Sunday, August 29, 2010

The Case for the Compulsory Jurisdiction of the ICJ

Why do States comply with international law? In contrast with national law, in international law there is no State more sovereign than the other, so there is not a recognized superior governmental authority. Furthermore, there is no international legislature, which is why many have said that international law lacks the legitimacy which endorsement by a democratic legislature would give.

As the year 2010 comes to its last months, it is appropriate to scrutinize where is the international community in regards to the fulfillment of its obligations under international law, and more specifically, what can be done to preserve the rule of law across the globe

There is no doubt that since international law involves a different and sometimes unrecognizable body of law, many States still do not give too much weight to the performance of its international obligations. However, for their development, States must begin to realize that international law rests on similar principles and pursues similar ends than national law; which is no other than the observance of the rule of law.

Accordingly, in their Millennium Declaration the member states of the United Nations resolved to “strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties”. 

Therefore, it is not precisely a new idea that a true development of the rule of law in the international sphere would entail a greater acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ). Nowadays, while 65 of the 192 member states of the United Nations have chosen to accept the compulsory jurisdiction of the ICJ, a majority do not, and it is a lamentable fact that, of the five permanent members of the Security Council, only one, the United Kingdom, does so, Russia and China never having done so and France and the United States having withdrawn earlier acceptances. 

The justification of the dissimilar regime in relation to different Member States of the United Nations is simple. The ICJ has jurisdiction in contentious cases between states, on the basis of the consent of the parties. This principle, reflected in Article 36 of the Statute of the Court, rests on international practice in the settlement of disputes and is a corollary of the sovereign equality of states. For its part, the compulsory jurisdiction of the ICJ is enshrined in Article 36(2) of the Statute, which establishes: 
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: 
a. - the interpretation of a treaty; 
b. - any question of international law; 
c. – the existence of any fact which, if established, would constitute a breach of an international obligation; 
d. - the nature or extent of the reparation to be made for the breach of an international obligation. 
The recognition of the compulsory jurisdiction of the ICJ by all the member states of the United Nations is undoubtedly, a move which must be taken if the rule of law is to become truly successful in international law. However, former President of the ICJ, Dame Rosalyn Higgins has said that the suggestion that the rule of law requires, in this day and age, a routine and obligatory recourse to the Court in matters connected to the UN Charter and related issues is still a step too far. Nevertheless, she also recognized that the absence of a compulsory resort to the Court falls short of a recognizable rule of law model. 

International law is not imposed on states by external legislature, and a powerful reason of why states do sometimes comply with international law is that they make rules to suit themselves. However, the most potent of all reasons for compliance by states with international law is the sheer necessity of doing so. The point was well made by Douglas Hurd in 1997
Nation states are incompetent. Not one of them, not even the United States as the single remaining super-power, can adequately provide for the needs that its citizens now articulate. The extent of that incompetence has become sharply clearer during this century. The inadequacy of national governments to provide security, prosperity or a decent environment has brought into being a huge array of international rules, conferences and institutions; the only answer to the puzzle of the immortal but incompetent nation state is effective cooperation between those states for all the purposes that lie beyond the reach of any one of them. 
Therefore, having in mind that the main purpose of the United Nations is to maintain international peace and security, there is no better way to elucidate the disagreements between the nations than to resort to an impartial institution like the International Court of Justice. The principle of justice must be uphold by the international community, and the compulsory jurisdiction of the Court will lead to the peaceful adjustment and settlement of international disputes or situations which might lead to a breach of peace. There is no wisdom other than to seek injustice and disparity, if the different Member States cannot accept than an impartial body will only apply the law that they previously accepted to comply with. The time has come for States to understand that without true will of complying with their obligations and seeking justice, there is no possible future.

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