MNA Editorial Desk: This paper covers the effectiveness of International Court of Justice (ICJ), the UN system’s highest judicial body. The ICJ settles legal disputes between states, who must agree to abide by the Court’s jurisdiction before their case will be heard. The ICJ also gives advisory opinions on legal questions submitted to it by UN bodies and agencies.
Here, particular emphasis is given to the efficiency of ICJ. I will do my best to be as crisp as possible and to communicate my thoughts about the International Court of Justice and its capability regarding use of power. I intend to cover the law relating to when force may be used, not how it should be used by evaluating the contradictory statements of two eminent scholars Andrew Coleman and Eric A. Posner.
The ICJ’s caseload is light and has declined over the long term relative to the number of states. In his paper titled “Is the International Court of Justice Biased? (2004)” Posner examines evidence of the ICJ’s decline, and analyzes two possible theories for this decline. International institutions are plagued by too many expectations and too little power. One striking example is the International Court of Justice (ICJ). Its malcontents criticize the Court as an ineffective player in achieving international peace and security, largely because of its perceived inability to control state behaviour.
Along with criticisms of a limited mandate, and very few cases related to human rights issues, there have also been concerns that the ICJ judges have shown bias in their court rulings.
In his work, Posner examines whether judges are more likely to vote in favor of the country of nationality than voting impartially, when their state is one of the states in the case. Looking at voting behavior of judges with regards to their home states, Posner found that in 90 percent of those cases, the judges did not rule against their home country.
Posner does point out however that these judges may not be doing this on purpose, and there may be other caveats, such as unbiased voting with two similar states to their own home state, as well as some cases of where judges have voted against their home country.
One of the most frequently cited criticism of the ICJ, argued by Posner, has been what is viewed as the limited mandate of the ICJ, namely, that it is solely a court to hear cases between states, and thus, this is why the ICJ is so different from other human rights judicial bodies, many of which have avenues for non-state actors to file complaints. And this often limits the ability to hear cases on international security or human rights.
For example, only about a third of U.N. members accept compulsory jurisdiction based on Article 36(2) of the statute. Furthermore, even within these third of the UN states those have granted jurisdiction to the ICJ, a number of them “have significantly conditioned their acceptances.
Posner points out, the United States has provided the International Court of Justice with “compulsory jurisdiction” through a declaration; however, this declaration does not include cases on issues of national security.
There have been a number of cases which could be interpreted as illustrating possible examples of International Court of Justice ineffectiveness due to inability to force states to comply with their rulings or opinions.
In fact, there are little enforcement mechanisms that the International Court of Justice has other than levying fines against a country in cases where there was monetary damage. States were not interested in having the ICJ have its powers extended to their domestic courts, and whether these rulings could be used against the state domestically.