Symposium: High Politics at the International Court of Justice
The International Court of Justice’s intrinsic powers to decide all cases brought before it
By Ambassador Carlos Argüello
Published on 22 October 2024
This symposium invites us to reflect on the proliferation of cases concerning “high politics” adjudicated at the International Court of Justice (ICJ or “the Court”). However, the reference to “high politics” and the ICJ needs some clarification. It could be seen to suggest that there might be cases that are too “political”, and the Court should be careful with them. Indeed, it is frequently the case that legal and political issues are understood, mistakenly, to mean two different and conflicting things.
The Statute of the Court
It is in the very nature of international disputes that elements of politics are involved. In other words, all disputes submitted to the ICJ have political elements. The procedural act itself of filing an application and appointing an agent are both political acts. As Rosenne poignantly puts it “Litigation is a phase in the unfolding of a political drama.” Furthermore, it has to be recalled that as a principal organ of the United Nations (UN), the fundamental purpose of the ICJ is to maintain international peace and security. These issues are not limited to and probably could never be limited to strictly legal questions.
The Statute of the Court (the Statute) itself in Article 36 (1) is clear and has no need of great clarification. It imposes no limits on the powers of the ICJ to decide all types of disputes and not only strictly legal issues, as Kelsen points out. But if clarification were needed on this point, the travaux preparatoires of Article 36 (1) leave no doubt. When this article was discussed at the Washington Committee of Jurists in 1944, some delegations wanted to include a limitation to the effect that the jurisdiction only extended to “justiciable” matters or those “of a legal nature.” This restriction to the Court’s jurisdiction was not accepted and the reference to “legal disputes” continued, as in the PCIJ (Permanent Court of International Justice, the ICJ’s predecessor), only in Article 36 (2) for the optional clause jurisdiction as Rosenne correctly explains. In conclusion, it is intrinsic to the powers of the Court to decide all cases brought before it notwithstanding any political implications such disputes might have. The interpretation and application of this power has therefore not been a creation of the Court itself through its jurisprudence.
The Nicaragua Case
In discussing the issue of “highly political” issues before the Court, care must be taken not to revive the question of admissibility of these issues that had hopefully been put to rest several years ago, in particular in the Nicaragua v. United States case. When this case was filed on 9 April 1984 the US alleged that the case was inadmissible precisely raising the question of “political cases.” Although the judgment of the Court on the admissibility of the case was unanimous, the reaction of the United States after the judgment was to announce that it did not intend “to participate in any further proceedings in connection with this case”. When making this announcement the State Department added that:
We are profoundly concerned also about the long-term implications for the Court itself. The decision of November 26 represents an overreaching of the Court’s limits, a departure from its tradition of judicial restraint, and a risky venture into treacherous political waters.
The questions raised in that case and the reaction of the US still echo particularly in some states jealous of their powers. This is useful to recall when dealing with the subject of highly political questions before the Court, particularly when these involve powerful states. On that point, it is worth mentioning that although the Hostages case between the United States and Iran had not elicited any adverse comments on the decision of the ICJ to admit the case, in spite of the political issues involved, the Nicaragua case was treated differently. Even some of the judges that had been part of the unanimous ruling on the admissibility of both cases, had second thoughts on the Nicaragua case. One example is Judge Oda’s dissenting opinion. For his part, Judge Mosler commented, after the US announced its withdrawal from the optional clause jurisdiction, to the effect that it was “probably the worst reverse ever suffered by the Court. One can hardly imagine that, in the foreseeable future, States of any political importance would submit their legal disputes to the Court under the conditions of the Optional Clause.” But nonetheless, Judge Mosler also observed that the judgment:
“ha[d] enhanced the prestige of the Court in countries which were, up to now, reluctant to make use of it.”
This anticipatory comment of Judge Mosler on the impact of the case on the prestige of the Court is probably a better explanation of the more frequent use of the Court that states have been making since that time, than the suggestion made by Sir Robert Jennings that the increase of cases is due to the realisation of governments “that the adjudication process is an excellent way of dealing with certain kinds of ‘disputes.’” In fact, the cases that have come to the Court after the judgement in the Nicaragua case have been of “all kinds”, such as those of Iran v. the USA, the Lockerbie (Lybia v. UK), Bosnia v. Serbia, Georgia v. Russia, Ukraine v. Russia, Qatar v. UAE and South Africa v. Israel.
Implications of the Court’s intrinsic powers
The present-day situation is that the ICJ is dealing with many cases involving states from around the world. The reasons why there are so many states submitting “sensitive issues” to the Court is possibly due to the enhanced prestige acquired by the Court in handling these issues as it did with the Nicaragua case. Another important factor may be that the main forum for dealing with highly sensitive issues, the Security Council, is paralysed in every single “highly political” issue that comes before it.
