This article provides an interesting look at how the ICJ’s provisional orders (orders issued before hearing full argument on the merits, which can take years) are obeyed or not obeyed. Generally, geopolitical thought in the realist school acknowledges that power is the major determinant of how states act. Liberal theorists and other schools of thought attempt to argue that institutional and cultural values can have their own force in determining state action.
This article therefore suggests and helps provide evidence for the limits of those liberalist arguments. It points out that ICJ provisional orders, which are supposed to be binding in these types of contentious cases through the institutional power of the ICJ as the UN’s top court, are rarely followed. It suggests, therefore, that they are followed only when power relations suggest there’s good reason for a state to follow it for its own goals.
In 5 of 15 cases the parties fully complied with the court’s order.
In 3 of 15 cases the parties partially complied.
In 7 of 15 cases they did not comply at all.
Compliance has also decreased in recent years. This is likely because prior power and pressure for compliance was supplied by the United States and the West, but as the world becomes increasingly chaotic and multipolar once more (particularly in the past 5 years), states become less and less inclined to abide by rulings because they doubt there will be Western retribution or pressure as a result (or they think they can weather that retribution with help from China, Russia, and so on).
Of course, it’s notable that at the same time that provisional measures see less compliance than ever, the court has suddenly decided to issue many, many more. From 1945-95, there were just 10 provisional measures ordered. In the past 10 years, the court ordered 11 provisional measures, by contrast. The increasing attempt of the ICJ to assert its authority through these provisional measures rather than the slow development of merits cases reflects its decision in 2001 to effectively assert that they had this power decisively and always. This does, however, give a very “League of Nations” feel. As the world becomes increasingly multipolar and compliance becomes increasingly irrelevant and nonexistent, the Court is also asserting more power to dictate state actions. This seems increasingly likely to consign the Court to the status of a paper tiger, unless states begin to enforce compliance with its rulings, something that seems less likely as well.
1 Comment
This article provides an interesting look at how the ICJ’s provisional orders (orders issued before hearing full argument on the merits, which can take years) are obeyed or not obeyed. Generally, geopolitical thought in the realist school acknowledges that power is the major determinant of how states act. Liberal theorists and other schools of thought attempt to argue that institutional and cultural values can have their own force in determining state action.
This article therefore suggests and helps provide evidence for the limits of those liberalist arguments. It points out that ICJ provisional orders, which are supposed to be binding in these types of contentious cases through the institutional power of the ICJ as the UN’s top court, are rarely followed. It suggests, therefore, that they are followed only when power relations suggest there’s good reason for a state to follow it for its own goals.
In 5 of 15 cases the parties fully complied with the court’s order.
In 3 of 15 cases the parties partially complied.
In 7 of 15 cases they did not comply at all.
Compliance has also decreased in recent years. This is likely because prior power and pressure for compliance was supplied by the United States and the West, but as the world becomes increasingly chaotic and multipolar once more (particularly in the past 5 years), states become less and less inclined to abide by rulings because they doubt there will be Western retribution or pressure as a result (or they think they can weather that retribution with help from China, Russia, and so on).
Of course, it’s notable that at the same time that provisional measures see less compliance than ever, the court has suddenly decided to issue many, many more. From 1945-95, there were just 10 provisional measures ordered. In the past 10 years, the court ordered 11 provisional measures, by contrast. The increasing attempt of the ICJ to assert its authority through these provisional measures rather than the slow development of merits cases reflects its decision in 2001 to effectively assert that they had this power decisively and always. This does, however, give a very “League of Nations” feel. As the world becomes increasingly multipolar and compliance becomes increasingly irrelevant and nonexistent, the Court is also asserting more power to dictate state actions. This seems increasingly likely to consign the Court to the status of a paper tiger, unless states begin to enforce compliance with its rulings, something that seems less likely as well.