rights courts and adjudicative bodies70 reveal an ambition to ensure coherent adjudication in a fragmented legal order71 and an enhancement of the Court’s legitimacy by stepping into a dialogue with other courts.72\medskip
IV. The Court presumes a State’s good faith
Good faith is a fundamental principle of international law enshrined in Art. 2(2) United Nations Charter and Art. 26 respectively Art. 31(1) Vienna Convention on the Law of Treaties.73 It requires States to apply norms in spirit of the treaty74
48 See also Ulfstein, in: Klabbers/Peters/Ulfstein, The Constitutionalization of International Law, 2009, 126, 145; Tully, 15 International Community Law Review 2013, 459, 466; But see Bjorge, 4 Cambridge Journal of International and Comparative Law 2015, 181, 187-90.
49 Letsas, A Theory of Interpretation of the ECHR, 2007, 90.
50 Wildhaber, 23 Human Rights Law Journal 2002, 161, 163.
51 Nollkaemper, National Courts and the International Rule of Law 2011, 167; But see Leigh/Lustgarten, Cambridge Law Journal 1999, 509, 530″ 1.
52 Nollkaemper, (fn. 51) 192-3.
53 Case of the Free Zones of Upper Savoy and Gex, Provisional Measures, PCIJ Reports, Series A, No. 22, 13.
54 Barnidge, 36 Fordham International Law Journal 2013, 545, 549.
55 Peters, 14 EJIL 2003, 1, 30.
56 Gabčíkovo-Nagymaros Project, Judgment, ICJ Reports 1997, 7 [141].
57 Rosenne, Developments in the Law of Treaties 1945-1986, 1989, 176.
58 Wellens, Negotiations in the Case Law of the International Court of Justice, 30.
59 Vidigal, 6 JIDS 2015, 462, 480.
60 Aerial Incident of 10 August 1999, Jurisdiction, ICJ Reports 2000, 12 [53].
61 Passage through the Great Belt Case, Provisional Measures, ICJ Reports 1991, 12 [35]; Aegean Sea Continental Shelf, Provisional Measures, ICJ Reports 1976, 3, [38; 41].
62 Application of the Interim Accord of 13 September 1995, Judgment, ICJ Reports 2011, 644 [166]; Jurisdictional Immunities Judgment (fn. 6) [104]; Military and Paramilitary Activities in and around Nicaragua, Judgment, ICJ Reports 1986, 14 [290-291]; Ahmadou Sadio Diallo, Judgment, ICJ Reports 2010, 639 [163]; Certain Activities Carried out by Nicaragua in Border Area; Construction of a Road in Costa Rica along the San Juan River, Judgments ICJ Reports 2015 forthcoming, [142].
63 Fisheries Jurisdiction, Judgment, ICJ Reports 1974, 3[73]; Fisheries Jurisdiction, Judgment, ICJ Reports 1974, 175 [65]; Delimitation of the Maritime Boundary (Gulf of Maine), Judgment, ICJ Reports 1984, 246 [87].
64 Nicaragua Case Judgment (fn. 62) [10-11].
65 Still, the Court took in account the arguments presented in a US brochure submitted to the Court and spread among the GA and the SC, see Military and Paramilitary Activities in and against Nicaragua, Revolution Beyond our Borders’: Sandinista Intervention in Central America, 1985.
66 Nicaragua Case Judgment (fn. 62) [285].
67 Schulte, Compliance with Decisions of the International Court of Justice, 2004, 190-2.
68 Merrils, International Dispute Settlement5, 2001, 156.
69 Diallo Judgment (fn. 62) [163].
70 Ahmadou Sadio Diallo, Compensation, ICJ Reports 2012, 324 [13; 24; 33; 40].
71 Ulfstein, 4 JIDS 2013, 477, 480-2.
72 Remarkably, the Court usually shows great reluctance to engage in such dialogue, see Dupuy, EiH Simma (fn. 46), 862, 869-70; But see Nunner, Kooperation internationaler Gerichte, 309-10.
