Since its establishment in 1946, the International Court of Justice (ICJ) has played a fundamental role in the prevention and pacific settlement of disputes between States, because of its great authority in the international community as a whole. Seventy-six years in, its heavy workload and ever-growing docket show that the ICJ is as strong, reliable, and necessary as ever. The ICJ, as with any Court, is of course subject to limitations – its lack of enforcement power being an important one – but its durability and success are perhaps even more remarkable in light of the unique limitations of operating as an international organ. Given its predictable and consistent jurisprudence, with remarkable independence from political conflicts, the Court has undoubtedly become the most effective principal organ of the United Nations.
Predictability, Uniformity, and Global Representation
Through the rigorousness, quality, and, above all, the consistency of its judgments, the Court has become quite a predictable tribunal in its respect for precedent. And this is one of its major virtues. The ICJ draws on its jurisprudence, and that of its predecessor the Permanent Court of International Justice, to make consistent interpretations of international law over successive rulings and build an important body of precedent. There are certainly many examples of this, one of them being its consistency regarding the right to consular assistance through the Breard (1988), LaGrand (2001), Avena (2004) and Jadhav (2019) cases. By issuing robustly reasoned decisions that build on one another, the ICJ also contributed to the development of international law. Although judgments are binding only with respect to the parties in a particular case, the Court has established itself as a sort of an international “supreme court,” contributing to the uniformity and harmony of international law.
This has been particularly relevant in the face of the emergence of new courts and tribunals with different specialized jurisdictions. Today, the ICJ coexists with the Permanent Court of Arbitration, the International Criminal Court, the International Tribunal for the Law of the Sea, the regional courts on human rights, the Court of Justice of the European Union, the International Residual Mechanism for Criminal Tribunals, the Residual Mechanism for the Special Tribunal for Lebanon, and the Extraordinary Chambers in the Courts of Cambodia, and with ad hoc mechanisms such as the panels established under the aegis of the World Trade Organizations and others like those under chapter 31 of the United States-Mexico-Canada Agreement.
This proliferation of judicial mechanisms at the beginning of the 21st century gave rise to a discussion in scholarly circles on the possible fragmentation of international law. The fear was that these judicial bodies could have different, or even contradictory, interpretations given that international law lacks the vertical control mechanisms to guarantee uniformity similar to those existing in domestic law, European law, or even in the Inter-American system. Judgments of the ICJ and the International Criminal Tribunal for the former Yugoslavia (ICTY) with different thresholds regarding international crimes further fueled this debate, and in 2006 the International Law Commission embarked on the elaboration of a study to address this matter. As mentioned by the former President of the ICJ Rosalyn Higgins, “these concerns have not proved significant.” Indeed, such fragmentation has not occurred, largely because of the largely undisputed authority of the ICJ. Despite not being designed as a “global constitutional court,” the judgments and orders of the Court are widely respected and cited by other international courts and tribunals. Certainly, its consistency is a key component of this result.
Additionally, the informal dialogue between courts in the international system has played an important role for the benefit of uniformity. Despite happening off the record in different environments, such as the academia, such dialogue reflects a certain degree of coordination between judges of different international tribunals, as well as widespread respect for what has become in practice the preeminent role of the ICJ.
Further evidence of the importance of the ICJ is found in the wide regional participation of States that have resorted to the ICJ to solve their disputes by peaceful means. Even when just over 70 States (representing just over a third of all U.N. members) have accepted its compulsory jurisdiction, the Court’s docket shows that States from all regions of the world and from different legal systems continue to bring cases to the ICJ, including those that have not accepted compulsory jurisdiction but come to the Court invoking treaty dispute settlement clauses or through special agreements. This not only legitimizes the work of the Court; it also offers an opportunity for a truly global approach to the interpretation and implementation of international law. To push this even further, Romania recently put forward a Declaration in support of the Court’s jurisdiction and promoting the acceptance of its compulsory jurisdiction. Over thirty States have already joined this declaration, including Mexico.
During his speech at the initial sitting of the Court, on Apr. 18, 1946, the first President of the General Assembly, Paul-Henri Spaak, said: “I would not venture to assert that the International Court of Justice is the most important organ of the United Nations; but I think I may say that in any case is none more important.”
