Symposium: High Politics at the International Court of Justice
Mega-Political Cases before the ICJ: Transforming a Hegemonic into a Negotiated Order?
By Heike Krieger
Published on 16 October 2024
In recent years, states have increasingly turned to the International Court of Justice (ICJ) to adjudicate what one may describe as ‘mega-political’ cases. Such cases concern legal disputes around deep-seated disagreements about political, social or economic developments that challenge the creation of shared understandings of politics, morality and even reality internationally or domestically. In this blog post, I will argue that this trend is closely related to the profound structural changes in the international order that we currently witness. After all, several of these cases concern conflicts and challenges that could not be resolved within the structures of the ‘old’ liberal international order. In that sense, they represent breaking points of that order. For many, the conflict between Israel and Palestine stands for the unfulfilled promises of international law, for a fracture between law and shared understandings of morality that risks the international order to collapse into a world of dehumanisation. The Russian aggression against Ukraine at least partly developed from the geopolitical shifts at the end of the Cold War and undermines foundational rules of the international legal order. Anthropogenic climate change is a planetary challenge that actors under the old order fostered and have hardly been able to contain. Related to the most central community interests around which the old order had been normatively erected, such as the prohibition of genocide or the basic rules of international humanitarian law, these mega-political cases do not only represent failures of the old order but remain essential testing grounds for any vision of a new order. However, why do states choose the ICJ as the arbiter in this testing ground? Hardly any observer would expect the Court to resolve these mega-political conflicts, and the underlying processes of order-making seem to belong more neatly to the political realm. Why then opt for law instead of or as part of political negotiations?
Answers to why mega-political cases, particularly those concerning armed conflicts, are brought before the ICJ stress that court proceedings may convert a multifaceted political conflict into a juridical case through legal techniques and thereby contribute to delineating and restraining it. There is at least a possibility that the Court’s involvement may contain some of the ongoing hostilities, mainly where the ICJ orders provisional measures. Ideally, court proceedings may generate some trust among the parties because they provide a stabilising frame within which they have assigned roles and may re-create shared understandings. A court decision generates an argumentative structure that provides a corridor within which future legal claims can be raised. To rephrase it in terms of legal positivism, a court decision ‘objectifies a subjective assertation of rights’ (Esders, 171). Thereby, it also offers reference points for future political negotiations. Thus, court decisions may contribute to post-conflict reconstruction, among other things, through settling legal aspects of the conflict, including reparations (Tams, 746), or by constructing authoritative narratives of the conflict’s history (Steininger/Deitelhoff, 116). However, hopes for containment and de-escalation cannot go too far. In the past, the ICJ has played only a limited role in containing conflicts. For jurisdictional reasons, the Court can primarily address segments of a conflict, and due to the length of proceedings, judgments have mostly been handed down when conflicts had already been contained by other means (Tams, 750). Thus, what remains the most crucial motive for bringing mega-political cases before the ICJ is that they are an instrument for the weaker party to raise public awareness about the underlying conflicts, to mobilise the support of international audiences (here and here), not only for their cause but also for the underlying alternative visions of a new order and thereby to make a plea for the reconstruction of international law.
A Plea for a Reconstruction of the International Legal Order as a Negotiated Order
A possible reading of current developments suggests that the actors bringing mega-political cases to the ICJ make a twofold plea: a plea for a legal reconstruction of the order rather than a revolution and a related plea to transform the former, hegemonic order into a negotiated one. By relying on international law and international legal procedures, states plea for reconstructing the international legal order instead of opting for sheer political ‘tabula rasa’ processes (cf. Mégrèt, 221) where unmitigated political power competition and, in particular, the most powerful state will decide the outcome of the transformation. Instead, a plea for reconstruction can rely on the benefits of existing path-dependencies while – ideally – challenging them constructively. The opposite tendencies associated with reformist rather than revolutionary political and legal traditions require aligning the interests in a fixed framework set by the law with the desired changes in norms or even the order as a whole. In these processes, the ICJ may appear to be a particularly suitable forum for actors challenging the old order because its jurisprudence – arguably (Hernández, 27) starting with the Corfu Channel Case and the Conditions of Membership Advisory Opinion – tends to be based on thin, open, and pluralistic understandings of central order-building concepts. These include a conceptualisation of the community for which an order is built as contained in the legal term ‘international community’ and a conceptualisation of the bearers of an order, i.e., actors’ legitimacy and responsibility for an order’s common or shared interests. The thin, open, and pluralistic understandings of central legal concepts support a negotiated order-building process in which many states (and non-state actors) hold the power, agency, and political consciousness to create an order. They provide space to contest the hegemonic liberal international order, in which the US, as the single superpower, aimed to impose its order ideas on the other actors (here and here).
