United States-Safeguard Measure on Imports of Crystalline Silicon Photovoltaic Products

Abstract

The fact that a state decides not to appear at, and/or after, a judgment on jurisdiction, frequently leads to corollary problems of compliance and enforceability. International law requires that each member of the United Nations must comply with decisions of the ICJ in cases to which it is a party;32 if any party fails to comply with the judgment, the other party may have recourse to the Security Council, which may make recommendations or decide on measures to give effect to the judgment.33 In practice, this enforcement mechanism exists largely in name only; an attempt to adopt the“Nicaraguan”resolution urging “full compliance” with the Court’s ruling in the Venezuela v. United States (Merits) was, predictably, vetoed by the United States.34 Yet such compliance problems are particularly acute in the context of disputes over territories, where finality and stability of borders are central values. When the decision in Guyana v. Venezuela (Jurisdiction) was given, under two years ago, there were reasons for strong optimism that there would be compliance with the decision on the merits. By restricting itself to considering only the validity of the 1899 Award (and not events that occurred after the 1966 Geneva Agreement) the Court probably signaled that reparation in the form of damages was unlikely; if so, the final decision will probably not require positive fiscal ction on the part of the losing state. If the Court finds the 1899 Award to be invalid it would be extremely difficult for Guyana to cavil given its fervent assertion of the Court’s jurisdiction; if the 1899 Award is found to be valid, Venezuela would simply be required to respect the existing boundary established by the Award. Violation by either side would be in fact an invasion of the territorial sovereignty of the other member state of the United Nations and would constitute a direct threat to international peace and security. In these specific circumstances it is hoped that even a largely inoperable Security Council would find it unacceptable not to act. The hope remains but has been appropriately chastened by intervening developments in eastern Europe.