{"id":28191,"date":"2026-04-01T08:00:26","date_gmt":"2026-04-01T06:00:26","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=28191"},"modified":"2026-04-08T11:34:12","modified_gmt":"2026-04-08T09:34:12","slug":"editorial-51-the-icj-at-80","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/editorial-51-the-icj-at-80\/","title":{"rendered":"Editorial #51: The ICJ at 80"},"content":{"rendered":"

On April 3, 1946, the International Court of Justice (\u2018ICJ\u2019 or \u2018the Court\u2019) held<\/a> its first ever meeting. The Court\u2019s 80th<\/sup> birthday offers an opportunity to reflect upon what the Court means to legal academia and scholarship \u2013\u00a0but also what it has meant to me personally as a student, researcher, and lecturer.<\/p>\n

Truthfully, considering my age, I have only actively \u2018experienced\u2019 the ICJ for very few years compared to other colleagues. Nonetheless, my relationship with the Court has undergone changes. During law school the ICJ was a mystical creature \u2013\u00a0an ominous institution somehow surrounded by this fog of authority and unspeakable wisdom. I remember learning and reciting its case law as if it were, my legal bible, believing I had an epiphany once I understood the Court\u2019s definition of a \u2018dispute\u2019. Similarly, the first time I got to visit the Court for work purposes, I was excited and anxious as if I was about to meet an idol I had long looked up to. How weird, I thought after some time, how many emotions a red brick castle \u2013 which, although beautiful, is not particularly special compared to other ancient buildings in continental Europe \u2013 can spark.<\/p>\n

I believe that ultimately, institutions like the Court are built on exactly that. A weird, elusive feeling of mystery, authority, and hierarchy, upheld by sometimes outdated traditions and some level of intransparency, where the unspoken rules of how the politics and realities of the Court work are known only to a few. Later on in my legal \u2018upbringing\u2019, I was introduced to concepts such as critical legal studies, which aim to dismantle the system and question the authority we often automatically attribute to institutions such as the Court. Another epiphany: What if there is more to law than just the institutions that tell us what the law is? However, oddly enough, even critical legal theorists often find themselves engaging with the Court and its decisions \u2013 even if just to criticize them. I\u2019ve seen myself falling into the same pattern, teaching international law through the lens of the ICJ time and again. As if the Court had exclusive access to universal truths that remain hidden to others.<\/p>\n

Ultimately, it\u2019s hard to ignore the ICJ. We find ourselves going back to institutions like the Court. Maybe it is because long-standing institutions such as the Court provide some sort of certainty in times of instability and raging crisis narratives (on the issue of crisis narratives see last month\u2019s editorial<\/a> by Khaled El Mahmoud). Maybe this is precisely the magic of the Court. Everything might break apart, but there\u2019s a good chance the ICJ has something to say about it. When working in international law feels like fighting windmills, we at least know that the red brick castle still stands despite all storms.<\/p>\n

At the same time, institutions like the Court are not an end in themselves. To survive the tides of international relations, the Court needs to continuously prove it is up to the job. Some have tried to measure the Court\u2019s success by assessing the Court\u2019s caseload<\/a> or by determining states\u2019 compliance<\/a> with the Court\u2019s decisions, thus its \u2018effectiveness\u2019<\/a>. All of this is important, but I believe that the Court\u2019s real selling point is often much more subtle and nuanced than this. Also, this is where it gets tricky: On the one hand, the Court\u2019s job is to preserve, provide stability, as well as predictability \u2013 or as stipulated in Article 38 of the Court\u2019s Statute, its function is \u201cto decide in accordance with international law<\/em>\u201d. On the other hand, it must react and adapt to newly unfolding injustices. Otherwise, it risks becoming a passive spectator, succumbing to irrelevance. In this sense, Judge Tladi<\/a> noted that many of the rules we take for granted today emerged or evolved from the Court\u2019s jurisprudence, be it obligations erga omnes<\/em><\/a>, the duty to prevent<\/a> one\u2019s territory from being used to cause harm to other States, or legal obligations stemming from unilateral acts<\/a>. In its 80 years, the Court has tried to position itself somewhere between tradition and progress. In between the cracks of 80 years of jurisprudence, we see glimpses of this everlasting conflict \u2013 sometimes explicitly, sometimes more implicitly.<\/p>\n

