Non-Recognition and Non-Execution of the Decisions of International Judicial Bodies

Author Name(s): Maria V. Krivenkova
Author Email: MVKrivenkova@kpfu.ru

Abstract

Holding the state accountable for the commission of an internationally wrongful act can be carried out by the injured entity directly or by contacting the international judicial bodies. The very process of resolving a dispute in such bodies is significantly different from the domestic judicial process, and court decisions taken by the international bodies differ significantly from the decisions of domestic courts not only in the form, in which the responsibility is laid on the offending state, but also in the way, in which such decisions are implemented. Often, the international courts go far beyond the literal interpretation of those international treaties and agreements that form the basis of law enforcement, which raises the question of whether the states have the right not to recognize and not to execute decisions of the international judicial bodies. Taking into account that the creation of norms is carried out on the basis of coordination of the will of the contracting states, and the norms themselves are not contained in the power regulations, but in the treaies, it is quite possible to change and terminate them, including treaties on the establishment of international judicial bodies. The option of withdrawing from the treaty that has established such an international judicial body by denouncing it in order to refuse recognition of its mandatory jurisdiction is not excluded. If the state as a whole sees the feasibility of the further existence of this international judicial body and is interested in interacting with it, but considers its individual decisions as contrary to domestic interests or politically biased beyond the jurisdiction of the court, it has the right to resort to the extremities – to refuse of complying with the body’s decision. The right of the states to non-recognition and non-execution of the decisions made by the international judicial bodies is not enshrined in any international treaty or statute of an international justice body, but the states actually resort to such actions, and denying this right of a state or imposing a ban on such actions of the states is counterproductive, as it may give rise to a question if there is a need to participate in the international treaties that have established the relevant judicial bodies.

Introduction

The implementation of international responsibility does not occur automatically after the commission of an unlawful act, it shall be imputed to the state as a subject of international law. The victim subject of the international law has the right to act directly or through appropriate international judicial bodies when holding the offender accountable. Holding accountable under the international responsibility through the international judicial bodies has its own specific nature, which significantly distinguishes the international law enforcement process from the domestic one. The main difference is that at the domestic level, the legal force of decisions of the law enforcement bodies is not subject to doubt and discussion, and the decisions of the national courts that have entered into force are binding, regardless of whether the respondent is a private or public entity. It seems that one of the reasons for this is that the state does not directly participate in the creation of domestic judicial bodies, they are formed on the basis of the power separation principle, and not at the request or whim of the state as a legal subject. At the international level, judicial bodies are created by agreement between the states, which, in addition, by reaching an agreement, vest the bodies they create with a certain amount of authority and determine their competence Similarly, the states act in the development and signing of sectoral international treaties governing certain types of relations included in the subject of international law – they determine the jurisdiction of disputes arising from the non-fulfillment or improper fulfillment of the international obligations under such treaties. At present, the main problem causing the state’s perplexity is that the decisions of the international courts often go far beyond the literal interpretation of those international treaties and agreements that form the basis of law enforcement.

Conclusion

Therefore, the solution to this problem does not seem to be in expansion of the judicial function of the court to include greater opportunities to verify compliance with its decisions, as suggested, for example, by Keller H. and Marty S. [12, P. 850]. Such an expansion of functions will not only lead to an additional burden on the courts, which are already overloaded, but will also lead to the exact opposite effect – a desire of the states to leave the jurisdiction of international courts. We believe that it is necessary to state that the right of states to non-recognition and nonexecution of the decisions made by the international judicial bodies, without being enshrined in any international treaty or statute of the international judicial body, nevertheless, exists ipso facto. Denial of this right of the state and any prohibition of such actions of the states in the presence of a serious conflict between the need to comply with the decision of the international judicial body and the need to comply with the national interests can lead to negative consequences in the long term; namely, it may call into question the need for the states to participate in the international treaties, which have established the relevant judicial bodies

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