The Highest Court in the World?

The International Court of Justice (ICJ), the primary judicial branch of the United Nations, has faced much criticism over the years regarding its authority, efficacy, and impartiality. By examining the basic principles of the ICJ, the effectiveness and bias of the Court will be discussed. The Court’s take on compulsory jurisdiction, advisory opinions, judge selection, and ad hoc judges demonstrate its lack of authority. However, the impartiality of the ICJ depends on the specific judges at the time; although judges are not always partial, certain provisions in the Statute of the International Court of Justice may lend themselves to bias.

One of the main causes of the ICJ’s lack of authority is the United Nations’ sovereignty principle, which states that all nations are equal and that there is no higher entity that can force states to comply with international law. [1] The ICJ derives its authority from the United Nations Charter, which includes the Statute of the International Court of Justice, unlike national courts which are authorized by their respective constitutions. [2] This lack of a binding constitution means that states must choose to accept the ICJ’s jurisdiction and trials are held only in instances where both nations agree to have it heard by the court. Only seventy member states have recognized the jurisdiction of the court as compulsory. Of the five permanent members of the Security Council, only the United Kingdom recognized its compulsory jurisdiction, and this was a rather recent occurrence – December 31, 2014. [3] Consequently, when neither party in an (often aggressive) dispute wishes to bring the disagreement to the court, the conflict is handled by the Security Council. Therefore, many crucial issues do not come before the Court since there is an inherent bias in the case selection. All parties must decide to go to Court whereas normally the trend is that only one party need take action. Thus, the Security Council has greater power as they are not restricted by the involved parties. The United Nation’s own struggle to establish itself as an authoritative body mirrors the ICJ’s problem. A flaw in the Charter is the lack of compulsory jurisdiction, which is based in the sovereignty principle. Its insufficient authority inevitably leads many to question the effectiveness of the ICJ as an international power.

In addition to contentious cases, the International Court of Justice can provide advisory opinions. An advisory opinion does not carry the same weight since it does not constitute a res judicata, which is when the matter cannot be pursued further by either party, since technically there are no parties formally before the Court. An advisory opinion is primarily handed down for moral and political reasons. [4] Although it may strengthen “peaceful relations between States” and be used as “an instrument of preventive diplomacy” as the ICJ claims, advisory opinions are not binding. [5] This further acts to undermine the authority of the body, framing it as an organization that recommends rather than acts. Since countries are not required to heed these opinions, they will likely disregard them. Requests for advisory opinions can only come from within the United Nations, not from individual nations, which suggests that disputing parties do not seek counsel from third parties. [5] Sovereignty is deeply ingrained in countries’ mindsets and is regarded as an immutable right since it is the basic foundation of the United Nations. The lack of substance and authority of this advice leads it to have little political clout. This adds to the ineffectiveness of the Court since these opinions fail to have a hold in international relations.

The Court’s judge selection process has fueled accusations of bias, especially due to the disproportionate amount of power given to the Security Council in the process. Out of the fifteen judges that compose the Court, each of the five permanent members of the Security Council, the United States, Russia, China, France and the United Kingdom, has a seat reserved in the ICJ. The judges are nominated by the General Assembly but elected by the Security Council. Since the process of reelection is typically funded and canvassed by the judge’s home country, they have an incentive to gain the support of their national government, leading to a conflict of interest. This increases the chances that the candidates are biased in favor of their own nations, which undermines the very purpose of examining cases in a court of law. This damages the impartiality of the Court since it is not solely represented by judges of rotating nationalities but also by judges from nations permanently in the Security Council. If it is assumed judges will innately be biased, a rotation of representatives would at least help counterbalance this as every nation would have a voice at a point in time. Not to mention, the permanent members could theoretically wield an unparalleled amount of power if they consistently vote as a bloc. Furthermore, the efficacy of the ICJ is dependent upon the Security Council, which is charged with enforcing its decisions. [4] Article 94 (2) of the United Nations Charter specifically states, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council which may, if it deems necessary, make recommendations, or decide upon measures to be taken to give effect to the judgment.” [6] Since parties may approach the Council to ensure the ICJ’s decisions are upheld, the five permanent members of the Security Council have an unparalleled amount of influence in both the executive and judicial branches. 

