On April 3, 1946, the International Court of Justice (‘ICJ’ or ‘the Court’) held its first ever meeting. The Court’s 80th birthday offers an opportunity to reflect upon what the Court means to legal academia and scholarship – but also what it has meant to me personally as a student, researcher, and lecturer.
Truthfully, considering my age, I have only actively ‘experienced’ 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 – an 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’s definition of a ‘dispute’. 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 – which, although beautiful, is not particularly special compared to other ancient buildings in continental Europe – can spark.
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 A weird, elusive feeling of mystery, authority, and hierarchy, upheld by sometimes outdated traditions and some level of intransparency, where the unspoken rules of how the politics and realities of the Court work are known only to a few.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 ‘upbringing’, 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 – even if just to criticize them. I’ve 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.
Ultimately, it’s 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’s editorial by Khaled El Mahmoud). Maybe this is precisely the magic of the Court. Everything might break apart, but there’s 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.
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’s success by assessing the Court’s caseload or by determining states’ compliance with the Court’s decisions, thus its ‘effectiveness’. All of this is important, but I believe that the Court’s 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’s job is to preserve, provide stability, as well as predictability – or as stipulated in Article 38 of the Court’s Statute, its function is “to decide in accordance with international law”. 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 noted that many of the rules we take for granted today emerged or evolved from the Court’s jurisprudence, be it obligations erga omnes, the duty to prevent one’s territory from being used to cause harm to other States, or legal obligations stemming from unilateral acts. 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 – sometimes explicitly, sometimes more implicitly.
Colonial Beginnings
To me, a good illustration of this is the South West Africa case, brought by Liberia and Ethiopia in 1960, which concerned South Africa’s 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.
In its decision on preliminary objections the Court held – with eight votes to seven – that “the 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”, 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 argued that although they were “not unmindful of, nor are we insensible to, the various considerations of a non-juridical character, social, humanitarian and other, which underlie this case”, “these matters [are] for the political rather than for the legal arena” and, thus, “cannot 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.” Four years later, the dissenting opinion became the majority opinion: In the second phase judgment of 1966 the Court revisited the issue of standing.
‘How?’, 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). But most importantly, perhaps, Spender, with the support of Fitzmaurice, convinced the Pakistani judge Khan, who Fitzmaurice deemed ‘difficult’ 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 for Ethiopia and Liberia, which he declined (a more in-depth retelling can be found in Philippe Sand’s ‘The Last Colony’). 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’s 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’s 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) is not only deeply rooted in colonial and imperial legal thought, it also serves as a good reminder of the Court’s origins: the Permanent Court of International Justice (‘PCIJ’), 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’s Statute, the identity of at least some PCIJ and ICJ judges, or the fact that the ICJ and PCIJ co-existed for a short period of time (the PCIJ was dissolved on April 18, 1946, cf. Hernández, p. 34 ff.)
Remnants of the Past?
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.
For instance, the Court was quick to untangle the political-legal-conundrum touched upon by Spender and Fitzmaurice, and clarified early on that “the Court has never shied away from a case brought before it merely because it had political implication” (Military and Paramilitary Activities in Nicaragua, para. 96 referencing the Corfu Channel Case) since the presence of political aspects in a dispute “does not suffice to deprive it of its character as a legal dispute” (Kosovo, para. 27). This political engagement becomes especially visible when reviewing the Court’s advisory history. For instance, in its Chagos Advisory Opinion, the ICJ found that the United Kingdom’s continued administration of Chagos constitutes a wrongful act entailing the State’s international responsibility, despite the fact that „[t]he General Assembly has not asked the Court to rule on any possible unlawful conduct of the administering Power” (cf. Tomka). Gevorgian accordingly observed the Court having thereby crossed “the thin line separating the Court’s advisory and contentious jurisdiction” – supposedly, in order to take a stance on Chagos’ 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 (OPT) and its Climate Change Opinion, 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’s latest decisions can be grasped just by looking at the extensive engagement in symposia on Völkerrechtsblog and Verfassungsblog.
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 “the most explosive international issue of the post-war world” (Dissenting Opinion of Judge Padilla Nervo, p. 452) – this being South Africa’s implementation of apartheid policies in Namibia – the Court appeared unable to unify on the issue of apartheid almost 60 years later in its OPT decision (para. 229). Whilst Judge Nolte found that “the Opinion cannot be understood as finding that the prohibition of apartheid has indeed been violated by Israel” (para. 8), Judge Tladi indeed “interpret[ed] [the Court’s] finding to be an acceptance that the policies and practices of Israel constitute a breach of the prohibition of apartheid” (para. 36). On some issues the Court keeps going in circles.
Where Does This Leave Us?
But what does the Court’s 80-year entanglement of ‘tradition vs. progress’ mean to us as international law scholars? From a researcher’s 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 play in legal academia and teaching, and what we should and can realistically expect from the Court. What renders a judicial institution ‘successful’? Why does this matter? What makes a judgment ‘good’ apart from a spotless doctrinal analysis? For me at least, the Court’s 80th 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 – both in teaching and publishing – the Court’s work in the vast legal-political landscape that we (unfortunately) find ourselves in.
Lea Köhne is a Research Associate and Lecturer at the Chair of European and International Law at the University of Potsdam. She also serves as Assistant to Counsel before the International Court of Justice. Her doctoral research focuses on repatriation in international law, while her broader research interests include human rights, international courts and tribunals, and the intersection of international and domestic law.