73 Vienna Convention on the Law of Treaties, 1980, 1155 UNTS 331.
74 Verdross/Simma, Universelles Völkerrecht, 1976, 234.
and give practical effect to decisions of the ICJ.75 This bars States from evading the decision by only cursory carrying out the ruling.76\medskip
Instead of directing a State to undertake or abstain from certain conduct, the Court repeatedly expressed its presumption of good faith.77 States may not engage in conduct which the Court has declared illegal. The rule stems from case law of the Permanent Court of International Justice (PCIJ). This court found itself not to be in a position to contemplate that its judgment will not be complied with.78 However, neither the PCIJ nor the ICJ ever attempted to explain the validity of this general rule or its dogmatic background.
Moreover, the ICJ referred to this rule in different contexts with miscellaneous interpretations. In the jurisdictional decision of the Nicaragua Case, the Court resorted to this rule to dismiss a preliminary objection,79 in which the respondent argued that the Court had no authority to supervise the implementation of a judgment on an ongoing-armed conflict.80
In other cases, the Court invoked this rule to dismiss claims for assurances and guarantees of non-repetition.81 When we take the Court’s stance for granted that it is not in a position to doubt that States will not comply with a judgment, then the prospective character of assurances and guarantees of non-repetition82 rings hollow simply because the Court is not concerned with States’ future conduct.
However, when the Court deals with treaties, the presumption of good faith seems properly warranted because the principle of good faith is undividable from the rule of pacta sunt servanda.83 For instance in the Armed Activities on the Territory of the Congo Case, the Court found the ‘Tripartite Agreement on Regional Security in the Great Lakes’ to be a sufficient commitment not to repeat the unlawful activities in question. The agreement indicated that the parties will “[e]nsure respect for the sovereignty and territorial integrity of the countries in the region and cessation of any support for armed groups or militias”.84
By analogy, we can expect the same legal effect from unilateral declarations.85 They are legally binding86 as long as they reveal a clear intention of a State to feel legally bound.87 For example in the Nuclear Test Cases, France’s unilateral declarations to abstain from further nuclear tests in the South Pacific convinced the Court that its adjudicatory function had disappeared88 because States can regard such a declaration to be a legally binding commitment.89 The Court avoided denouncing France’s nuclear tests to be illegal and to order France to cease from these wrongful acts. This restraint might be owed to the case’s political implications90 and France’s aggressive litigation strategy including non-appearance before the Court,91 non-compliance with the Court’s provisional order92 and the renunciation of the Court’s optional clause.93
Conclusively, the Court reserves the right to explicitly order specific conduct by a State only under “special circumstances”94, which are for the Court to determine. This strategy preserves for the Court a certain amount of discretion to decide whether its decision shall have declaratory, punitive or injunctive character.
We can draw a parallel to the jurisprudence within the World Trade Organization where the principle of good faith establishes a standard requiring the dispute procedure to be ‘fruitful’95 within the meaning of Article 3(7) Dispute Settlement Understanding.96 Similarly, litigations at the ICJ shall be ‘fruitful’ as well.97 Thus, it might be the case that the Court relinquishes to order a State to certain conduct, just because it would not add anything to the purpose of the litigation. The obligation in question continues to exist for the wrongdoing State and there is no need to order explicitly that the State has to adjust its conduct to legal conformity when no signs to the contrary exist.
V. The Court deems declaratory judgments to be adequate satisfaction
A declaratory judgment is tantamount to a mere restatement of the applicable law.98 It takes effect on the legal entitlements and obligations of the parties,99 but does not prescribe a
75 Gabčíkovo-Nagymaros Judgment (fn. 56) [142].
76 Paulson, 98 American Journal of International Law (AJIL) 2004, 434, 436; Critically denouncing good faith as a “legal rubber stamp” Chazournes/Angelini, 11 JIDS 2012, 1, 4.
