Application of the Bona Fide Principle to State Party Compliance with Court Judgments
Keywords:
Dispute settlement, compliance, execution, court, judgments, good faithAbstract
A decision made by the international court of justice is final, irrevocable, and enforceable against the parties. Such decisions of the Court have binding effect between the parties and with regard to a specific matter, according to Article 59 of the Statute. A judgment's ability to be executed by the parties is justified by the fact that it has binding force. As one can see, many States continue to disregard and refuse to implement court judgements, despite the fact that these judgments have a binding legal force. The act of non-compliance reduces the effectiveness of the courts as "solution factories." This document stands to illustrate on state party comportment in the recognition and execution of the judgements of the world court, calling on the said states to execute the judgment of the court in a good faith spirit. The analyses in the document were illustrated using case law, specialized books and articles as sources of inspiration. Hence we thus arrived at the understanding that, the execution of court judgments is
highly unrealistic in the absence of a good faith spirit. However, once the call for compliance appears to be complicated, besides making use of the enforcement measure set forth by the Charter of the UNs, external political pressure might be given preference as a remedy to non-compliance.
References
If something or someone is qualified as bona fide, it means they are genuine or real...
http//www.collinsdictionary.com
Elizabeth Zoller, la bonne foi en droit international public, Paris 1977.
See art. 60 of the statue of the ICJ
See the Statute of the ICJ article 59.
See the Mavrommatis Palestinian Concession case.
Asanji Roland Ndikum, (2020) the good faith principle in the settlement of international disputes,
PhD thesis presented and defended publicly (unpublished), University of Yaoundé 2, p 7.
Idem
Idem
Asanji Roland N (2022), ‘The goods and odds of state parties in dispute settlement processes’
journal of legal studies and research, vol 8, p 192.
Eva Rozemarijn Rieter, (2010), Provisional measures in International Human right adjudication,
Intersentia p15.
Ibid
See art. 60 of the statue of the ICJ
See the Charter of the UNO in its article 2(2)
See the statute of the International Court of Justice, art 38, San Francisco 1945.
Sources of Law – Public International Law: a beginner’s guide ...https:// guides.loc.gov, sources
of law.
See the definition of good faith, in Elizerberth Zoller, la bonne foi en droit international Public,
Paris 1977.
Damien Charlotin, (2020) “Authorities” in International Dispute Settlement: a Data Analysis,
Corpus Christi College. P15.
This matches especially when assimilated to the US example, usually include many different
sources in their “table of authorities”. See, e.g., Metalclad Corporation v. The United Mexican
States, ICSID Case No. ARB(AF)/97/1, Claimant’s Reply (21 August 1988), in which cases,
statutes and textbooks are listed in the claimant’s table of authorities.
Demien Charlotin upcit note 18, p15.
The frequent application of this Latin expression is widespread in English and German speaking
countries, but literal translations are more commonly used elsewhere: for example, cosa juzgada,
chose jugée, or cosa giudicata in Spanish, French, and Italian respectively.
Niccolò Ridi, (2018), ‘Precarious Finality? Reflections on res judicata and the Question of the
Delimitation of the Continental Shelf case’, King’s College London Dickson Poon School of Law
p 4
Ibid p 4
Ibid p 4
Elizerberth Zoller made clear the point that good faith might be presumed, but bad faith cannot be
presumed.
Reports of the ICJ 2002, land and maritime dispute between Cameroon and Nigeria.
Roger-Claude Liwanga & Casondra Turner, (2021), ‘Demystifying the Legitimacy of International
Tribunals: Case Study of the International Court of Justice and Its Decisions on Armed Activities
in the Congo’ 35 Emory Int'l L. Rev. 413. Available at: https://scholarlycommons.law.emory.edu/
eilr/vol35/iss3/2.
Ibid p 431
Ibid p 431
Ibid p 432
That is state party compliance and the pacta sunt servanda principle.
LAIMZON, (AP), “Jurisdiction and compliance, Recent Decisions of the international court of
justice”, 200 p. 38 op cit.
The 1961 Vienna Convention, article 26 (pacta sunt servanda).
International court of justice, its future role after 50 years. www. Google books.cm, 18-10-2014,
:05pm.
Mutlaq Majed AI-Qahtani, (2003), Enforcement of International Judicial decisions of the
International Court of Justice In Public International Law, A Thesis Submitted for the Degree of
Doctor of Philosophy to the Faculty of Law and Financial Studies, University of Glasgow, pp 23.
