International Court of Justice and Essay

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  • Subject: Business - Law
  • Type: Essay
  • Paper: #32036491

Excerpt from Essay :

" (Coleman, 2003)

Coleman states that by the very nature of international disputes and the states desiring to protect their national interest results in "all international disputes" becoming "inevitably political in nature..." (Coleman, 2003) Variation is noted in the 'degree of political volatility' that will exist and notes as well that "just how political a dispute will be extremely subjective." (Coleman, 2003) the dependent factors are stated to within a matrix of diverse factors affecting national interest and includes but is not limited to:

1) External economic pressures;

2) Domestic needs; and 3) National pride and prestige. (Coleman, 2003)

Coleman states that the suitability and capacity of the International Court of Justice has been questioned in regards to it 'comprehending and considering "...highly political matters or 'non-justiciable' issues." (Coleman, 2003) One example given is that of the "weapons embargo put in place by the Security Council during the conflict in Bosnia-Herzegovina." (Coleman, 2003)

Coleman relates that Sir Robert Jennings, a former ICJ judge of many years that if the Court were faced with the question of whether such an embargo was a denial of the Yugoslavian right to self-defense, a legal right contained in art 51 of the Charter of the United Nations, then this would involve the Court passing judgment on United Nations policy Such a judgment would be inappropriate, he argues, since the Court, as a court of law, could not understand or attach the same degree of importance to such issues as the overriding need to contain violence and the fear of escalation of violence in the delicate balance of affairs in the Balkans powder keg. He goes further and also asserts that in such a situation the Court may actually exacerbate a highly political dispute." (Coleman, 2003)

III. Definition of a 'Legal' Dispute

The Statute of the International Court of Justice 'Article 36' "restricts the jurisdiction of the court to legal questions." (Coleman, 2003) in determining precisely what constitutes a legal dispute, "there have been many attempt to distinguish a legal or justiciable dispute from a political or non-justiciable one, but it is difficult, if not impossible to do so." (Coleman, 2003) Coleman questions whether the possibility exists for reduction or refinement of a political dispute "into questions of facts and law" and whether judges are able to "isolate and identify 'justiciable issues' that courts and judges have been trained to face and resolve." (2003)

Jennings holds as do many others that "...a mixture of law and politics is unavoidable...in an international dispute" and further expresses being very skeptical concerning "claims to an ability to distinguish between political and legal questions within a dispute." (Coleman, 2003) the example stated in Coleman's work is the case in which, the U.S. Government, withdrew from further involvement in Nicaragua and justified this through stating that the conflict "...was not a 'narrow legal dispute' suitable for resolution by the ICJ, and that '[t]he International Court of Justice was never intended to resolve issues of collective security and self-defense and is patently unsuited for such a role." (Coleman, 2003)

IV. Dissemination of the Issue of Justiciability

The International Court of Justice however, was of the nature that perceived this problem to be stated in 'Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) as follows: once the Assembly has asked, by adopting a resolution, for an advisory opinion on a legal question, the Court, in determining whether there are any compelling reasons for it to refuse to give such an opinion, will not have regard to the origins or to the political history of the request, or to the distribution of votes in respect of the adopted resolution." (Coleman, 2003)

The view of Mosler is one that "involves clarifying whether the Court is able, through the existing state of the law, to actually resolve the issue." (Coleman, 2003) the writing of Kelson is noted who states:

The legal or political character of the dispute does not depend, as the traditional doctrine seems to assume, on the nature of the dispute, that is to say, on the subject matter to which the dispute refers, but on the nature of the norms to be applied in the settlement of the dispute. A dispute is a legal dispute if it is to be settled by the application of legal norms, that is to say, by the application of existing law." (Coleman, 2003)

The case of 'Tadic' is similar and is one in which the International Court of Justice "considered the distinction regarding political matters or non-justiciable questions as simply a residue of antiquated concepts of national sovereignty." (Coleman, 2003) the ICJ in 'Certain Expenses of the United Nations (Advisory Opinion) gave consideration to a legal dispute that is stated to be that turns on a legal question capable of a legal answer" and specifically questioning whether "highly political disputes [can] ever be resolved by a simple legal decision" (Coleman, 2003) and it is held by some, including Sir Hersch Lauterpacht, former ICJ judge that it can and he states that there is "...there is no fixed limit to the possibilities of judicial settlement. All conflicts in the sphere of international politics can be reduced to contests of a legal nature. The only decisive test of the justiciability of the dispute is the willingness of the disputants to submit the conflict to the arbitrament of law. (Coleman, 2003)

Because of the framework of the legal system, which is one in which states have voluntarily made a choice for administration and resolution of their disputes "the basis of the contentious jurisdiction of the 'ICJ is consensual in nature." (Coleman, 2003) Consent may be granted to abide by ICJ jurisdiction through:

1) Special bilateral agreement between the parties to a dispute (a compromise, stated to be a 'one-off' agreement designed to grant consent to the ICJ for one specific matter);

2) Ratification of a treaty that contains a provision referring disputes to the ICJ. The ICJ is enabled through article 37 of the 'Statue of the ICJ' to "hearing disputes which the Permanent Court of International Justice (PCIJ) was entitled to hear by way of treat; and 3) a unilateral declaration in which a state agrees to accept in advance the ICJ's jurisdiction in a range of matters listed in art 36(2) of the 'Statute of the ICJ'." (Coleman, 2003)

The work of Muller, Raic and Thuranszky (1997) entitled: "The International Court of Justice: Its' Future After Fifty Years" published in the Leiden Journal of International Law relates that in the case of the 'Nuclear Tests' Judge Petren recognized the fact that:

disputes concerning the applications of rules of international law may possess great political importance without thereby losing their inherent character of being legal disputes, suggested that atmospheric tests of nuclear weapons still belong to 'a highly political domain where the international norms of legality or illegality are still at the gestation stage', thus falling outside the purview of the Court's jurisdiction." (Muller, Raic and Thuranszky, 1997)

It was pointed in by Judge Gros, who explained that in this particular case 'a conflict of political interests has been clothed in the form of a legal dispute' and additionally that there is:

certain tendency to submit essentially political conflicts to adjudication in the attempt to open a little door to judicial legislation and if this tendency to submit essentially political conflicts to adjudication in the attempt to open a little door to judicial legislation, and if this tendency were to persist, it would result in the situation, on the international plane of the government by judges, such a notion is so opposed to the realities of the present international community that it would undermine the very foundation of jurisdiction." (Muller, Raic and Thuranszky, 1997)

It is related that in this particular case the Court "...avoided deciding the substantive questions put before it, not for the reason of the political character of the case, but on technical grounds." (Muller, Raic and Thuranszky, 1997) the reluctance of the court to enter into submission of compulsory decision relating to conflicts of high political significance" is not based upon an impossibility of the judge in deciding the case but instead because the Judge's decision would not serve to "...satisfy the grievance out of which such conflicts spring. They hold a conflict to be politically nonjusticiable when they know that satisfaction of their claims can be found only in a change in the legal position protected by the law in force..." (Judge De Visscher, in Muller, Raic and Thuranszky, 1997)

Muller, Raic and Thuranszky (1997) conclude by stating that the International Court of justice has "consistently rejected arguments that the mixture of political and legal issues in a dispute brought before it is an adequate reason to abstain from deciding the legal questions presented, both in…

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