[Lori F. Damrosch is Henry L. Moses Professor of Law and International Organization and Hamilton Fish Professor of International Law and Diplomacy at Columbia Law School]
My article,
‘The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?’ originated as a contribution to a symposium convened on the 25th anniversary of the delivery of the merits judgment in the case. I took as my starting point one of the statements issued by the US government while the case was pending, which had predicted that the International Court of Justice would harm itself unless it refrained from becoming politicized. My article then inquired into whether the predicted negative trends had materialized, with attention to patterns of acceptance of the Court’s jurisdiction, its docket, and compliance with its rulings. I concluded that most of the dire predictions were overstated and that the most serious negative impact has been the on the willingness of the United States to participate fully in international dispute settlement at the ICJ and elsewhere.
One aspect of the 25-year trends I surveyed was the remarkable growth in the Court’s docket after the
Nicaragua case and the shift in the geographic distribution of cases to include a much higher proportion from the developing world. In his comments on my article addressed to that point, Professor John Dugard refers to the Court’s 1966 judgment in the
South-West Africa cases, which I had not discussed simply because my remarks at the June 2011 conference focused on developments subsequent to the
Nicaragua case. I therefore did not think it necessary to elaborate the reasons why the Court, prior to
Nicaragua, had gone through a period of very few cases on its docket, although I did briefly allude to that fact in my contribution (p. 140). Alain Pellet, whose contribution will appear in the next issue of the
Leiden Journal of International Law, also surveyed the relevant history. As the literature on the Court explains, between the late 1960s and the early 1980s preceding
Nicaragua, the Court had suffered a collapse in confidence resulting in part from its handling of the cases brought by Ethiopia and Liberia against South Africa to contest the maintenance of
apartheid in the territory of South-West Africa, which South Africa administered under a League of Nations mandate. Because that story has been fully told elsewhere, I began my treatment with the
Nicaragua judgment and the statement of the United States government in response thereto.
To the extent that African countries in particular had avoided the Court after the 1966 dismissal of Ethiopia’s and Liberia’s contentious cases, the rehabilitation had already begun by the time of
Nicaragua. Tunisia and Libya, as well as Burkina Faso and Mali, went to the Court shortly before the Nicaragua case or during its pendency, for delimitation of their maritime or land boundaries. After the mid-1980s, African states submitted still more cases by consent or brought them under other headings of the Court’s contentious jurisdiction, so that there is now a large number of such cases and an impressive record of resolution by the Court of intra-African disputes. The fact that the Court had an African President, Judge T.O. Elias, during the
Nicaragua period may have contributed to the renewal of African interest in considering the Court as a potential forum for dispute settlement. African states may also have found in the Nicaragua case some signals that the Court was prepared to handle their cases in a manner responsive to the valid criticisms that had been made in the wake of dismissal of Ethiopia’s and Liberia’s cases against South Africa two decades earlier. Presumably, such a restoration of confidence would have to be sustained over time, as has apparently happened in view of the significant proportion of the Court’s docket attributable to intra-African disputes.