Conceptions of an International Community
At the centre of international order-building, there is the question as to whether, despite power asymmetries and value conflicts, there is a ‘reality of shared interests’ (Hurrell, 29) that operates as the basis for constructing a community that fosters cooperation for mutual benefits. Such discourses about ‘the international community’ fared high after the end of the Cold War. Especially in the context of global constitutionalism, conceptions of ‘the international community’ (here, here, and here) reflected a thick and hegemonic order filled with liberal visions of holistic universalism and the liberal interpretation of certain human rights. Despite the period’s humanitarian optimism, the hegemonic structures of that order turned its value- orientation into a reproduction of colonial and imperialist patterns.
In contrast to these value-laden ‘assimilationists’ (Johns, 32) ordering attempts, the ICJ has so far resisted replenishing the concept of an ‘international community’ with any thick ideological background (here and here). Based on such a thin understanding, the concept can offer a frame for order-making by providing the space for different actors to formulate counter-hegemonic conceptions in an international order that continues to be determined by profound value conflicts between very differently constituted societies and states. International law offers a common vocabulary and procedures to mitigate value conflicts in a pluralistic system. Thus, thin, formal, open conceptions devoid of a strong ideological grounding may serve as a projection and identification surface for all (Krieger, 453). In particular, in this period of turbulence and systemic contestations, in which the whole idea of an international community has come under strain, such concepts can be seen as an invitation to negotiate. Accordingly, Fleur Johns has stressed that in current applications before the ICJ, very different conceptions of an ‘international community’ have come into play. These may include more traditional liberal understandings, such as in the case of Canada and the Netherlands v. Syrian Arab Republic concerning torture, or anti-imperialist readings in the case between South Africa and Israel concerning the Genocide Convention. Based on these diverging understandings, they can be read as an offer to other states to participate in negotiations around a new order by supporting the claims raised or adding their own perspectives. Thus, the increase in mega-political cases based on erga omnes partes obligations and third-party interventions before the ICJ might reflect the willingness of states to engage with a plea for a negotiated rather than a hegemonic order.
Actors Responsible for Common Interests
With sovereign equality becoming the decisive standard for membership in the international legal order, order-building raises further questions of ‘patterns of social stratification…and differential membership’ (Hurrell, 95). While differential membership has been a characteristic of the hegemonic liberal international order, a negotiated order would have to rely on a willingness to recognise others as legitimate actors and acknowledge that they pursue plausible interests. A negotiated order would have to be conceived as an ‘order of respect and mutual recognition’ (Nijman, 30). For such approaches, the jurisprudence of the ICJ offers another anchor point.
Visions of the liberal international order heavily affected the legitimacy perceptions of its actors to the extent that such political perceptions penetrated the legal structures. Conceptions of a ‘liberal anti-pluralism’ dominated the debate after the end of the Cold War in approaches that aimed to banish from the international (legal) order certain states whose liberal democratic credentials were doubtful. For example, there were efforts in the European Communities and in scholarship to add the criterion of a democratic rule of law to the legal prerequisites for recognising states and governments. Some even called for the racist standard of ‘civilised nations’ in Article 38 of the ICJ Statute to only cover democratic states (cf. Alvarez, 250). These legal positions aimed at turning the international (legal) order into a hegemonic instrument of exclusion in the name of liberalism (Krieger, 596).