77 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (second phase), Advisory Opinion, ICJ Reports 1950, 221, 228-9; Nuclear Tests Judgment (fn. 30)[60]; Military and Paramilitary Activities in and against Nicaragua, Jurisdiction, ICJ Reports 1984, 437 [101]; LaGrand Judgment (fn. 37)[124]; Armed Activities on the Territory of the Congo Judgment (fn. 10)[257]; Dispute regarding Navigational and Related Rights, Judgment, ICJ Reports 2009, 213[150; 155]; Interim Accord Judgment (fn. 62) [168]; Pulp Mills on the River Uruguay, Judgment, ICJ Reports 2010, 14 [278]; Jurisdictional Immunities Judgment (fn. 6)[138] Certain Activities & Construction of a Road Judgment (fn. 62) [141; 227-228];.
78 Case of the S.S. “Wimbledon”, Judgment, PCIJ Reports 1927, Series A, No. 01, 32; cited in Case concerning the Factory at Chorzów, Judgment, PCIJ Reports 1982, Series A, No. 17, 63 and later referred to as establishing a general rule in Dispute regarding Navigational and Related Rights (fn. 77) [150].
79 Nicaragua Case Jurisdiction (fn. 77) [101].
80 Ibid [99].
81 LaGrand Judgment (fn. 37) [124]; Armed Activities on the Territory of the Congo Judgment (fn. 10) [257]; Dispute regarding Navigational and Related Rights Judgment (fn. 77)[150]; Interim Accord Judgment (fn. 62) [168]; Pulp Mills Judgment (fn. 77) [278]; Jurisdictional Immunities Judgment (fn. 6) [138].
82 ILC, ASR Commentaries (fn. 5), Article 30 [9].
83 Yasuaki, 14 EJIL 2003, 105, 116-7.
84 Armed Activities on the Territory of the Congo Judgment (fn. 10) [256].
85 Salmon, in: Corten/Klein (eds.), Vienna Convention on the Law of Treaties, A Commentary2, Volume I, 2011, Article 26 [41].
86 Delbrück/Wolfrum, Völkerrecht2, Band I/3, 2002, 764-5.
87 Case concerning the Temple of Preah Vihear, Preliminary Objections, ICJ Reports 1961, 17, 31-2.
88 Nuclear Tests Judgment (fn. 30) [59].
89 Ibid [46].
90 Lellouche, 16 Harvard International Law Journal 1975, 614, 631-4.
91 Nuclear Tests Judgment (fn. 30) [15].
92 Ibid [19].
93 Ministère Français des Affaires Étrangères, 78 Revue Générale de Droit International Public (RGDIP) 1974, 822.
94 Certain Activities & Construction of a Road Judgment (fn. 62) [141].
95 Panizzon, Good Faith in the Jurisprudence of the WTO, 2006, 112.
96 Dispute Settlement Understanding, Annex 2 to the Marrakesh Agreement establishing the World Trade Organization, 1994, 1867 UNTS 3.