Colonial Beginnings<\/strong><\/p>\n

To me, a good illustration of this is the South West Africa case<\/a>, brought by Liberia and Ethiopia in 1960, which concerned South Africa\u2019s administration over Namibia (then South West Africa) and its application of apartheid policies to the territory. One of the questions before the Court was whether Liberia and Ethiopia had standing to bring the case, since it concerned the existence and enactment of a League of Nations mandate held by South Africa over South West Africa.<\/p>\n

In its decision on preliminary objections<\/a> the Court held \u2013 with eight votes to seven \u2013 that \u201cthe Members of the League were understood to have a legal right or interest in the observance by the Mandatory of its obligations both toward the inhabitants of the Mandated Territory, and toward the League of Nations and its Members\u201d, thereby paving the way for the substantive merits phase of the case. However, this result was disputed by the Australian and British judges Spender and Fitzmaurice, who in their dissenting opinion<\/a> argued that although they were \u201cnot unmindful of, nor are we insensible to, the various considerations of a non-juridical character, social, humanitarian and other, which underlie this case\u201d, \u201cthese matters [are] for the political rather than for the legal arena\u201d and, thus, \u201ccannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.\u201d Four years later, the dissenting opinion became the majority opinion: In the second phase judgment of 1966<\/a> the Court revisited the issue of standing.<\/p>\n

\u2018How?\u2019, one may ask. The composition of the Court fundamentally changed after 1962. Spender had become president, one judge died and one fell ill (cf. Higgins<\/a>). But most importantly, perhaps, Spender, with the support of Fitzmaurice, convinced the Pakistani judge Khan, who Fitzmaurice deemed \u2018difficult\u2019 to excuse himself from the proceedings due to an alleged lack of impartiality. The reason was that he had been approached to act as judge ad hoc<\/em> for Ethiopia and Liberia, which he declined (a more in-depth retelling can be found in Philippe Sand\u2019s \u2018The Last Colony\u2019<\/a>). Ultimately, the decision was left to only 14 judges, and the judges who now comprised the majority in 1966 were those who formed the minority in 1962. The Court\u2019s changed composition resulted in a split vote of seven to seven. Under Article 55 of the ICJ Statute, the president holds the casting vote in cases of equality of votes. Spender thus effectively flipped the coin in favour of South Africa and thereby enabled a revision of the Court\u2019s initial finding on admissibility, which in the end led to the dismissal of the case. The decision (which was harshly criticised by many, e.g. here<\/a>) is not only deeply rooted in colonial and imperial legal thought, it also serves as a good reminder of the Court\u2019s origins: the Permanent Court of International Justice (\u2018PCIJ\u2019), which was loosely connected to the system of the League of Nations. This continuity is exemplified by provisions such as Article 36 para. 5 of the Court\u2019s Statute, the identity of at least some PCIJ and ICJ judges, or the fact that the ICJ and PCIJ co-existed<\/a> for a short\u00a0period of time (the PCIJ was dissolved on April 18, 1946, cf. Hern\u00e1ndez<\/a>, p. 34 ff.)<\/p>\n

Remnants of the Past?<\/strong><\/p>\n

On a more positive side, the decision may also remind us of how far the ICJ has come since then. The Court has increasingly become bolder, testing the limits of its judicial functions in order to serve justice.<\/p>\n