Still, these perceptions continue to inform current criticism of the motives of Nicaragua and South Africa in bringing cases against Israel and Germany before the ICJ. This criticism aims to delegitimise their claims to not only act in their interest but also to assert a common interest. For example, in the public debate in Germany, observers placed particular emphasis on Nicaragua’s possible political and strategic motives for starting proceedings before the ICJ. They pointed to Nicaragua’s problematic human rights record and the timing of the application, which was initiated two days after the UN Group of Human Rights Experts on Nicaragua had released a report on the human rights situation. Nicaragua is said to distract attention from the country’s internal situation and simultaneously discredit Germany as a critic of human rights violations. Reports about Russia as the driving force behind the proceedings receive prominent attention. Public interest litigation—so the story runs—is turned into lawfare by illegitimate actors. According to this perspective, only certain actors can conceivably act for common interests.
However, linked to its thin understanding of the ‘international community’, the ICJ’s jurisprudence works against attempts at the hegemonic exclusion of certain actors. Liberal anti-pluralism is hardly compatible with a more traditional positivist understanding of international law as embraced by the UN Charter and the jurisprudence of the ICJ. Admittedly, there are valid reasons for the perception that some states might be instrumentalising the Court against some other states for strategic political reasons. However, in its jurisprudence, the Court as a court of law has rejected the relevance of such arguments. For example, the ICJ has repeatedly cautioned against applying a ‘clean hands’ doctrine. Defending common interests is not a legal privilege for democratic states or those that have never violated international law. Defending common interests is not precluded by also pursuing political interests of all sorts.
The Limits of Changing the International Legal Order through Adjudication
However, attempts to ascribe the ICJ to the role of an arbiter in transforming international relations from a hegemonic to a negotiated order come at a price. These attempts raise the question of the appropriate place of law and adjudication during transformation processes. Such a role for the ICJ in order-making processes may overstrain the Court. The Court may not be able to meet expectations about its role for normative or for practical reasons. The legal frame and the existing path dependencies may increasingly be seen as hurdles in the transformation process, with the Court not being able to contribute to a re-creation of shared understandings. Non-compliance may impact its authority and perceptions that the Court is politically instrumentalised. Finally, budgetary restrictions may limit its capacity to deal with the sheer number of cases and uphold a quality of reasoning de lege artis.
These fears shine through some of the declarations in the provisional orders concerning the conflict in Gaza. For example, Judge Nolte emphazises that ‘the Court can play only a limited role in resolving the situation. It must be careful not to overstep the limits of what it can and should do… act[ing] only on the basis of the law, independently of all outside influence or interventions whatsoever, in the exercise of the judicial function entrusted to it alone by the Charter and its Statute.’ An emphasis on a restrictive-positivist reading of the Court’s competencies under the UN Charter and the Genocide Convention aims to curb proceedings, which some states may see as a political instrumentalisation of the Court not only in the concrete case at hand but also in the broader tug o’ war of the future direction of the international (legal) order. Judge Tladi’s exclamation: ‘But the Court is only a Court!’ encapsulates similar concerns. Eventually, negotiating for a different international legal order through the jurisprudence of the ICJ may be too far-fetched of an endeavour. With its jurisdiction based on consent and due to the ensuing substantive jurisdictional limitations, it seems doubtful that actors can create an alternative order through the jurisprudence of the Court and yet, for many middle powers and small states, the Court will remain one tool in the toolbox of change.
Heike Krieger holds the Chair for International Law and Public Law at Freie Universität Berlin. She is Vice-President of the German Society of International Law. She has acted as chair of the interdisciplinary Berlin Potsdam Research Group (Kollegforschungsgruppe) ‘The International Rule of Law – Rise or Decline?’ between 2019 and 2024 and was a Max Planck Fellow at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, between 2017 and 2021. Heike Krieger is Editor-in-Chief of the Yearbook of International Humanitarian Law (T.M.C. Asser Press and Springer). Her recent publications include the ‘Research Handbook on International Law and Domestic Legal Systems’ (Edward Elgar, forthcoming, co-edited with Helmut Aust and Felix Lange) and the edited volume ‘Tracing Value Change in the International Legal Order’ (OUP 2023, co-edited with Andrea Liese).