The International Court of Justice and the Enforcement Gap: Law Without  Power

INTRODUCTION:

The ICJ, the UN’s principal judicial body, plays a vital role in the international legal order by  settling disputes between states and giving advisory opinions on legal questions referred by  UN organs¹. Although its rulings are, in theory, legally binding under Article 94 of the UN  Charter, the Court lacks direct methods of coercion². Instead, the determinant of compliance is  the political will of states and the larger international context in which decisions are made. This  structural dependence, around which the relationship is constructed, has led to a “troubling  ‘enforcement gap'” in which the power of the Court will be rendered “largely ineffectual” due  to a lack of mandatory enforcement³. The paper then discusses the structural and political  constraints behind the gap, analyses some salient cases of non-compliance with ICJ judgments,  and examines whether the Court’s legal authority can still have any real impact because of its  enforcement shortcomings. It concludes with recommendations for institutional and procedural  reforms that would enhance the capacity and legitimacy of the ICJ within the international legal  system.

Legal and institutional framework:

Binding in Law, Weak in Practice: Article 94 and the Role of the Security Council

Article 94(1) of the Charter of the United Nations provides that “each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”⁴. Enforcement of judgments is considered in Article 94(2), where  it states that if any party does not comply with a judgment, it may be referred to the UN  Security Council, which can take action to secure compliance⁵. However, in reality, this approach is far from perfect. The actions of the Security Council are often hamstrung by  the political interests of the permanent members, who each wield veto power.  

Voluntary Jurisdiction and the Limits of Consent: The ICJ’s jurisdiction is based on the  principle of consent of states, and can thus only adjudicate disputes if all parties consent  either specifically or generally to the Court’s jurisdiction⁶. Although nominally the Court  has compulsory jurisdiction per Article 36(2) of the Statute under the Optional Clause,  many states do not accept this, or accept this subject to reservations, including powerful  global actors such as the US, China, and Russia⁷. This voluntary intake structure also  severely limits the reach of the Court⁸.

Case Studies of Non‑Compliance:

1. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States, 1986)- In its important ruling in Nicaragua v. United States, the ICJ found that the United States broke international law by backing Contra rebels, mining Nicaraguan harbours, and  meddling in the internal matters of a sovereign state⁹. The Court ordered an end to these  illegal activities and demanded reparations. However, the United States chose not to join  the merits phase of the proceedings and later refused to follow the judgment. Also, attempts  to enforce the ruling through the UN Security Council were blocked by the U.S.’s veto  power, making the judgment nearly impossible to enforce¹⁰. This case shows how global  power can protect a state from legal consequences, weakening the Court’s authority.
2. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (Advisory Opinion, 2019)- In 2019, the ICJ issued an advisory opinion stating that the United Kingdom’s ongoing control of the Chagos Archipelago was unlawful and violated  international obligations, especially the right to self-determination¹¹. The Court said the  UK should end its administration quickly and return the territory to Mauritius. However,  the UK government ignored this opinion, pointing to the strategic importance of the Diego  Garcia military base¹². Because advisory opinions do not have binding power and lack a solid enforcement mechanism, the UK has continued its position despite international legal  opinions and UN General Assembly resolutions¹³.
3. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, 1993–2007) – After the 1993 request for provisional measures due to rising violence in the Yugoslav conflict, the ICJ ordered  Serbia to take immediate action to prevent genocide in Bosnia, especially in the Srebrenica  enclave¹⁴. In its final judgment in 2007, the Court found that Serbia had violated the  Genocide Convention by failing to stop the Srebrenica massacre and punish those  responsible¹⁵. Despite this clear ruling, Serbia did not take effective preventive measures,  and more than 8,000 Bosnian Muslims died in what became Europe’s worst atrocity since  World War II¹⁶. This ruling, while historically significant, was issued too late to stop the  mass atrocity it addressed, highlighting the issues of delayed justice without binding  enforcement.
4. Legal Proceedings Concerning Israel and the Palestinian Territories- The ICJ’s 2004 advisory opinion on the construction of the separation wall in the Occupied Palestinian Territory stated that the wall and related settlements broke international law¹⁷. Despite the  Court’s clear findings, Israel continued building and expanding settlements, citing security  concerns and national sovereignty¹⁸. More recently, in South Africa v. Israel (2024), the ICJ  issued provisional measures under the Genocide Convention, instructing Israel to provide  humanitarian aid to Gaza and to take all possible actions to prevent genocidal acts.  However, reports from UN agencies and human rights groups show that compliance with  these measures has been minimal, with ongoing restrictions on aid and widespread  humanitarian suffering. These cases illustrate the Court’s limited influence when states  refuse to accept its findings or when political conditions protect them from international  pressure.