97 Northern Cameroons Preliminary Objections (fn. 31) 33-4.
98 Case concerning the Factory at Chorzów, Interpretation, PCIJ Reports 1927, Series A, No. 13, 20.
99 Northern Cameroons Preliminary Objections (fn. 31) 33-4.
certain proactive behavior that a State ought to undertake.100 The purpose of a declaration is rather broad, namely to clarify international norms101 and affirm their binding character.102 Declaratory judgments are hence the least intrusive form of a remedy.103
Brownlie argues that every judgment is of declaratory character since all awards or orders necessarily require the pronouncement of the underlying obligation and the corresponding right.104 The Court implicitly rejected this view in its decision in the Dispute regarding Navigational and Related Rights. The Court distinguished between a formal finding of illegality and the more intrusive order to cease an act and further held that it follows from the common operation of law that the conducting State must cease the unlawful behavior. An explicit order for cessation is only necessary when special circumstances compel the Court to do so.105 The Court on several occasions found a declaration of unlawful conduct to be an appropriate remedy without further directing the perpetrator State to behave in a certain manner as submitted by the violated State.106
Prominently, in the Genocide Case,the Court took a declaratory judgment as adequate satisfaction instead of compensation because it was unable to find a sufficient nexus between Serbia’s obligation to prevent the commitment of genocide and the atrocities in Srebrenica.107 The Court attempted to justify this decision with the non ultra petita rule since the applicant counsel had admitted that such a declaration might be appropriate for certain violations of the convention.108 But one may also say that this decision was the result of an overall attempt to balance the interests of both litigation parties.109 This reveals the Court’s commitment to political constraints110 but ignores the suffering of the victims and their relatives.111
VI. The Court reveals shifts in fashioning remedies: Making international law matter?
As mentioned above, in the Arrest Warrant Case, the Court displayed a more confident approach in awarding remedies by ordering Belgium to cancel an arrest warrant.112 Several recent decisions followed a similar path including the instruction to withdraw administrative, police and military forces from foreign land,113 the order to review the legality of detentions,114 and the command to transfer persons accused of genocide to the International Criminal Tribunal for the former Yugoslavia.115 Moreover, the Court required Italy to render domestic court decisions to be unenforceable,116 directed Senegal to prosecute or extradite an accused person,117 called upon Japan to renounce any permit to kill whales,118 and required Nicaragua to repeal extant legislation.119
This reveals a shift to performance remedies.120 In comparison to other remedies, there is dispute about whether performance remedies are even available for international courts.121
To explain this behavior, we should contemplate the ICJ’s changing role in turning into a more value-based court.122 Instead of merely deciding the concrete dispute in front of him, the Court increasingly takes part in a progressive development of the international judiciary to use judicial decisions as a vehicle to promote certain values and shape normative regimes.123 This also stands with regard to remedies.124 Besides repairing a past wrong, remedies shall also maintain the continuance of the legal order.125 Scholars argue that granting merely minimal remedies weakens the Court’s impact126 as well as indeterminate formulations of legal consequences harm a decision’s legitimacy.127 Most litigation parties have become increasingly interested to call for more specific remedies,128 whereas in earlier times the clarification of an issue of law was the paramount objective of proceedings. Conclusively, the Court turns to remedies that are more specific because changing operative spaces give him the opportunity to do so. In light of these circumstances,
100 Djajic, 9 San Diego International Law Journal 2008, 329, 357.
101 Kolb, The International Court of Justice, 2013, 756.
102 Fasoli, 7 Law and Practice of International Courts and Tribunals 2008, 177, 192.
103 Gray, Judicial Remedies in International Law, 1987,98; Dissenting McIntyre (fn. 44) 194-5.
104 Brownlie, (fn. 4) 560; Dissenting McIntyre, 25 Hague Yearbook of International Law 2012, 107, 116-7.
105 Dispute regarding Navigational and Related Rights Judgment (fn. 77) [148].
106 Corfu Channel Judgment (fn. 8) 35-6; Land and Maritime Boundary between Cameroon and Nigeria, Judgment, ICJ Reports 2002, 303 [319]; Arrest Warrant Judgment (fn. 45) [75]; Interim Accord Judgment (fn. 62) [169];Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment, ICJ Reports 2007, 43 [463; 466; 469]; Questions of Mutual Assistance in Criminal Matters, Judgment, ICJ Reports 2008, 177 [203-204]; Pulp Mills Judgment (fn. 77) [269]; Whaling in the Antarctic, Judgment, ICJ Reports 2014, 226 [246]; Certain Activities & Construction of a Road Judgment (fn. 62) [139; 224].
107 Genocide Judgment (fn. 106) [462-463].
108 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Oral Proceedings, CR 2006/32 [23].