Idem.
It goes in line with the ideas of judge Evensen who stated in the Continental Shelf case between
Tunisia and Libya that; I share the view of the Court that clearly the Court's task is to render a
binding and final 'judgment in a contentious case in accordance with Articles 59 and 60 of the
Statute and Article 94, paragraph 2, of the Rules of Court, a judgment which will have therefore the
effect and the force attributed to it under Article 94 of the Charter of the United Nations and the
said provisions of the Statute and the Rules of the Court' (Judgment, paragraph 29). Of course the
Court has not been asked to render an advisory opinion ... Nor could it agree to give in any other
way solely to give "guidance" to the Parties to the present dispute which would lack the essential
elements of a formal judgment (UN Charter, Art. 96). I share the view that the Court in its Judgment
should lay down the practical method for the application of the principles and rules of international
law with the degree of precision applied by the Court in the operative part thereof, ICJ Reports,
(1982), pp. 279-280, paragraph 2.
ICJ Reports (1984), pp. 418.
ICJ Reports, 1986, pp. 160 & 218.
The International court of justice, its future role after 50years, op cit. www.books google.cm. 18-
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ICJ Rep. 6 at 40, Territorial Dispute (Libya/Chad)
Following the judgment of October 2002, the ICJ awarded to Cameroon the lake Chad boundary
followed by 30 villages and the Bakassi area, and few to Nigeria. After the ICJ judgment, Nigeria
issued a statement which appeared to have accepted part of the decision which she considered as
fair and favourable, while rejecting the rest of which it claimed it as unacceptable. Nigeria proofed
to be a recalcitrant though both countries had agreed in advance to respect whatever decisions
coming from the court. It is equally out of long lasting enforcement measure that Nigeria finally
bowed to the verdicts of the court. Thus, it is in this line that one may judge the dalliance to
compliance from the Nigerians as an instance of lack of good faith. ICJ Reports 2002 Nigeria /
Cameroon.
See for example the case of force majeure, a circumstance of necessity, or a fundamental change of
circumstance that may render difficult or impossible the performance of an engagement, forinstance, circumstances which are highly debatable as to the nature in which it may affect the State
in question.
GRAY (C) (2003), « The use and abuse of the international court of justice, cases concerning the
use of force after Nicaragua », 39p
Heather Jones (L), ‘’Why Comply? An Analysis of Trends in Compliance with Judgments of the
International Court of Justice since Nicaragua.’’ CHI.-KENT J. International & Company Lmt, Vol
XII, as a point of example, see, Territorial Dispute (Libya/Chad), 1994 I.C.J. 6, at 18-19, 28 (Feb.3);
Land and Maritime Boundary Between, (Cameroon v. Nigeria), 2002 I.C.J. 303, at 6-7, 23 (Oct.
, available at http://www.icj-cij.org/docket/files/94/7453.pdf.
LIAMZON (A-P) (2008), “Jurisdiction and compliance recent decisions of the international court
of justice”, p. 2.
The 1969 Vienna convention, article 26 “every treaty in force is binding upon the parties to it and
must be performed by them in good faith”
ICJ statue, article 36(2), “The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a). the
interpretation of a treaty; (b). any question of international law; (c). the existence of any fact which,
if established, would constitute a breach of an international obligation; (d). the nature or extent of
the reparation to be made for the breach of an international obligation.”
FRITZ Robert (SP) cites Guggenhen who compares Municipal laws from international law,
affirming with LAUTERPACHT that the latter is imperfect. See equally Kelsen in his book titled
“Théorie pure du droit”, who equally described international law as Primitive. p. 313.
ICJ Report of 1986 and, 1994 respectively.
See the Green Tree agreement signed by the president of the republic of Cameroon Mr Paul BIYA
and President OLUSOGONE OBASANJO of Nigeria in June 2006.
As for what is required from each party, the creditor state to the judgment is supposed to be fair and
honest towards the debtor state by not putting forth acts that may render compliance difficult to the
debtor state. On the other hand, the debtor state to the judgment equally needs the spirit of loyalty
and honesty in the execution exercise in order to give out its full value as portrayed in the judgment
Reports of the ICJ, Nuclear Tests, Australia v.France/New Zealand v.Franc, judgment rendered
moot, December 1974.