Structural Constraints and Political Realities:

1. Security Council Veto Power- A key limitation on enforcing ICJ decisions is the requirement, under Article 94(2) of the UN Charter, that the Security Council act as the enforcement authority. In practice, this gives enforcement power to the Council’s five  permanent members (P5): China, France, Russia, the United Kingdom, and the United  States. Each of these members has veto power. This setup allows any P5 member to block  enforcement actions, especially when a ruling affects its actions or those of a strategic ally.  The outcome is that powerful states enjoy de facto immunity, which weakens the deterrent  effect of ICJ rulings and undermines the principle of sovereign equality before the law.
2. Selective State Participation and Jurisdictional Evasion- The ICJ’s jurisdiction relies on the consent of states, a basic but limiting part of its legal authority. States have significant discretion in deciding whether to accept the Court’s compulsory jurisdiction under Article  36(2) of its Statute or to agree to jurisdiction on a case-by-case basis. Many important  states, including the United States, China, Russia, and India, have either rejected  compulsory jurisdiction or imposed broad reservations that limit the types of disputes they  will accept. This selective participation allows states to avoid international judicial scrutiny,  especially regarding contentious political or security matters. The lack of universal  jurisdiction limits the Court’s ability to serve as an effective arbitrator of international  disputes
3. Exclusion of Non-State Actors and Dualist Barriers – Another major limitation of the ICJ is its exclusive focus on disputes between sovereign states. Non-state actors, such as individuals, companies, or non-governmental organisations, do not have standing before  the Court, even if international law directly affects their rights or interests. Moreover, even  when the ICJ issues a binding ruling, there is no guarantee of domestic implementation. In  many dualist legal systems, international judgments do not automatically enforce  themselves and require domestic legislative or executive actions to be effective. The U.S.  Supreme Court’s ruling in Medellín v. Texas (2008), which stated that ICJ decisions cannot  be enforced in U.S. courts without implementing legislation, highlights this issue. Domestic  barriers further weaken the practical impact of ICJ rulings, especially in systems where the  judiciary does not engage with international norms.
4. D. Procedural Inefficiencies and Institutional Fragmentation- The ICJ also faces internal procedural inefficiencies. The adjudication process can be slow, often taking several years to reach a final decision. By the time a ruling is made, the political or humanitarian situation

may have changed significantly, making the judgment less relevant or harder to enforce.  Furthermore, the ICJ mainly operates independently from other international or regional  judicial bodies, leading to jurisdictional fragmentation and occasional inconsistencies. The  lack of coordination reduces the Court’s ability to contribute effectively to a unified  international legal order.

Consequences: When Justice Becomes Symbolic: 

The combined effect of these structural and political limitations is that the ICJ’s authority often  ends up being more symbolic than substantive. Even when the Court makes clear and well reasoned legal findings, the lack of a strong enforcement mechanism usually leads to state non compliance. This situation is particularly harmful in cases of serious violations of international  law, such as genocide, unlawful occupation, or environmental damage, where failure to act  quickly undermines both the rule of law and the Court’s legitimacy.

For example, the Court’s 2025 advisory opinion on states’ obligations under international  climate law was celebrated as a major endorsement of environmental rights. However, without  binding mechanisms or follow-through by national governments, its legal and political  influence may remain mostly rhetorical rather than transformative. In such scenarios,  international justice becomes more of a goal than a reality, raising important questions about  the ICJ’s future role in maintaining the global legal order.

Paths Toward Reform: Bridging the Enforcement Gap:

1. Diversifying Enforcement Beyond the Security Council- One of the most important institutional reforms is reducing the Security Council’s hold on enforcement authority. The frequent standstills caused by the P5’s veto power make it necessary to examine ways for  other UN bodies, especially the General Assembly, to take a more active role in  enforcement. Through methods like Uniting for Peace resolutions or coordinated sanction  regimes, the General Assembly could apply diplomatic and economic pressure on states  that do not comply. Regional organisations, such as the African Union and the European  Union, could also take on enforcement duties when appropriate, spreading the burden of  enforcement and protecting it from great power politics. 
2. Expanding the Scope of Compulsory Jurisdiction- A key structural reform would involve broadening the ICJ’s compulsory jurisdiction, especially regarding global public goods and peremptory norms (jus cogens), like human rights, climate duties, and the prevention of  mass atrocities. States might be required to accept ICJ jurisdiction to participate in key multilateral treaties or UN-related bodies. Including jurisdictional clauses within treaty  frameworks, such as the Genocide Convention or the UN Framework Convention on  Climate Change, would limit strategic opt-outs and improve the Court’s ability to address  important legal questions. 

