[Bài tạp chí] After the arbitration: does non-compliance matter ?

Trung tâm SCIS giới thiệu bài viết của TS. Trương Minh Huy Vũ (giám đốc SCIS) và NCS. Nguyễn Ngọc Lan (Đại học Cambridge, Anh). Bài viết phân tích về tác động của các phán quyết từ Tòa án quốc tế tại các vụ kiện trong đó có một quốc gia tuyên bố không công nhận phán quyết của Tòa. Bài viết được đăng lần đầu trên trang thông tin chuyên ngành Asia Maritime Transparency Initiative, thuộc Trung tâm nghiên cứu chiến lược và quốc tế (CSIS), Mỹ.



Photo: AMTI 

 

International law does not contain an enforcement mechanism comparable to those of domestic legal systems. However, in the majority of cases, states do comply with the decisions of international courts and tribunals, albeit to varying extents. The instances in which states explicitly defy courts’ decisions are few and far between.

 

Two previous cases where states explicitly announced that they would not comply with the decision of a dispute settlement body are relevant to the Philippines v China arbitration. These are the Nicaragua v United States case before the International Court of Justice (ICJ) and the Arctic Sunrise case (Netherlands v Russia) before a UN Convention on the Law of the Sea (UNCLOS) Annex VII arbitral tribunal.

 

Nicaragua v United States

 

In the Nicaragua v United States case, after the ICJ found that it had jurisdiction to entertain Nicaragua’s claims, the United States decided not to participate in the merits phase of the case. The United States further showed its disapproval by terminating the 1955 Treaty on Friendship, Commerce, and Navigation between Nicaragua and the United States and withdrawing its declaration under Article 36(2) of the UN Charter, which together provided the basis for the court’s jurisdiction in the case. In its 1986 judgment on the merits, the ICJ held that the United States had violated both treaty law and customary international law by supporting the Contra rebels, and ordered the United States to refrain from all such acts and make reparation to Nicaragua.

 

Instead the United States ignored Nicaragua’s request for negotiations on compensation and refused to stop its support for the Contras. Faced with the United States’ outright defiance of the decision, Nicaragua tried to enforce the judgment through various platforms. Article 94(2) of the UN Charter says, “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 Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” Nicaragua accordingly turned to the UN Security Council, but several draft resolutions were never adopted due to the United States’ veto as a permanent member of the council.

 

Nicaragua then turned to the UN General Assembly, where its endeavors proved to be more successful. The General Assembly adopted four resolutions calling for “full and immediate compliance with the Judgment of the International Court of Justice.” The United States, however, continued to say that the ICJ did not have jurisdiction in the case. Even as it began to bring claims before the ICJ again for damages, Nicaragua elected a new president who was backed by the United States and subsequently discontinued the proceedings in 1992.

 

The Nicaragua v United States case was perhaps the most prominent example of a state that did not appear before an international court and then openly defied its final decisions. In some ways, Nicaragua did not succeed in securing full U.S. compliance with the judgment. However, the litigation was not at all useless.

 

Its strategy to resort to the Security Council and General Assembly had the effect of securing publicity for the issue, which helped convince the U.S. Congress to cut-off aid to the Contras in 1988. The United States subsequently lifted its trade embargo against Nicaragua in 1990 and provided the new government of Violeta Chamorro with a significant aid package. So, U.S. non-compliance notwithstanding, Nicaragua’s initiation of the case and its subsequent strategy eventually helped secure its intended outcome.

 

Arctic Sunrise

 

In the Arctic Sunrise case, Russia rejected arbitration initiated by the Netherlands in 2013 after Moscow seized the Arctic Sunrise, which was flying the Dutch flag, and its crew of Greenpeace activists. Russia refused to appear before the International Tribunal for the Law of the Sea (ITLOS) in the case for provisional measures and the Annex VII arbitral tribunal in the merits phase on the grounds that both tribunals lacked jurisdiction.

 

Russia did not comply with the request of ITLOS to immediately release the Arctic Sunrise and allow the non-Russian crew members to leave the country. However, Russia eventually implemented all the measures asked of it by ITLOS. Even though Russian authorities insisted that they released the vessel and crew according to domestic legislation and not because of the decision of the international court, the ultimate effect was the same. In August 2015, an Annex VII arbitral tribunal ordered Russia to compensate the Netherlands, which Russia has so far refused to do.

 

The Nicaragua v United States and Arctic Sunrise cases show that non-appearance does not necessarily lead to permanent non-compliance, whatever the rhetoric used. It may be tempting, therefore, to draw an analogy between these and the Philippines v China case by envisioning a scenario in which Beijing, despite its rejection of the arbitration, will come to terms and comply, at least in large part, with the arbitral award. Nevertheless, one should be cautious about jumping to such conclusions. The main reason being that the subject-matter of the cases differs fundamentally.

 

Unlike the South China Sea disputes, the seizure of the Arctic Sunrise was an isolated incident which involved only the two parties in the case. It was not a long-standing, politically sensitive dispute. As a result, the stakes in Russia “backing down” and were not as high as would be the case for China. In this regard, the Nicaragua v United States case may be of more relevance, given its political sensitivity.

 

The lack of enforcement mechanisms in international law does not mean that there are no costs to non-compliance. The few instances in which states openly defied a court or arbitral tribunal’s decisions have mostly involved great powers. But even in those cases, decisions that were initially ignored were eventually complied with to a certain extent.

 

About Lan Nguyen
Lan Nguyen is a PhD candidate at the Faculty of Law, University of Cambridge. She holds an LLM from the University of Cambridge and has worked as a lecturer and researcher of international law at the Diplomatic Academy of Vietnam in Hanoi. 


About Truong Minh Vu

Truong-Minh Vu is the director of the Center for International Studies (SCIS) at the University of Social Sciences and Humanities in Ho Chi Minh City. He is co-editor of the book Power Politics in Asia’s Contested Waters – Territorial Disputes in the South China Sea (Springer, 2016).

 

Asia Maritime Transparency Initiative  (amti.csis.org)

 

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