Reconsidering the Reconsideration of the ICJ

Reconsidering the Reconsideration of the ICJ

There have been numerous posts on Opinio Juris concerning how it may be time to reconsider the role of the ICJ. One recent comment to the blog and another “out in the real world” provide a good counterpoint to this whole discussion.

Dr. Cesare Romano of NYU has posted an insightful comment to an earlier post on whether the ICJ needs reform. Given the interest in statistical analyses of the behavior of international tribunals, Romano does a nice bit in showing that, numerically speaking, the ICJ’s caseload is actually where you should expect it to be, given that its only potential clients are States suing each other. Perhaps then, we should be a little less concerned with how many cases the ICJ has than what it actually does with them.

Let me toss in another perspective I heard recently at a conference. One international lawyer who has a very active practice before the ICJ has quipped that as a court the ICJ is not very successful but as a legislature it is quite good. He argues that there are other international tribunals, such as the WTO Dispute Resolution Mechanism, that do much better jobs at resolving contentious cases. As has been observed here, the ICJ’s cases tend to take a long time to get resolved and many of them are somewhat “cold” even when they get to the ICJ. So, as a means of resolving a heated dispute, the ICJ isn’t especially strong.

But, according to this argument, the ICJ is better understood as a de facto legislature, anyway. The international system, unlike national systems, does not have an agreed-upon law-making body. There is no World Congress with legislative authority (the General Assembly passes non-binding resolutions and although the Security Council passes binding resolutions, the argument that it is a “legislature” raises a lot of hackles).

The ICJ, however, decides cases that often change the shape of international law (on everything from status of international organizations to how treaty reservations work, from how to delimit maritime boundaries to the rules for assisting insurgencies). The cases may be relatively few but their result is like legislation: reframing the rules in a given area of law. Technically, of course, a ruling of the ICJ is only binding between the parties but in fact decisions are not treated this way. And add to this the capacity of the ICJ to issue advisory opinions on broader legal questions and the result begins to look more legislative.

In considering this argument, one DC lawyer later noted that legislatures tend to do their jobs better when dealing with technocratic policy issues that some legslators have spent time mastering and yet hasn’t become overly politicized. Then law and policy, rather than politics, tends to be hashed out. But the high voltage political issues short circuit Congress and instead of discussion and deliberation you get rhetoric and recrimination.

Now consider the ICJ and technocratic issues (maritime boundaries, the rules affecting international organizations, border disputes) and its record is one of the careful elucidation and extension of international law in a way that is generally accepted by the States, as evidenced by their own subsequent practice. But when you ramp up the political quotient (the Israeli/Palestinian Barrier Case, for example) the result makes the ICJ seem less like a hallowed institution and more like a talking-shop whose results are easily dismissed as overly politicized, unrealistic, and irrelevant.

So is the ICJ actually the world’s legislature? Well, no, no one is actually saying that. But its evolving role may be better understood as more akin to a de facto law-making body than as a dispute resolution mechanism.

Spurred by these two (not necessarily consistent) perspectives, I think we should reconsider how we reconsider the ICJ.

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That is indeed an interesting perspective.

To my mind, it suggests two things above all. One that we should pay more attention to the ICJ, and two that the ICJ ought never hear cases about questions like Israel and Palestine.

Certainly, with regard to that latter case, they ought probably to develop a jurisprudence of legitimacy, and not hear cases where a democratic state is involved and refuses from the outset to be bound. A step like that might even increase the uptake of compulsory jurisdiction.