Legal and Political Acrobats: The Fate and Future of the International Court of Justice
Eyffinger, Arthur, Harvard International Review
Why is the same country that spearheads the "Coalition of the Willing" in Baghdad rallying a "Coalition of the Unwilling" in The Hague? Why would it bend the law to bring one villain down, and block the law that stops others from rising? Why should it rely on preemptive strike rather than on preemptory norms? From the day the United States first pulled up its chair at the international conference table at The Hague in 1899, its role in establishing the rule of law has always been pivotal, yet never predictable. In clarifying the chances of success for what appears to be US President George W. Bush's nightmare, namely the International Criminal Court (ICC), the International Court of Justice (ICJ) may be a case in point.
The ICJ ranks as the High Treasurer of the Rule of Law within the UN system--one of its main organs and its principal judicial organ, its statute lies comfortably embedded in the charter. Still, over recent decades many commentators have agreed that the ICJ has never lived up to its expectations or its potential. This performance does not arise from a shortage of legal genius among its members. The aspiration to assemble the world's legal luminaries into a single authoritative body in order to have them judge countries and advise the United Nations has culminated in a wealth of jurisprudence that bespeaks of the legal acumen at the world's ready disposal. The deficiency, rather, concerns the limited impact of all these achievements which are restricted to the scope of the disputes submitted to the ICJ. This has condemned the judicial process to a relatively marginal role.
The arguments excusing these circumstances have been manifold. Regardless, none of them holds. In taking stock of these allegations, the ICJ has disarmed critics by adapting its statute and speeding up procedures, introducing Chambers, and creating a relief fund. Although the end of the Cold War Era repaid itself in a substantial upsurge of cases, this has hardly advanced its role to the point of dispelling advocates' lasting concerns. The core problem is inherent in the horizontal stratification of international society and the absence of a clear distribution of the legislative, judicial, and executive powers. Paramount in this domain is the concept of state sovereignty--in direct opposition to the checks and balances of the municipal sphere. Adjudication was never initiated by the state entities, and from the beginning it was correctly interpreted as an infringement on the principles of the Treaty of Westphalia, which first defined diplomacy in terms of the sovereign rights of states. The principles were developed as an alternative to diplomatic negotiations during the Industrial Revolution that triggered a gargantuan military apparatus and an unparalleled armaments race, but also opened unexplored avenues for international trade and communication. Pacifists, parliamentarians, and lawyers joined forces with hopes of replacing the Westphalian model of crisis and confrontation--only barely redressing a precarious balance of power and alliances with consensual decision-making and peaceful dispute settlement.
Initially, at the Hague Peace Conferences of 1899 and 1907, these pioneers' battle cry for an institutional system of compulsory arbitration of inter-state conflict was adroitly reduced to a voluntary modus operandi. Still, in the brief spell of optimism after World War I, "internationalists" lured states into the straight-jacket of compulsory adjudication, but their efforts were futile. The learned committee of jurists, which in 1920 and pursuant to the Versailles Treaty prepared the Statute of a World Court--slightly overstepping its mandate by suggesting a compulsory element--was soon sobered up. The countries have never accepted any serious downgrading of state sovereignty.
Symptomatically, the ICJ mandate equals that of its interbellum precursor. Meanwhile, this role of the "World Court" is bipartite: it settles disputes between states and renders advisory opinions to the political organs of the United Nations and some of its Specialized Agencies. …