If the importance of any U.N. organ is assessed by its effectiveness, there is little doubt that the Court occupies a preeminent position. Based on what we can call its success rate, the ICJ has established itself as the most effective of the principal organs of the U.N. Unlike the General Assembly and the Security Council, whose resolutions are often ignored, even despite the binding nature of Security Council decisions, the vast majority of the rulings of the ICJ are implemented by the parties to the dispute and even recognized by third States. This occurs despite the lack of coercive capacity of the Court to ensure compliance and the fact that its rulings can entail far-reaching consequences. But even challenges with enforcement can be handled within the international system; such has been then case with the Avena judgment, which led to Mexico returning to the ICJ in 2008 requesting an interpretation of the judgment and even to the adoption of a resolution by the U.N. General Assembly in 2018 urgently calling for its full and immediate compliance. Despite occasional such challenges, until this day, the cases of non-compliance continue to be exceptional.
For instance, in its judgment on reparations of February 2022 in the case “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)”, the Court fixed the amount for the compensations due from Uganda to the Democratic Republic of Congo (DRC) in a total of US$325,000,000 for the damages of persons, property, and natural resources. The Court ordered that the reparation should be paid in five annual installments of US$65,000,000, starting last September, and Uganda complied with the ruling and made the first payment to the DRC on time.
This is the result of the consolidated trust of the member States in the Court, which, in a virtuous circle, results in an increasing number of countries submitting disputes to its jurisdiction.
In assessing the work of the ICJ, we also have to recognize the enormous relevance of its advisory role. The Court has rendered opinions on relevant issues such as “Legality of the Threat or Use of Nuclear Weapons” in 1996, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” in 2004, or “Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965” in 2019, among others. It is worth noting that the ICJ has never refused to answer a request for an advisory opinion. Furthermore, the Court gives priority to advisory opinions over contentious cases, because, even when these are non-binding, in its capacity as the principal judicial organ of the United Nations, by answering them it provides a service to the entire membership acting through the General Assembly, the Security Council, or any other entity authorized to ask for an advisory opinion. Through this mechanism, the Court also develops jurisprudence that supports political and diplomatic efforts. It is therefore worth considering the possibility, originally proposed by Secretary-General Javier Pérez de Cuellar (Report of the Secretary-General on the work of the Organization, 1990, Pg. 7) and later reiterated by Secretary-General Boutros Boutros-Ghali, for the General Assembly to take a decision to authorize the Secretary-General to request advisory opinions on a permanent basis. This would drastically reinforce his or her role in engaging in the prevention and peaceful solution of conflicts.
The Years Ahead
During the last two decades, States have submitted to the Court cases on areas of international law that were not previously included in its docket, such as human rights and the protection of the environment. As it was noted by the President of the Court, Judge Joan E. Donoghue, the Court has been able to tackle these disputes, including the ones relating to complex technical and scientific matters. In the future, we can expect that the diversification will continue. For instance, current ongoing processes could lead to the adoption of international legally binding agreements on marine plastic pollution, the conservation and sustainable use of the high seas, cybercrime and the prevention of pandemics, areas of the law that could potentially be considered by the Court in future cases.
In any event, in a general state of friendly relations among nations, natural divergence of views and disputes will continue to arise. But let us consider an important factor: almost every international conflict is expressed in legal terms. Even when violating the law, States try to insert their actions within the international legal framework in order to better justify them. Any given political or even military conflict has a legal component that allows the parties to express their grievances in the language of international law (i.e. rights and obligations), which leads us to say that, even in these extreme circumstances, international law matters. Consequently, the relevance of the ICJ will only anchor itself further and further. In other words, as long as the rule of law continues to be the cornerstone of our common project of peaceful coexistence, the Court must continue to be a central institution.
As with any international institution, challenges will remain. As it is evident from the issues raised in this text, there is still much room for improvement in areas such as acceptance of jurisdiction, compliance, enforcement of decisions, and even in addressing diversity and multilingualism. Notwithstanding these challenges, the truth is that during its first 76 years the Court has rendered a major service to the international community, and it has made unique contributions to world peace.
When diplomacy has failed and arms are again resorted to, international law remains the last possible language between States. We should therefore never underestimate the power of a court of law and most particularly the power of the International Court of Justice to accomplish the purposes and principles of the United Nations.