The International Court of Justice and Highly Political Matters

By Coleman, Andrew | Melbourne Journal of International Law, May 2003 | Go to article overview

The International Court of Justice and Highly Political Matters


Coleman, Andrew, Melbourne Journal of International Law


[Many commentators, including even some members of the International Court of Justice itself, have expressed concerns about the Court's ability to make a valid contribution to the resolution of highly political matters--those matters where the national interests of nation states are threatened. Such criticism is based on the obvious problems of the international legal system: its basis of consensual jurisdiction and the reluctance, and at times the recalcitrance, of states to comply with the Court's decisions. The purpose of this article is to examine whether the Court is able to make a contribution to the resolution of highly political disputes. It firstly examines some of the most highly political matters heard by the Court, such as Nicaragua, the Nuclear Weapons Opinion, the Lockerbie Case, and the Arrest Warrant Case, and secondly considers the impact these decisions have had on subsequent actions of states. In conclusion, this article argues that it is the nature of the Court--a legal body comprised of objective, trained personnel--that ensures it is an appropriate body to assist in the resolution of highly political disputes. This is a significant contribution not only to the parties involved in a dispute, but also to the international community as a whole.]

[T]he plain fact [is] that nations no less than men are ruled by law and are so ruled at all times. (1)

I INTRODUCTION

Traditionally, domestic or national courts in western legal systems have considered themselves to be inappropriate for a for resolving highly political issues. (2) This judicial reticence is based on the separation of powers theory advanced by the French political theorist Baron de Montesquieu, but also exists for pragmatic reasons. (3) At the international level, concerns about the ability of the International Court of Justice ('ICJ') to participate in and make a valid contribution to the resolution of highly political issues have often been expressed, even by members of the Court itself. (4) For example, Helmut Steinberger, the Vice-President of the Court of Conciliation and Arbitration of the Organization for Security and Cooperation in Europe, observes that:

   Experienced observers of international relations are right when
   they consistently note that the function of international law and of
   international jurisdiction in the area of the peaceful settlement of
   highly political disputes, and in particular of disputes containing a
   threat to peace or international security, is of necessity quite
   limited. (5)

As Mohamed Shahabuddeen, a former member of the ICJ, has said, '[t]o be sure, judicial process alone cannot banish war'. (6) This raises the important question of 'whether the Court, as a court of justice, has a limitation on its judicial function, and is legally prevented from dealing with a dispute in which highly political issues are predominant.' (7)

It is the purpose of this article to examine this question and determine whether the Court is able to make a contribution to the resolution of highly political disputes--that is, those disputes where the national interests or perceived national interests of nation states are threatened--and what form that contribution should take. It is argued here that criticisms of the ICJ's role are really criticisms of the nature of the international legal system rather than of the Court itself and that, in reality, the Court can and does make a significant contribution to the peaceful resolution of highly political disputes. (8)

II THE NATURE OF INTERNATIONAL DISPUTES

International disputes basically arise from the discordant or competing 'national interests' of states as they play what Kipling termed the 'great game'. (9) Whilst debate and controversy continue regarding increasing globalisation and the creation of supranational entities such as the European Union, the fact remains that the international community is comprised of political communities called 'nation states' that consider themselves to be independent sovereign entities. …

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