Nadia Nedzel: The International Court of Justice – A Predictable Failure

Guest post by Nadia E. Nedzel, J.D., LL.M.

The International Court of Justice (ICJ) is the United Nations’ “principal judicial organ. “It has been in the news lately as the Trump administration rightly criticizes it.

 

Established in 1945 in the United Nations Charter and located at the Peace Palace in The Hague, it was intended to settle legal disputes between member states and issue advisory opinions.[1]

 

 

As such, it must be distinguished from the International Criminal Court (ICC), which prosecutes individuals for international crimes such as genocide.[2] Though both courts have proven to be dysfunctional, the court exhibits dysfunctionality, particularly with regard to disputes between member nation states.

At the time the ICJ was proposed, prominent international lawyer and Nuremburg prosecutor Sir Hersch Lauterpacht advocated the settlement of all international problems through judicial means and arbitration, while his contemporary, historian and international relations theorist Edward Hallet Carr criticized Lauterpacht’s hope as utopianism.[3]

Carr has been proven to be correct.

The ICJ’s problems stem from four causes: 1. Its jurisdiction is not compulsory unless a state accepts it (and only 63 of 190 member states have done so); 2.Enforcement of ICJ decisions is left to the Security Council, which very rarely does so; 3. While article. 38 of the ICJ statute purports to define binding international law,[4] much of what is called international law is difficult to identify as a binding rule of conduct or general practice accepted as law; and, 4. Despite an ICJ judge’s obligation to be impartial, there is significant evidence of judicial bias.


Some have found strong empirical evidence of bias that “judges favor the states that appoint them; and that judges favor states whose wealth level is close to that of their own states . . . .”[5]

This is not justice.

International lawyers want law to be based on external logic or methods that are neutral among participants,[6] but in a world of moral and political plurality, it is highly unrealistic to expect to find many such concepts.

It is equally unrealistic to expect judges from widely disparate backgrounds to agree on how they should apply in different situations.

This has led one scholar — upset that the ICJ found it lacked jurisdiction to hear a case involving the U.K.’s nuclear testing on the Marshall Islands — to argue that the ICJ suffers from “structural bias,” and that it makes decisions based on “formalism,” favoring form over substance and focusing exclusively on procedural rules, setting aside policy considerations.[7]

All told, however, we should be glad that the ICJ lacks compulsory jurisdiction, that its decisions are generally not enforced by the Security Council, and that the ICJ considers whether it has jurisdiction to hear a case.

Granting compulsory jurisdiction and creating a toothful enforcement body uninfluenced by disparate interests would mean that the United Nations would become a supra-national government, unchecked by any other power.

At least the ICJ currently recognizes that its powers are limited, and the Security Council exercises self-restraint (or perhaps political checkmate)!

The first requirement of the rule of law is that all governmental power must be subject to checks and balances as a way of curbing its tendency to both growth and corruption.[8]

The creation of a supra-national government with unchecked enforcement power would truly be the creation of a Frankenstinean monster, capable of endless harms, both great and small.

[1] United Nations, Statute of the International Court of Justice, 18 April 1946, available at: http://www.refworld.org/docid/3deb4b9c0.html [accessed 23 September 2018]
[2] The Rome Statute, UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6.
Established July 1, 2002.
[3] Edward Hallett Carr, The Twenty Years Crisis 193-207 (1945).
[4] Statute of the International Court of Justice, art. 38,  ¶ 1.
[5] Eric Posner & Miguel F.P. de Figuierado, Is the International Court of Justice Biased?, 34 J. Legal St. 599 (2005).
[6] Martii Koskennicimi, The Politics of International Law – 20 Years Later, 20 Eur. J. Int’l. L. 7, 12 (2009).
[7] Andrea Bianchi, Choice and (the Awareness of) Its Consequences: The ICJ’s “Structural Bias” Strikes Again in the Marshal Islands Case, III AJIL Unbound 81 (2017).
[8]Nadia E. Nedzel, The Relationship Among the International Rule of Law, Spontaneous Order, and Economic Development, 12 Vienna Journal of International Constitutional Law 183 (June 2018); The International Rule of Law and Economic Development, 17 Wash. U. Global. St. L. Rev. 447 (2018); Rule of Law v. Legal State: Where are we coming from, where are we going to?  Book Chapter, in Comparison:  The Rule of Law in the 21st Century and the Legal State (James Silkenat, ed. Springer pub. 2014); The Rule of Law:  Its History and Meaning in Common Law, Civil Law, and Latin American Judicial Systems, 10 Richmond J. Global L. & B. (2010).

 

 

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