109 Shany, Hebrew University International Law Research Paper No. 07-08 2008, 12.
110 Mennecke/Tams, 25 Sicherheit und Frieden 2007, 71, 73; But see Milanović, 18 EJIL 2007, 669, 688-92.
111 Tomuschat, 5 Journal of International Criminal Justice 2007, 905, 910-2; Gattini, 18 EJIL 2007, 695, 711-3; But see Dupuy, 111 RGDIP 2007, 243, 255.
112 Arrest Warrant Judgment (fn. 45) [76].
113 Land and Maritime Boundary Judgment (fn. 106) [314-315]
114 Avena Judgment (fn. 37) [121]
115 Genocide Judgment (fn. 106) [465].
116 Jurisdictional Immunities Judgment (fn. 6) [137].
117 Obligation to Prosecute or Extradite Judgment (fn. 41) [121].
118 Whaling in the Antarctic Judgment (fn. 106) [245].
119 Certain Activities & Construction of a Road Judgment (fn. 62) [138].
120 Milano, 35 Netherlands Yearbook of International Law 2004, 85, 132.
121 Brown, A Common Law of Adjudication, 2007, 209-10.
122 von Bogdandy/Venzke, In Whose Name? A Public Law Theory of International Adjudication, 2014, 56-62.
123 Grossmann, 86 Temple Law Review 2013, 61, 68-76.
124 Shaw, in: Fitzmaurice/Sarooshi (eds.), Issues of State Responsibility, 2004, 19, 32-3.
125 Shelton, Remedies in International Human Rights Law, 2000, 45; Vidigal (fn. 59) 484.
126 Tomuschat, in: Zimmermann et al. (fn. 26), Article 36 [37]; Shany, Assessing the Effectiveness of International Courts, 2014, 122.
127 Franck, 82 AJIL 1988, 705, 712.
128 See exemplary recent applications in Jadhav Case, Application by India 30-2; Dispute over the Status and Use of the Waters of the Silala, Application by Chile [50d-e]; Certain Iranian Assets, Application by Iran [33e].
the traditional view that remedies at the ICJ are strictly dependent on the affected State’s acceptance of its own liability129 cannot be declared obsolete, but at least reaches its limits.
Admittedly, in all of the mentioned decisions, the Court still emphasized the free choice of means,130 presumed a State’s good faith,131 or supposed that a declaratory judgment constitutes appropriate satisfaction.132 This reveals that judicial activism and judicial restraint are not mutually exclusive133 but that such an approach deserves the title of a pro-active, future-oriented judicial policy.134
C. Conclusion
This inquiry employed a unique perspective on the Court’s approach to remedies. It identified mechanisms that the Court uses when it rules on remedies. The analysis explained the reasons and motifs behind these mechanisms and classified them in the context of general international law and international litigation. Lastly, the paper also revealed that the Court’s behavior experienced a shift in recent years as the Court begins to reveal a bolder understanding of its remedial power. Reasons for this development lie in the general evolution and altered self-understanding of international adjudicative bodies as well as changing expectations of litigating parties.
129 Evans, in: Evans (fn. 4), 173, 175.
130 Arrest Warrant Judgment (fn. 45) [76]; Avena Judgment (fn. 37) [131]; Jurisdictional Immunities Judgment (fn. 6) [137]; Obligation to Prosecute or Extradite Judgment (fn. 41) [121].
131 Land and Maritime Boundary Judgment (fn. 106) [318]; Arrest Warrant Judgment (fn. 45) [75]; Whaling in the Antarctic Judgment (fn. 106) [246]; Certain Activities & Construction of a Road Judgment (fn. 62) [141; 227-228].
132 Land and Maritime Boundary Judgment (fn. 106) [319]; Genocide Judgment (fn. 106) [465]; Certain Activities & Construction of a Road Judgment (fn. 62) [139; 224].
133 Gray, in: Roman /Alter/Shany (eds.), The Oxford Handbook of International Adjudication, 2014, 871, 875-7.
134 Kooijmans, 56 International and Comparative Law Quarterly 2007, 741, 753.