The International Court of Justice: A Sheep in Wolf’s Clothing?

The United Nations (UN) operates to promote the ideals of peace and international cooperation. The primary judicial arm of the United Nations is the International Court of Justice (ICJ). The ICJ operates to settle disputes between states and to provide legal advice to the UN’s General Assembly. Members of the UN are parties to the ICJ and in becoming so have assented to obeying its rulings, arguably placing legitimacy by consent with the ICJ. However, the ICJ has limited means to enforce its rulings, and the rulings enforcement can be rejected by a veto in the security council.

While there are many areas to which I could discredit the structure of the judicial bench, I would like to take a moment to praise one feature of the ICJ: ad hoc judges. Allowing parties that lack representation on the judicial bench to appoint a judge to represent their interests is useful as it builds confidence that their interests will not be overlooked or ignored. This allows the rest of the bench to gain insight into the local customs and perspective of the party, and while most ad hoc judges will support the party that appointed them; it is usually of very little practical consequence in a bench composed of 15 others. Ad hoc judges allow a balancing of the bench when one party in a dispute has a member on the bench, but another doesn’t. While one would hope a judge would be above such petty national bias, it would be dangerous to be so optimistic. Allowing for ad hoc judges, consequently, assists in cancelling out the bias of the other party’s representative on the bench, as both would likely vote to support their home nation.

Now that we’ve finished with the pleasantries, we can move to discuss the fairly major shortcomings of the ICJ. It’s entire lack of enforceability.

While the ICJ lacks power of enforcement if a ruling is not followed through, it has the ability to refer the matter to the United Nations Security Council (UNSC) to take enforcement action. This sounds like a reasonable solution until you realise that the 5 permanent members (the United States of America [US], United Kingdom, France, Russia and China) hold the power to block any resolution. Then you’re once again reminded of the inability of states to get along and effective proposals to be passed through the UNSC. I digress though. The important thing to note is that this pesky veto does not transfer to the debate of the resolution. As a result, the permanent members can’t prevent scrutiny of their actions, but may block resolutions entirely. If a permanent member were to have a ruling be made against it, or in favour of one of its “enemies”, it holds the power to effectively nullify the authority the ICJ holds by granting themselves a status that is effectively above international law.

Of course this means that while a permanent member will have assented to abide by ICJ rulings they, in practice, have no legal obligation to. One only needs only to look at the Nicaragua case in 1986, where the US backed right-wing rebels in Nicaragua despite this contravening customary international law. In this case the US was found to be in breach of international law by breaching the national sovereignty of Nicaragua. The US, however refused to pay any of the compensation required of by the ruling made by the ICJ. The ICJ in turn required enforcement from the Security Council, not a surprise really. The US being a permanent member, however, effectively blocked any resolution that was passed by the Security Council. (As one might expect) This prevented the court’s decision to be enforced and upheld.

Following this, even in cases lacking a permanent member being involved, the ICJ still lacks the ability to enforce its rulings. For a ruling to be binding, both parties must assent, most acts of aggression will have at least one party unwilling to assent. This is likely due to the fact that a party knows when a ruling will not be in its favour. Any ruling not assented to by both parties will be submitted to the Security Council, which upon passing a resolution will bind member nations. This ultimately leads to a possibility of decisions favoring the values of and alliances of certain members of the Security Council. Considering that the Security Council has 15 members; a third of which come from the Western Europe and Others Group (WEOG), which also holds 3 permanent members (France, The United Kingdom, and the US). If you compare this to Latin America and the Caribbean which hold 2 seats and no permanent members, you can reach a conclusion that balance of power in the Security Council is weighted towards the Western Europe and Others group.

Let us go back to the Nicaragua case. Assuming the US couldn’t veto this resolution, the chances of the resolution passing the Security Council are hampered by a clear imbalance of regional representation. Nicaragua was not on the Council at the time of the resolution being proposed. This gives the US the power to debate its own crimes but not Nicaragua a chance to bear witness to the crimes committed against it. This imbalance, and likely bias towards nations with similar values could lead to self-interest blocs preventing rulings from passing the Security Council. Assuming all the members of the WEOG were able to influenced by the US’s strength, (which is not an unreasonable assumption), they would already have a head start of having the resolution fail with their 5 members.

Why should we allow the mighty nations or power blocs to place themselves above international law?

The International Court of Justice is important for the means of enforcing international law and ensuring nations be held accountable. However, when parties may subvert this, either by outwardly rejecting the findings or by exploiting powers vested in them by the UN Charter, international law fails and sets a precedence that makes a mockery of the institutions of the United Nations and the International Court of Justice.

C.J. Griffith is a first year UWA student studying a double major in Politics and International Relations, and Employment Relations. He likes to spend his time ranting and writing about politics and the various shortcomings of institutions.

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