Monday, May 30, 2005

Can You Attach an ICJ Judgment?

This report details a curious effort by a South African businessman to attach an expected forthcoming money judgment from the International Court of Justice in favor of the Democratic Republic of the Congo. DR Congo has filed a claim against Uganda in the International Court of Justice seeking reparations for Ugandan violations of Congo sovereignty. In theory, DR Congo might win billions of dollars. Apparently, this SA businessman has gotten an attachment in Uganda on any such payment so he can get his cut before DR Congo gets its money.

A couple rather obvious problems. Is an ICJ money judgment directly enforceable in Uganda? In other words, could Congo go to Ugandan courts to enforce the ICJ order? I don't know. Nothing in the ICJ Statute requires such domestic enforcement, but I suppose Uganda might allow such enforcement. The only law I can find in Uganda allows judgments of Commonwealth countries to be enforced, but not ICJ judgments. Still, I'm quite confident that no country that is party to the ICJ permits such domestic judicial enforcement.

Why? To put it bluntly, countries always retain the option to ignore enforcement of ICJ judgments. They may get sanctioned, say by the UN or by other countries, but they might also keep non-compliance as a further bargaining chip with the country they are bargaining with. This may not be very nice, but it is hardly surprising. So look for Uganda to refuse to pay any ICJ judgment unless it is offered some further carrot by the international community or perhaps some nasty stick to force payment.


Anonymous Anonymous said...

Let's assume that the ICJ judgment is against Uganda and that Uganda agrees to pay up.

Could Uganda, at its own discretion, pay the South African businessman the money he is owed and then only give the Congo what the ICJ ordered minus what has been paid to the South African?

Would that have any international law implications?

5/31/2005 7:28 AM  
Blogger Julian Ku said...

That's a great point. I hadn't thought of that. I suppose the proper analogy would be to treat the ICJ judgment as a typical foreign judgment and consider whether the attachment of that judgment was proper. But that would only be by analogy. Thanks for bringing that up. I have to think about that some more.

5/31/2005 1:29 PM  
Anonymous Anonymous said...

I'm the person who asked the original question. I'm only a student of public international law (actually, I think my professor may be acting as counsel in the case, which he does from time to time) but here's my stab at an answer:

A Ugandan court can order the Ugandan government to pay part of the Congo judgment to the South African. This is a matter that is to be decided by reference to (a) Ugandan law and (b) the manner in which international law is incorporated in Ugandan law; neither of these, with the greatest respect to Uganda, are very important.

More importantly, I think, is whether this has any implications on the international legal plane. Partly because of the general unwillingness of the ICJ to allow municipal law to be used as a defence to a breach of international law, but also because this risks giving national courts free reign to alter the financial consequences of ICJ judgments, I can't see the ICJ allowing Uganda to follow a Ugandan court's order to pay the money directly to the South African.

The ICJ would reason, rightly I think, that a Ugandan court can do what it wishes, but if the ICJ orders that $x be paid to Congo, and Uganda, for reasons of its own domestic law, pays less than $x, then that is illegal.


I add: your blog, whilst a great resource, is far too hard on John Yoo. The man is a legend. I do hope that in the fullness of time he is appointed to sit on the ICJ.

6/01/2005 12:52 PM  
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