Idem.
As a point of reference, one can look at the land and maritime dispute case between Cameroon and
Nigeria where the Federal Republic of Nigeria, accepted the court’s jurisdiction through or
unilateral declaration done in 1964, but afterward was unfair in its actions towards the same court,
where it resorted to a series of non founded objections on the jurisdiction and admissibility towards
the Cameroonian claim of 1994.
With respect to the said request, the court rejected the application with the pretex that Nigeria was
trying to delay execution.
Fritz Robert (S-P) (2006), l’exécution des décisions de la cour international de justice, faiblesses et
Malentendus université de Montréal, p. 3 et 145.
Mutlaq Majed AI-Qahtani, (2003), Enforcement of International Judicial Decisions of The
International Court of Justice In Public International Law, A Thesis Submitted for the obtention of
a PhD in the Faculty of Law and Financial Studies, University of Glasgow, September pp 56.
This was well illustrated in the Chorzow factory case where the court said; It is, moreover, a
principle generally accepted in the jurisprudence of international arbitration, as well as by municipal
courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation
or has not had recourse to some means of redress, if the former Party has, by some illegal act,
prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal
which would have been open to him.
Thus the Court in Gabcikovo Nagymaros Project case, for instance, rightly accepted Slovakia's
argument as to the non-invocability of that impossibility by Hungary, because of its own beach of
its obligations under the 1977 Treaty. See ICI. Rep. (1997), paras. 49-59.
In this case, the court ruled in favour of Belgium by saying; If the awards are definitive and
obligatory, it is certain that the Greek Government is bound to execute them and to do so as they
stand: it cannot therefore claim to subordinate payment of the financial charge imposed upon it to
the conditions for the settlement of the Greek external public debt, since that has not been admitted
in the awards. Nor can it make the sacrifice of any right of the Company recognized by the awards
a condition precedent to payment. Since the Greek Government states that it recognizes the arbitral
award as possessing.
Mutlaq Majed AI-Qahtani, up cit note 757.
The statement read, "being a nation ruled by law we are bound to continue to exercise jurisdiction
over these areas in accordance with the constitution," and lion no account will Nigeria abandon her
people and their interests
Mutlaq Majed AI-Qahtani, supra note 762, pp 30.
Mutlaq Majed AI-Qahtani, supra note 762, pp 34.
The court thus ruled that; any question as to the jurisdiction of the Court, deriving from an alleged
lapse through changed circumstances, is resolvable through the accepted judicial principle
enshrined in Article 36 paragraph 6 of the Court's Statute, which provides that "in the event of a
dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the
Court". In this case such as dispute obviously exists, ... and requires the Court to pronounce upon
the question of its jurisdiction. This it has now done with binding force.
The international law commission, on state responsibility, 2001.
Aloysius Llamzon (P) (2008) ‘Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice’’, European Journal of International Law, Vol. 18 no.5 © EJIL
Heather Jones L, Why Comply? ‘’An Analysis of Trends in Compliance with Judgments of the
International Court of Justice since Nicaragua’’, Chi.-Kent J. International & Company. Ltd.
Aloysius P. Llamzon (2008), Jurisdiction and Compliance in Recent Decisions of the International
Court of Justice, European Journal of International Law, (quoting Constanze Schulte (2004)),
Compliance with Decisions of the International Court of Justice 403 Philippe Sands et al. eds.,
Oxford University Press
ICJ Reports, (1994) Territorial Dispute (Libya / Chad),
Heather Jones L, supra note 769, pp 61.
The Namibian heard of state declared that; as a law abiding nation, and consistent with our
undertaking, I wish to ensure the international community that Namibia will abide by the verdict of
the ICJ and respect it fully. See Heather J L, note 771.
See the Charter of the UNs, article 94(1).
ICJ Reports, provisional measures, (Germany/USA), judgment of 27 June 2001, available at
http//www.icj.cij.org/dockets/104/7736pdf.
ICJ Reports, (Mexico/USA), judgment of 3rd Feb 2003, available at http//www.icj-
cij.org/dockets/128/8188pdf.
Heather Jones L, supra note 769, pp 64.
The UNs set forth a commission to facilitate the implementation of the judgment. This commission
had to ensure that that judgment was fully implemented, taking into consideration the protection of
the rights of the population living in in the affected areas.
