One of the main interests of a judgment creditor in a litigation before the International Court of Justice(hearinafter “ICJ”) is the enforcement of a decision to allow the judgment creditor to actually enjoy its legally confirmed right. The major ...
One of the main interests of a judgment creditor in a litigation before the International Court of Justice(hearinafter “ICJ”) is the enforcement of a decision to allow the judgment creditor to actually enjoy its legally confirmed right. The major problem of the current enforcement machinery with regard to the decisions of the ICJ is that, unlike the domestic legal systems of each State, there are no such institutions that are thoroughly centralized and systemic. Although the Security Council functions as an institution for enforcement of ICJ judgments based on Art. 94(2) of the Charter of the United Nations(hearinafter “UN Charter”), its systems, procedures or rules for enforcement are not well-organized and it is unwilling to take coercive measures to enforce ICJ judgments. From this perspective, financial penalties can be an effective means to support and improve the current enforcement system. For more detailed analysis, three issues were discussed. First, based on the reasonable interpretation of Art. 94(2), the Security Council is not an exclusive organ for the enforcement of ICJ decisions, there are no clear legal grounds for the ICJ to function as an enforcer. Second, treaties including the UN Charter, the ICJ Statute and the Rules of the ICJ(1978), customary international law and general principles of law were analyzed and a conclusion was made that there are currently no clear grounds on which imposing financial penalties is considered lex lata. Third, analysis of ICJ’s recent decisions clearly shows its changing position towards involving in a post-decision phase. Once introduced, imposition of financial penalties is expected to function as a subsidiary means to support the existing enforcement proceedings by the Security Council. Further, from the fundamental perspective, it may contribute for more effective enforcement of ICJ decisions and voluntary compliance by a judgment debtor even without referring to enforcement proceedings due to enhanced credibility for the enforcement system of ICJ decisions.