Domestic Influence of the International Court of Justice

Article excerpt

Over fifty years ago, the International Court of Justice (I.C.J.) was created to provide advisory opinions for various U.N. entities and to decide certain state-to-state disputes.(1) Advisory opinions, as the phrase suggests, were to be merely advisory;(2) and under Article 59 of the Statute of the I.C.J., even a decision of the Court concerning state-to-state complaints was to have "no binding force except between the parties and in respect of that particular case."(3) As text-writers affirm, the formal preclusion of stare decisis with respect to decisions of the Court "and the relegation of judicial decisions generally to a `subsidiary status' [concerning the sources and evidences of international law(4)] reflect the reluctance of states to accord courts ... a law-making role."(5)

Nonetheless, decisions and advisory opinions of the International Court of Justice have generally been widely received as authoritative explications of international law.(6) Buttressed by cautious attention to the Court's authority and patterns of opinio juris they help to shape, decisions and advisory opinions have acquired a functional significance far beyond what printed constitutive articles might have allowed. Indeed, despite formal abhorrence of stare decisis, the Court, as nearly any other, has dared to cite itself and has often incorporated the reasoning from other cases by reference.(7)

This growth in authority and influence is generally recognized,(8) but the decision of the United States in 1985 to withdraw from the general jurisdictional competence of the Court(9) must partly hamper such developments. Also inhibiting the development are a series of U.S. reservations to human rights treaties. With respect to I.C.J. adjudication of issues arising out of such a treaty, a typical U.S. reservation declares that the U.S. will agree to I.C.J. jurisdiction if, at some future time, the U.S. actually does agree.(10) Such a reservation relegates the role of the Court to an ad hoc adjudicatory process whenever the United States is involved, and it is partly self-defeating for the United States. Given the decision of the Court in the Case of Certain Norwegian Loans,(11) the U.S. reservations may preclude use of the I.C.J. by the United States to redress human rights claims of U.S. nationals against foreign governments. Nevertheless, the United States is also a signatory to over seventy multilateral treaties and thirty bilateral treaties that contain special declarations of acceptance of I.C.J. jurisdiction that do not require additional consent to competence.(12) Thus, the prospect of increased U.S. participation in litigation before the Court remains, even if such participation is likely to be treaty or subject-specific.

Has the general growth of authority and influence of the International Court, despite certain inhibiting practices of the U.S. political branches, had any impact domestically within U.S. judicial processes? Despite the lack of any direct relevance domestically of I.C.J. opinions advising U.N. entities, the rarity of state-to-state disputes appearing directly or obliquely in U.S. courts, a formally proclaimed lack of "binding force" of I.C.J. decisions outside the parties to a dispute, and the embarrassing fact that most U.S. lawyers and judges have never taken a course in international law, have I.C.J. decisions and opinions had any influence within our domestic legal processes? Perhaps surprisingly, ineluctably, they have.

In sharp contrast to the general influence of I.C.J. decisions and advisory opinions within the United States, however, is the severely limited role for I.C.J. judgments recognized by the United States Court of Appeals for the District of Columbia Circuit in Committee of United States Citizens Living in Nicaragua v. Reagan.(13) In its 1988 opinion, the D.C. Circuit nearly slammed the door on any direct enforcement of I.C.J. judgments in U.S. courts. Still, general use of I. …