Alter: The ICJ In Comparison: Understanding the ICJ’s Limited Influence

Karen J. Alter (Northwestern Univ. - Political Science; Univ. of Copenhagen - iCourts) has posted The ICJ In Comparison: Understanding the ICJ’s Limited Influence (Melbourne Journal of International Law, forthcoming). Here's the abstract:

The ICJ is the oldest international court in operation, with the authority to adjudicate cases raised by any UN member country (51 at its founding, and 193 today), and the ICJ has the broadest jurisdiction of any international court since it can be designated or seized to resolve disputes involving a broad range of inter-state or international agreements. The ICJ also has an advisory role, which could be used to clarify questions about international law in general, or as it pertains to specific issues. The potential for the ICJ to hear cases involving so many countries, treaties and issues means that the relatively paucity of cases adjudicated across the ICJ’s nearly 75 years in operation is noteworthy. The simple explanation for this paucity is that ICJ lacks compulsory jurisdiction and only states can initiate binding litigation. This paper argues instead that the greatest limitation of the ICJ is its inter-state nature. Part I empirically compares the ICJ’s docket to other international courts, explaining why the dearth of ICJ litigation is consequential. Part II describes how many pathways to adjudication and compliance — present in other international adjudicatory systems — have been foreclosed with respect to the ICJ, and how this foreclosure limits the role the ICJ can play in the international legal and political system. Part III explains how the findings of Parts I and II limit the ICJ’s authority vis-à-vis different audiences. Despite these limitations, the ICJ is an indispensable international adjudicatory body, meaning if it did not exist today, we would probably want to recreate it anew.

This essay considers the International Court of Justice (ICJ) in comparison to the most active and influential international courts. My research uses variation in the design, activation and influence of the world’s permanent international courts (IC) to understand when and how international courts influence domestic politics, state behavior, and international relations. A typical legal analysis focuses on formal competences and legal possibilities, examining constitutional texts, the larger organizational architecture, or a small number of rulings. I take an empirical approach informed by social science understandings of when and how international law influences international and domestic policy and politics. I am therefore interested in trends rather than particular cases, what is actually happening rather than what is possible and what happens outside rather than inside judicial chambers and bodies of jurisprudence. As a political scientist, I approach the ICJ as a judicial actor embedded in a larger political context. I see international judges as legal strategists thinking about what the law requires as well as how they can constructively engage compliance constituencies to help realize international law’s objectives.

Part I of this essay examines litigation trends in front of the ICJ, explaining how the ICJ differs in design and activation compared to other international courts. The data suggests a dearth of ICJ litigation. This part also explains why this dearth of litigation matters. The essay then reflects on the ICJ through two different lenses that one might use to assess an international court’s influence, and its legal and political power. Part II considers the ICJ through the lens of influencing state behavior. Part III moves beyond a state-centric focus to consider how ICs build authority vis-à-vis different audiences, including potential future litigants, the larger legal field, and the public.

The larger argument in this short essay is that the ICJ is a unique although not unrivaled body when it comes to inter-state dispute settlement. Yet its ability to help enforce international law, to adjudicate the larger constitution of international law, or to be a review body for United Nations actions is hampered by its inter-state nature. One might say that the ICJ is hobbled by design, since many governments mostly want the ICJ to resolve inter-state disputes when so requested. But for a body often called the “World Court,” one can ask why the preferences of governments should determine the extent of the ICJ’s authority and influence? Indeed, neither ICJ judges, nor the ICJ’s larger audiences are satisfied with this narrow perspective. What does it mean for international law that the ICJ seems to be hampered by design?