Cheng Book Roundtable: Should ICJ Judgments Be Effective? (A Reply to Professor Cheng)

[Chester Brown is Associate Professor at the Faculty of Law, University of Sydney]

Thanks to Professor Cheng for his thoughtful response. As a follow-up comment, this discussion should not conclude without mention of another hard case, being the International Court of Justice’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons. In its advisory opinion of 8 July 1996, the ICJ (in)famously held that

in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.

The ICJ’s non liquet goes several steps further than a finding that it lacked jurisdiction, or that the claim was inadmissible (as was the result in the Nuclear Tests cases). The ICJ’s finding that it could not decide the issue would appear to bring together the two issues I raised in my post yesterday; when should issues of (i) morality, and (ii) effectiveness, feed into questions of treaty interpretation (or even finding the applicable law)? This justificatory framework would appear capable of explaining this outcome (just as it might be used to explain the result in the Nuclear Tests cases), but the difficulties posed by this case were palpable.