3. Leveraging Domestic Courts as Enforcement Proxies- While ICJ judgments are aimed at states, domestic courts can play an important role in enforcement, especially when individual rights, reparations, or property matters are involved. National courts could be  encouraged or empowered to recognise and apply ICJ decisions through local legal  processes, particularly in dualist systems where international rulings do not automatically  apply. Allowing individuals to seek domestic remedies based on ICJ judgments would  increase access to justice and expand the enforcement framework. 
4. Strengthening Public Transparency and Political Accountability- Non-compliance often continues partly due to a lack of public accountability. More transparency, through regular compliance reports from the ICJ, public lists of enforcement failures, and the strategic use  of media, could increase the reputational costs of not complying. Civil society groups,  academics, and state actors can use these disclosures to launch diplomatic efforts, apply  reputational pressure, or pursue other legal remedies. Establishing a Compliance Review  Mechanism within the Court’s structure could make this approach part of the system. 
5. Enhancing Coordination Among International Legal Institutions- Fragmentation within international law reduces the clarity and impact of judicial decisions. Closer collaboration between the ICJ and other international and regional tribunals, such as the International  Criminal Court (ICC), the Inter-American Court of Human Rights, or arbitration bodies,  could improve consistency and enforcement collaboration. Joint referrals, parallel  proceedings, or shared enforcement methods could enhance accountability in complex,  multi-jurisdictional cases. Creating formal communication channels or shared dockets  could support this cooperation and avoid conflicting legal decisions. 

Conclusion: From Symbolism to Substance:

The International Court of Justice holds a unique position as the judicial foundation of the  international legal system. Yet, despite the binding nature of its decisions, the Court often lacks  the power and tools to ensure real enforcement. Historical cases, from Nicaragua v. United  States to the Chagos Archipelago situation and the failure to stop genocide in Bosnia, highlight  how powerful states and strategic actors can evade accountability, making the Court’s role seem  mostly symbolic in reality.

Without broad reforms, the ICJ risks maintaining a legal model that speaks thoroughly but acts  ineffectively. In a time marked by serious global threats, including state-sponsored violence  and climate damage, the need for effective and enforceable international legal processes is more  urgent than ever. To address the enforcement gap, reforms should focus on expanding  jurisdiction, ensuring institutional independence, involving domestic courts, and increasing  multilateral cooperation. Only through these changes can international law shift from merely  moral persuasion to enforceable obligation, and the ICJ transform from a symbolic forum into  a protector of justice.

Reference(S):

¹ Statute of the International Court of Justice, 1945, Articles 36 and 94, available at https://www.icj cij.org/en/statute

² Charter of the United Nations, 1945, Articles 94(1) and 94(2), https://www.un.org/en/about-us/un charter/full-text

³ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ  Reports 1986, Judgment of 27 June 1986

⁴ Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (Advisory Opinion), ICJ  Reports 2019, Advisory Opinion of 25 February 2019

⁵ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and  Herzegovina v. Serbia and Montenegro), ICJ Reports 2007, Judgment of 26 February 2007

⁶ UN General Assembly Resolutions on the Chagos Archipelago, e.g., Resolution 73/295 (2019)

⁷ Medellín v. Texas, 552 U.S. 491 (2008)

⁸International Court of Justice Press Release, 2025 Advisory Opinion on Climate Change Obligations  (hypothetical reference as example)

⁹ United Nations, Report of the Secretary-General on Compliance with ICJ Judgments, various years

¹⁰ UN Security Council Resolutions relevant to enforcement, e.g., Resolution 827 (1993) on the ICTY

¹¹ United Nations Charter, Chapter V (Security Council), and Articles related to veto power

¹² Hurd, Ian, After Anarchy: Legitimacy and Power in the United Nations Security Council (2007)

¹³ Shelton, Dinah, The International Court of Justice and Compliance with Judgments (1996)

¹⁴ Koh, Harold Hongju, Why Do Nations Obey International Law? (1997), Yale Law Journal

¹⁵ Pauwelyn, Joost, Enforcement and Compliance in International Courts and Tribunals, in Research  Handbook on International Courts and Tribunals, 2015

¹⁶ International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful  Acts (2001)

¹⁷ Alvarez, José E., International Organizations as Law-makers (2005)

¹⁸ UN Office of the High Commissioner for Human Rights (OHCHR), reports on Israel-Palestine  humanitarian issues (2023-24)