ICJ Stance on Legal Disputes Tied to Political Conflicts

Introduction

This paper examines the International Court of Justice's (ICJ) stance in relation to its avowed non-refusal to resolve legal disputes that are connected to, or form part of, a broader political dispute. The paper focuses on a critical analysis of whether the ICJ has adopted a convincing and consistent approach to the issue of justiciability. The International Court of Justice handles two types of cases: (1) advisory proceedings — on legal questions referred to it by UN organs and agencies; and (2) contentious proceedings — when a dispute is brought before the Court by a unilateral application filed by one state against another state.

The work of Wallace-Bruce (1998), entitled The Settlement of International Disputes: The Contribution of Australia and New Zealand, describes an international dispute as a "disagreement between states, and/or international organizations, or in some limited situations between states and individuals." A dispute between a foreign national and a host state may also become an international dispute under certain conditions. The dispute may be between two or more parties and may raise legal or factual issues, or both; but it must be capable of objective legal determination (Wallace-Bruce, 1998).

Brownlie's work, The Rule of International Affairs: International Law at the Fiftieth Anniversary of the United Nations, notes that jurisdiction is only one objection that may be raised by states with respect to the ICJ's authority. A highly controversial area is that of justiciability — the contention that the Court "should not exercise jurisdiction in respect to 'political' disputes." However, this line of argument tends to fail, provided the tribunal can discern discrete issues of fact and law, in spite of the political background and ramifications of a particular dispute (Brownlie, 1998).

The question of justiciability involves "considerable difficulty" and "certain specific issues have emerged from the experience of international tribunals and counsel" (Brownlie, 1998). Brownlie notes that the subject matter related to justiciability is theoretically extensive. Cases of non-justiciability include the following:

1) The International Court cannot indicate how a judgment should be carried out; 2) there must be a dispute in existence; 3) there must be a legal dispute in existence; 4) it is sometimes argued that certain types of dispute are non-justiciable because the relevant rules or treaty provisions are not susceptible to judicial examination on pragmatic legal grounds; 5) the precise ground of decision in the case concerning the Northern Cameroons (Cameroon v. United Kingdom) was the Court's unwillingness to respond to a request for a declaration as to whether certain alleged violations of the Trusteeship Agreement had occurred; and 6) the existence of alternative dispute settlement machinery — which has priority either by treaty obligation or as a necessary implication from the regular resort by the parties to bilateral machinery — may provide a ground of non-justiciability (Brownlie, 1998).

Overview of the ICJ Process

Allee and Huth (2006), in their work "Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover," published in the American Political Science Review, note that realists maintain "states should be very unlikely to seek international arbitration or adjudication to resolve their disputes, particularly when the dispute involves fundamental security issues." However, the historical record demonstrates that "on several occasions states successfully have resolved many types of disputes through international legal bodies" (Allee and Huth, 2006).

One reason states seek to settle territorial claims through the ICJ is that the judges "who hear the dispute are predetermined, because they were elected for a fixed term at some earlier date," which enhances the fairness of the proceeding. Additionally, justices drawn from a range of countries results in a higher level of perceived fairness. The disputants have some control over who is selected to serve on arbitration panels; however, the prevailing pattern is that an equal number of panelists from both sides serve on the panel, supplemented by additional members drawn from neutral countries. A losing party should therefore find it hard to argue convincingly that the membership of an international panel or court was stacked against its interests (Allee and Huth, 2006). Decisions of the legal bodies "should be viewed as legitimate on procedural grounds" (Allee and Huth, 2006).

Decisions based on a more formal and structured process help ensure that each side has a full and equal opportunity to advance its arguments and evidence. One legal scholar argues that before the ICJ, states "have freedom to introduce, more or less, whatever evidence they may consider appropriate to prove their cases," and that "decisions issued by third-party bodies are likely to be based on a full consideration of both sides' claims" (Allee and Huth, 2006).

On substantive grounds, "the explicit consideration or reliance on legal principles bolsters the legitimacy of decisions reached by third-party arbitration panels and courts," because legal principles provide "a general and common set of prevailing standards by which to assess the merits of rival claims" (Allee and Huth, 2006). Finally, the legitimacy of international legal awards is enhanced by the fact that both states agree in advance to accept the final ruling when they submit the dispute for legal resolution. Incumbent governments can justify compliance with a third-party ruling by invoking their country's general international reputation. To reject such a ruling would invite charges that domestic critics are irresponsible and that their opposition would damage the country's reputation for honoring its international obligations (Allee and Huth, 2006).

Examination of Political Disputes Before the ICJ

Coleman (2003), in "The International Court of Justice and Highly Political Matters," notes that concern has been expressed about the ability of the ICJ to "make a valid contribution to the resolution of highly political matters — those matters where the national interests of nation states are threatened." Traditionally, "domestic or national courts in western legal systems have considered themselves to be inappropriate fora for resolving highly political issues." This judicial reticence is based on the separation of powers theory advanced by the French political theorist Baron de Montesquieu, but also exists for pragmatic reasons. At the international level, concerns about the ICJ's capacity to participate in and contribute to the resolution of highly political issues have frequently been expressed, even by members of the Court itself (Coleman, 2003).

Coleman states that by the very nature of international disputes, and the desire of states to protect their national interests, "all international disputes" become "inevitably political in nature." Variation exists in the degree of political volatility, and "just how political a dispute will be is extremely subjective" (Coleman, 2003). The dependent factors fall within a matrix of diverse influences on national interest, including but not limited to: (1) external economic pressures; (2) domestic needs; and (3) national pride and prestige (Coleman, 2003).

The suitability and capacity of the ICJ has been questioned with regard to its ability to comprehend and consider "highly political matters or 'non-justiciable' issues" (Coleman, 2003). One example given is the weapons embargo imposed by the Security Council during the conflict in Bosnia-Herzegovina. Sir Robert Jennings, a former ICJ judge, argued that if the Court were faced with the question of whether such an embargo denied Yugoslavia the right to self-defense — a legal right under Article 51 of the UN Charter — this would involve the Court passing judgment on UN policy. Such a judgment would be inappropriate, he argued, since the Court, as a court of law, could not understand or attach the same degree of importance to overriding concerns such as containing violence and preventing escalation in the Balkans. He further asserted that in such situations the Court might actually exacerbate a highly political dispute (Coleman, 2003).