Cheng Book Roundtable: When Should a Court Not Decide (A Response to Professor Brown)

I thank Professor Brown for his further application of the justificatory theory to the ICJ’s advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, another incident not covered in my book. I am glad he finds the justificatory theory useful in explaining the Court’s decision. As Professor Ku mentioned earlier this week, one test of the value of a theory is how well it explains the subject matter of the theory.

Professor Brown also rightly points out that the Court caused some difficulties in the Nuclear Weapons decision. It did not greatly clarify the law.

But other decisionmakers can also express a view on what they think the law is or should be, if the question is urgent enough. The UN General Assembly had already expressed its general views on the issue through non-binding resolutions. In a concrete problem that threatens international peace and security, the UN Security Council could issue a binding Chapter VII resolution.

But the advisory opinion in the Nuclear Weapons case and the decision in the Nuclear Test case raise a broader question of whether and when the ICJ should not decide a dispute.

In a prior book, State Succession and Commercial Obligations, I suggested that the ICJ’s refusal to seize jurisdiction in in East Timor Case was, realistically speaking, the closest it could get to an ideal outcome (pp.178-87). By not deciding that dispute between Australia and the absentee colonial ruler of East Timor, Portugal, the Court avoided disrupting the web of international and regional arrangements concerning East Timor, on which countless people in many countries involved in those arrangements relied, without accepting, as a legal matter, Indonesia’s occupation of East Timor.

In the Nuclear Weapons case, the ICJ’s refusal to definitively opine on the legality or illegality of the use of nuclear weapons was also perhaps appropriate. The paragraph that Professor Brown quotes was adopted by the court with seven votes in favor and seven against, by the President’s casting vote. It is difficult to imagine the court reaching any other conclusion, given its split.

In any event, the ICJ did issue guidance. It recognized the inherent right of states to self-defense, that the the UN Security Council, as the principal organ responsible for international peace and security, could issue binding Chapter VII resolutions, and that states can and have made collective decisions about nuclear weapons through treaties.

Another question to ask about the Nuclear Weapons case is whether the Court should have accepted the request for an advisory opinion. Article 65 of the ICJ Statute gives the Court discretion to decline such requests. In the request made by the UN General Assembly, the preamble repeatedly emphasized opposition to the use of nuclear weapons and completely ignored any competing considerations. This is understandable, because most General Assembly members states do not have nuclear weapons. But should the Court have accepted a request that so clearly sought to use a court of law, whose legitimacy depends on it being perceived to offer neutral advice, for the political purposes of some states to engage in what we now call “law-fare”?

From one point of view, the issue is not just whether the ICJ’s Nuclear Weapons advisory opinion caused palpable difficulties, but whether it should have accepted the request for an advisory opinion at all.