Symposium: High Politics at the International Court of Justice
‘High Politics’ at the International Court of Justice
By Ntina Tzouvala
Published on 16 October 2024
It is a long-held position of the International Court of Justice (ICJ) that it is not precluded from pronouncing on the legal dimensions of a question simply because said question is also part of a political dispute. This settled doctrinal point, though, can hide as much as it illustrates about the real-life workings of international law. Falling back to doctrine does not explain why an increasing number of states and international bodies, such as the UN General Assembly or the International Labour Organisation, have been keen to submit extremely sensitive questions to the Court over the past decade, and especially in the past 2-3 years. From the Chagos Islands Advisory Opinion to the effort of Pacific islands (via the UN General Assembly) to have the Court pronounce on the legal implications of anthropologic climate change and from Ukraine’s legal challenges against Russia’s full-scale invasion in 2022 to South Africa’s persistent return to the Court seeking provisional measures against Israel under the Genocide Convention, the ICJ is being asked to rule on some of the most controversial political issues of our time.
The role of Global South states in this shift is impossible to ignore, as the Court becomes a forum for them to highlight their priorities, but also to demonstrate their approach to international legal argumentation as a whole. It is also notable that this shift toward the ICJ is taking place while other, specialised adjudicative fora, including investment tribunals, the WTO dispute-settlement system, the International Court of Justice, are undergoing a profound crisis of legitimacy. Our first contribution, written by Professor Heike Krieger, offers a persuasive reading of this peculiar juncture, which combines a profound legitimacy crisis of the international (legal) order with an upsurge of litigation in front of the ICJ. Krieger argues that the ICJ’s refusal to endorse ‘thick’ conceptualisations of international law and international community in the past may explain the willingness of a broad range of states and international organisations to entrust it with politically sensitive questions. Krieger understands this moment as one of possibility that may lead to the rise of a negotiated international (legal) order that is representative of the worldview and interests of a broader range of states in comparison to the hegemonic neo/liberal order of the immediate post-Cold War era. In his own contribution, Professor Gleider Hérnandez offers a more ambivalent answer to the question of what this wave of litigation tells us about the international (legal) order writ large. He rightly emphasises that ideas of international community immanent in recent high-profile cases are partial and over-determined by existing alliances and identifications rather than genuinely universal. However, he also contends that the dynamics of this litigation wave are not whole reducible to the intentions or ideological biases of the involved states. Rather, his contribution finds hope—but not redemption or reassurance—to widespread public engagement with and awareness of these high-profile cases, even in light of uncertainty regarding the Court’s willingness and ability to respond to heightened public scrutiny.
Big-picture readings of the present moment need to be combined with a deep understanding of the dynamics of individual cases. Such granular assessment is important insofar as many of the cases adjudicated in front of the ICJ involve profound human suffering and death often raising to the level of destruction of peoples. It is, sadly, a testament to the escalating violence of our times that two of these high-profile cases, the case of The Gambia against Myanmar and of South Africa against Israel, concern allegations of genocide under the relevant Convention. Emraan Azad’s post focuses on the ongoing persecution of the Rohingya people by Myanmar. Azad demands that we look beyond legal technicalities concerning standing and obligations erga omnes partes. Rather, he focuses on the Court’s unwillingness to demand the co-ordinated return of displaced Rohingya people as part of its provisional measures order. Azad situates this reluctance within the institutionalised dependence of the ICJ on the UN Security Council when it comes to the enforcement of its decisions. This dependence makes geopolitics and the interests of Great Powers part of the Court’s institutional design and, by consequence, part of international law. This important contribution illuminates the human costs of this integration between international law and geopolitical power as the displacement of the Rohingya people continues despite the favourable provisional measures order.
This charge of ineffectiveness and deference to power is not new when it comes to international law in general and to the ICJ in particular. If overstated though, this point risks becoming divorced from reality. As this symposium was being finalised, the UK and Mauritius announced that sovereignty over the Chagos Archipelago would be returned to Mauritius and Chagossians would be allowed to return to their ancestral homelands. Notably, though, this right to return would not include Diego Garcia and the transfer of sovereignty would not impact the US military base on the island. Even though a lot can be said about this crucial carve-out, it is hard to argue that the 2019 Advisory Opinion did not play an important role in forcing the UK to relinquish its colonial claims over the islands. Dr Trung Nguyễn finalised his contribution before this important development, but he nevertheless captured the significance of the Opinion not only for Mauritius but for the political and legal project of decolonisation. Adopting an optimistic tone that treats the eradication of the final vestiges of colonialism as inevitable, Nguyễn’s piece highlights the doctrinal and broader importance of the Chagos Advisory Opinion. In his view, what sets this case apart is both the Court’s doctrinal pronouncement that the right to self-determination prohibiting partition had crystallised in the mid-1960s, and also its willingness to follow this doctrinal finding to its logical conclusion and unequivocally condemn the actions of the UK. Nguyễn calls this bold articulation of the anti-partition dimension of self-determination the “anti-dispossession jurisprudence” of the Court and persuasively shows that the ICJ mobilised this jurisprudence in its recent Advisory Opinion on the legality of Israel’s never-ending occupation of the Occupied Palestinian Territory.
There are few people better placed to comment on the jurisprudence of the ICJ in general and its political dimensions in particular than our next contributor, Ambassador Carlos Argüello. Ambassador Argüello has represented repeatedly Nicaragua in front of the Court, more recently in its case against Germany. His contribution offers a comprehensive doctrinal account of the Court’s insistence that a case’s political dimensions do not prevent it from pronouncing on its legal aspects. Importantly, Ambassador Argüello draws our attention to the fact that certain cases are perceived (by Western states and commentators) as politically sensitive while others, that touch upon equally sensitive issues are not. Ambassador Argüello concludes his contribution by remarking that this wave of adjudication in front of the ICJ is at least in part the outcome of the inability of the UN Security Council to address the most urgent political crisis of our times and suggests that the Court steps up in ways that parallel the Uniting for Peace resolution of the UN General Assembly in the early days the Cold War.
Our final contributor, Dr Ana LuísaBernardino, moves away from a focus on legal doctrine and illuminates the role of high-profile cases as ways of creating an authoritative factual record about contentious historical events. Focusing on the unfolding violence in Gaza and, more broadly in Palestine, Bernardino masterfully deconstructs the argument put forward by Israel and by some judges that the Court does not have at its disposal enough reliable facts to adjudicate the relevant cases. Her contribution not only shows the wealth of information available to the Court but, crucially, suggests that it is an abdication of one’s duty to the Court to simply assert this purported absence of facts as if such as such an assertion frees them from the duty of argumentation and persuasion that is inherent in international legal practice, including judicial practice.
Our symposium’s six contributions are rich and reflect a broad range of methodological, geographical and political perspectives. However, they are not—nor do they purport to be—exhaustive of the topic. This is the case for a number of reasons, including the fact that it will take years for some of these cases to be decided on the merits, if they ever reach this stage in the first place. As a result, the nature and significance of this moment will only be deciphered retrospectively. In the meanwhile, and without the benefit of hindsight, it seems fair to say that Courts seems to have left behind its unwillingness to raffle any feather that characterised some of its more politically visible jurisprudence in the 1990s and early 2000s. How far though the Court is prepared to go, especially in the context of an increasingly polarised world, remains to be seen.