In addition, the ICJ is criticized for its nomination of ad hoc judges by the parties involved in each case. According to Article 31 of the ICJ Statute, a party may nominate an ad hoc judge if none of the current sitting judges are of the party’s nationality. [7] S. Gozie Ogbodo suggests that this appears to ensure equality and fairness but is actually an abuse of power in An Overview of the Challenges Facing the International Court of Justice in the 21st Century (2012). Ogbodo claims the records demonstrate that ad hoc judges usually vote for their own country, irrespective of the majority decision, as the opportunity to be nominated again by their nation likely influences their vote. The policy suggests that a fair trial can only be conducted if the party is represented by a judge and undermines the principle that judges are not delegates of their own governments. [4] This suggests that an ad hoc judge will naturally be partial towards his own nation, defeating the purpose of a third party, the Court, mediating the case.

Conversely, many argue that the Court is in fact impartial. William Samore demonstrates the logic behind the Court’s layout in a paper entitled National Origins v. Impartial Decisions: A Study of World Court Holdings (1956). He argues that the nationality of a judge not only links him to his own state but also governments that have shared interests with his state. At the time, the group of states with the strongest alliance was the Communist bloc, but as indicated by the first case ever brought before the Court, the judges from these states often did not vote as a unit. During the preliminary stages of the Corfu Channel case involving the United Kingdom and Albania, Judge Winiarski (Polish), Judge Zoricic (Yugoslav), and Judge Krylov (Soviet national) were with the majority when they rejected Albania’s initial objection, while Judge Daxner (Czechoslovak), Albania’s ad hoc judge, dissented. Simultaneously in the Security Council, the U.S.S.R. and Poland said Albania was not liable for the mines in Albanian waters that destroyed British ships and injured British seamen. When the Court made the final decision finding Albania responsible, Ecer (Albania’s ad hoc judge), Judge Zoricic, and Judge Krylov dissented. However, Judge Winiarski voted with the majority even though the Polish government held an opposing position. [8] Thus, even though the ad hoc judge voted in favor of his country, Judge Winiarski did not vote as his country’s official position would suggest. Samore demonstrates that there have been instances where judges did not vote along with their nation’s official position despite the possibility of receiving support from their nation during the reelection process. This counterexample illustrates that all judges are not necessarily biased in favor of their respective nations. The impartiality of the Court is not jeopardized by judges acting as delegates of their own governments.

When developing the ICJ, the 1920 Jurists, the founders of the Statute, considered both removing judges when their states were parties as well as adding judges when nationals from each party were not present on the Court. If both parties had a national on the Court, the 1920 Jurists conceded that it would be logical for the judges to withdraw. However, this did not become the policy for fear of lacking quorum and diversity on the Court. The framers wanted to ensure different legal systems and ethnicities were represented. Furthermore, it seemed likely that many states would refuse to bring a case before the ICJ if a national did not sit on the Court. Ironically, a fear of partiality should a variety of nationalities not be represented on the Court may actually perpetuate the partiality of the Court. [8]

Although the effectiveness and authority of the International Court of Justice have been questioned on several occasions, there is less consensus when discussing its impartiality. The fact that all member states of the UN do not have to recognize the jurisdiction of the ICJ undoubtedly weakens its authority. The issue is inherent in its nature since the ICJ was created with the goal of preserving nations’ sovereignty. It is unclear whether the Court is biased as ad hoc judges may contribute to its equality or partiality depending on the case, the country, and the morality of the judge. Furthermore, the Security Council’s influence in the executive and judicial branches of the United Nations violates the democratic principle of separation of powers. But perhaps it is fitting that the UN represents a variety of legal systems, much like the nations that compose it.

Shree Mehrotra is currently a second-year in the College pursuing a major in Environmental Science.

References

[1] Charter of the United Nations, Article 2 (4)

[2] International Court of Justice. “History.” http://www.icj-cij.org/court/index.php?p1=1&p2=1.

[3] International Court of Justice. “Declarations Recognizing the Jurisdiction of the Court as Compulsory.” http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3.

[4] S. Gozie Ogbodo, Vol. 18: Iss. 1 Article 7 Annual Survey of International & Comparative Law: An Overview of the Challenges Facing the International Court of Justice in the 21st Century 100–01, 106, 108–09 (Academic Journals at GGU Law Digital Commons 2012)

[5] International Court of Justice. “Advisory Jurisdiction.” http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2.

[6] Charter of the United Nations, Article 94 (2)

[7] Statute of the International Court of Justice, Article 31

[8] William Samore, Vol. 34: Iss. 3 Article 1 Chicago-Kent Law Review: National Origins v. Impartial Decisions: A Study of World Court Holdings 198-99, 203-05 (Scholarly Commons @ IIT Chicago-Kent College of Law 1956)