The question addressed in this post is how should the Court deal with these highly political issues, particularly those involving world peace. The role of the Court is seen by many commentators as limited because it is generally understood that the Court can only be activated by cases over which it has jurisdiction. This generalisation is not entirely correct. As Rosenne points out, membership in the UN, which includes the Statute of the ICJ, implies acceptance of the incidental jurisdiction of the Court, namely provisional measures, advisory opinions and determinations of the Court’s own jurisdiction. More importantly, the ambit of this incidental jurisdiction has evolved through the practice of the Court. In the Anglo-Iranian Oil Co. case, the UK requested provisional measures against Iran even though the question of the jurisdiction of the Court was not clearly established. Notwithstanding this uncertainty, the Court for the first time used the concept of prima facie jurisdiction to order provisional measures. Although today we take this for granted, it was in the words of Rosenne an “inroad into the wall of national sovereignty as a barrier to the Court’s ability to function.”
If we consider the implications of this concept of prima facie jurisdiction, it simply means that even if it turns out that there is no effective jurisdiction, the Court may proceed to give its Order on provisional measures. In the Anglo-Iranian Oil Co. case the Court further clarified that the Order was operative up until the moment the Court delivered the judgment finding that it was without jurisdiction in the case. What this clearly means is that, without having jurisdiction, the Court was able to order provisional measures and maintain the effects of this Order until it found that it did not have jurisdiction. There is no question that Article 36 (6) allows all the leeway necessary for the Court to take such decisions, since any question with relation to the jurisdiction of the Court is decided by the Court itself.
When the concept of prima facie jurisdiction was first applied, it was not clear whether provisional measures were binding. This question was clarified later in the LaGrand case in which the Court indicated that its provisional measures “should be binding.” This Order was also given based on a finding of prima facie jurisdiction. Zimmermann/Tams point out that this decision of the Court was “surprising in its unambiguous clarity, as it plainly stated that provisional measures are binding without even mentioning at all the question of jurisdiction.”
The Court has taken the question of provisional measures further by, for example, deciding for the first time, that it would keep the matters covered by the Order in the Hostages case “continuously under review.” Recently, in the South Africa v. Israel case the Court ordered Israel to submit a report on its compliance with the Order. All these Orders were given on the basis of prima facie jurisdiction.
The Court’s understanding of its incidental jurisdiction has expanded since its judgement in the Bosnia Herzegovina v. Serbia and Montenegro genocide case in 1993. In this case Bosnia had asked the Court to indicate, not as a binding order but by way of clarification, what was the legal obligation of third states with respect to the situation under dispute. The Court denied this petition indicating that it “cannot, in the exercise of its power to indicate provisional measures, indicate by way of ‘clarification’ that those States or entities should take, or refrain from, specific action in relation to the acts of genocide which the Applicant alleges are being committed in Bosnia-Herzegovina.” In the Nicaragua v. Germany case, in its Order of 30 April 2024 the Court “considered it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict”, and in paragraph 23, reminded all states of their obligations under the Genocide Convention and the Geneva conventions. This reminder probably goes even beyond the “clarification” that had been requested by Bosnia. This reminder was not given in the context of an advisory opinion in which the Court speaks so to say urbi et orbi, but in the context of an order on provisional measures, that is, in a case involving only two parties, in which case Article 59 establishes that the decision of the Court only has binding force between these parties.
Conclusion
By way of conclusion, the Court could move forward in its “inroads into the wall of national sovereignty” in order to fully accomplish its function as a principal organ of the UN. Faced with the paralysis of the Security Council, another principal organ of the UN, the General Assembly in 1951 took the decision in the so called Uniting for peace resolution to fill this international void.
A decision by the Court along the lines of the Uniting for peace resolution would help clarify its powers and provide recourse to an effective method of peaceful resolution of disputes when the Security Council has not taken any action. The UN Charter (“the Charter”) imposes no limitations to a decision of this nature by the Court. It does not have, for example, the limitations imposed on the General Assembly with respect to the activities of the Security Council mandated in Article 12 of the Charter. In fact, there are no clear limits to the faculties of the Court in the Charter, and none pertinent in the Statute. As Rosenne comments, “It is curious that the Charter, which carefully delimits the functions and competences of the other principal organs of the UN, does not do so for the Court, but leaves that for the annexed Statute. There is no statement in the Charter of what the Court may or may not do in relation to the other principal organs. The Statute only partly remedies this.”
But without the need of any type of overt decision along the lines of the Uniting for peace resolution, the Court could order provisional measures even in cases where the jurisdiction is founded on forum prorogatum. The Court can do so simply on the basis of the indisputable authority given to it in Article 36 (6) of deciding on its own jurisdiction, which in fact is what it did when it came up with the concept of prima facie jurisdiction. –If the respondent is not amenable, the situation would simply be that the Court would have ordered provisional measures without ultimately having jurisdiction, which is what happened in the Anglo-Iranian Oil Co. case.
One could venture to add as food for further thought, that the Court could review the situation that was posed in the Aerial Incident Case (Pakistan v. India) in which the jurisdiction of the Court was invoked on the basis of Article 1 of the UN Charter and of the phrase added to paragraph 1 of Article 36, that so far has remained meaningless, that the jurisdiction of the Court comprises “all matters specially provided for in the Charter of the UN.”