For instance, the Court was quick to untangle the political-legal-conundrum touched upon by Spender and Fitzmaurice, and clarified early on that \u201cthe Court has never shied away from a case brought before it merely because it had political implication\u201d (Military and Paramilitary Activities in Nicaragua<\/a>, para. 96 referencing the Corfu Channel Case<\/a>) since the presence of political aspects in a dispute \u201cdoes not suffice to deprive it of its character as a legal dispute\u201d (Kosovo<\/a>, para. 27). This political engagement becomes especially visible when reviewing the Court\u2019s advisory history. For instance, in its Chagos Advisory Opinion<\/a>, the ICJ found that the United Kingdom\u2019s continued administration of Chagos constitutes a wrongful act entailing the State\u2019s international responsibility, despite the fact that \u201e[t]he General Assembly has not asked the Court to rule on any possible unlawful conduct of the administering Power\u201d (cf. Tomka<\/a>). Gevorgian<\/a> accordingly observed the Court having thereby crossed \u201cthe thin line separating the Court\u2019s advisory and contentious jurisdiction\u201d \u2013 supposedly, in order to take a stance on Chagos\u2019 decolonisation. Similarly, and most recently, the Court has added much to the development of international law through its Advisory Opinion on the Occupied Palestinian Territory<\/a> (OPT) and its Climate Change Opinion<\/a>, which in one way or another provided major breakthroughs in the areas of climate change litigation and the law of occupation. The impact of the Court\u2019s latest decisions can be grasped just by looking at the extensive engagement in symposia on V\u00f6lkerrechtsblog<\/a> and Verfassungsblog<\/a>.<\/p>\n

Despite all that, and weirdly enough, the OPT opinion and the South West Africa case feel like a full-circle moment: Whilst in 1966 the Court evaded a decision on \u201cthe most explosive international issue of the post-war world\u201d (Dissenting Opinion<\/a> of Judge Padilla Nervo, p. 452) \u2013 this being South Africa\u2019s implementation of apartheid policies in Namibia \u2013 the Court appeared unable to unify on the issue of apartheid almost 60 years later in its OPT decision<\/a> (para. 229). Whilst Judge Nolte found<\/a> that \u201cthe Opinion cannot be understood as finding that the prohibition of apartheid has indeed been violated by Israel\u201d (para. 8), Judge Tladi<\/a> indeed \u201cinterpret[ed] [the Court\u2019s] finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid\u201d (para. 36). On some issues the Court keeps going in circles.<\/p>\n

Where Does This Leave Us?<\/strong><\/p>\n

But what does the Court\u2019s 80-year entanglement of \u2018tradition vs. progress\u2019 mean to us as international law scholars? From a researcher\u2019s perspective, the Court is a gift that keeps offering endless possibilities for potential papers. However, this might also be a good time to reflect upon the role that the ICJ should<\/em> play in legal academia and teaching, and what we should and can realistically expect from the Court. What renders a judicial institution \u2018successful\u2019? Why does this matter? What makes a judgment \u2018good\u2019 apart from a spotless doctrinal analysis? For me at least, the Court\u2019s 80th<\/sup> birthday is a good reminder to look beyond just the operative part of its decisions and its reasoning. A reminder not just to consume, but to contextualise \u2013 both in teaching and publishing \u2013 the Court\u2019s work in the vast legal-political landscape that we (unfortunately) find ourselves in.<\/p>\n","protected":false},"excerpt":{"rendered":"

On April 3, 1946, the International Court of Justice (\u2018ICJ\u2019 or \u2018the Court\u2019) held its first ever meeting. The Court\u2019s 80th birthday offers an opportunity to reflect upon what the Court means to legal academia and scholarship \u2013\u00a0but also what it has meant to me personally as a student, researcher, and lecturer. Truthfully, considering my […]<\/p>\n","protected":false},"author":37,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3686,3743],"authors":[7962],"article-categories":[3577],"doi":[],"class_list":["post-28191","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-development","tag-icj","authors-lea-kohne","article-categories-our-own-news"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20260401-172910-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28191","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/37"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=28191"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28191\/revisions"}],"predecessor-version":[{"id":28192,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/28191\/revisions\/28192"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=28191"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=28191"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=28191"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=28191"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=28191"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=28191"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}