DDP, SIDP Multi-Stakeholder Meeting
February 10, 2024Why Are We in the Era of Democratic Fatigue Syndrome?
February 14, 2024By: Thelma Nyarhi
Established as the judicial organ of the United Nations the International Court of Justice (ICJ) aims to promote international peace and security through the settlement of disputes among other functions. It has the broadest jurisdiction of any international court as it is the designated court for settling international matters. It therefore stands as a mechanism available for the peaceful settlement of disputes between United Nations member states. Its influence has surfaced over the years due to the rather increasing number of cases it deals with. This increase shows the vitalization of the activities of the ICJ. Additionally, its vitalization can be seen in the increased cases of political significance that it deals with. Its status as an authoritative voice of international law places it on an esteemed advisory position for questioning and clarifying questions of international law. Founded in 1945 as one of the six principal organs of the United Nations (UN), it serves as a continuation of the League of Nations’ Permanent Court of International Justice (PCIJ) which was in operation between 1922 and 1946. Despite the vitalization of the Court, it still faces controversies and criticism particularly on the idea of impartiality. Like any institution, it is not immune to the influences of power structures.
Peacebuilding has been an essential concept both in theory and practice since the 1990s. It finds itself tangled within the notions of democracy as well as the development of a universal human rights framework. To understand it we ought to trace it through its applications within the international community. The international community as we know it, is a diverse and convoluted area. Complex in its nature it is often faced with clashes amongst its members. Many nation states have in the years experienced violent upheavals. It is often easier to get into a conflict than to get out of one. Some of these clashes spun over cross-border wars over resources and territories thereby endangering elements of security, stability, and other perceived violations of international law. Despite all of this however, the responsibility for upholding peace and order falls upon the ICJ. As an international court ICJ serves to mediate between states and uphold peace through peacebuilding efforts. Despite being an external institution/court, it does not erase the efforts of the local governments in upholding peace within their borders. It is therefore important to understand that peacebuilding and formation are not only assignments led by rational behaviour and applications of knowledge, but are also found to be informed by influences of identity and power. The ICJ as a principal organ has faced both praise and criticism in its rulings.
Tracing the ICJ
“THE primary function of the law is the curtailment of public and private power. The success of any legal system depends on the extent to which it is able to control the abuse of power.” – Muthucumaraswamy Sornarajah
While it is true that the court embodies a link between the present-day reality and the international law, it is also essential to trace its effectiveness since inception. Assessing its effectiveness rests on two aspects, its judicial performance and/or the subjective expectations. Although I offer a ‘broad brush’ discussion, international law has over the years changed and with this comes the change in perception. In recent years there has been a growing resistance against international courts (ICs). What causes this resistance? Despite having to be independent of politics, the ICJ still finds itself operating within rather than outside conflict resolution international strategies. The first Chief Prosecutor of the International Criminal Court, Luis Moreno-Ocampo during his swearing in ceremony referred to the Court as ‘independent and interdependent at the same time: It cannot act alone. It will achieve efficiency only if it works closely with other members of the international community.’ This raises questions and positions the act of law as entrapped in the webs of politics. Essentially this may contribute to the resistance of member states to the ICs rulings. Let’s explore some of the reasons of resistance:
The Separation of Powers theory suggests that the three powers of government that is legislature (law-making), executive (law enforcement) and judiciary (adjudication) should be held by three separate organs. This essentially limits arbitrary excesses of the government. Ideally this means there is limited possibility of unlimited powers and abuse of power. Regarding ICJ however this may mean limited influence on the state in question as they are likely to influence the adjudication processes. The willingness of the state to allow a third-party influence in their dispute resolution would then heavily depend on the political nature of the case. Concerns over the ICJ’s ability to remain impartial and contribute to the peaceful resolute has been brought up before even by a member of the court. In the Nicaragua vs. United States (US) [1986] case, Nicaragua claimed the US had violated the international law by supporting the Contra rebels. The ICJ found the US guilty of mining in the Nicaragua harbours but did not rule on broader allegations thereby leading to accusations of partiality. In a separate opinion Judge Lach noted that despite international disputes raising both legal and political inquiries requiring international law compliance, ‘this does not mean that all disputes arising out of them are suitable for judicial solution.’
In another instance we see the application of Structural bias. This is a system of privilege that creates advantages for specific groups over others. This is essentially prevalent within economic exchanges where laws and policies are put in place to necessitate privilege practices. In a case involving environmental issues, where poorer nations are affected by the actions of wealthier nations, the ICJ has been criticized. Some critics argue that the ICJ has not consistently ensured that the voices of economically disadvantaged countries are adequately heard in disputes related to environmental damage. For example, in the Argentina vs. Uruguay [2006], Argentina filed a case over the construction of two pulp mills on the Uruguay river. Despite making the case of pollution and potential harm to the river’s ecosystem, ICJ ruled that Uruguay had breached its obligations by not providing sufficient information to Argentina during the project planning phase. Additionally, the court also did not order the closure of the mills based on the recognition of Uruguay’s economic right to development.
Recommendations
The above case examples or reasons of perceived resistance do not detract from the overall goal of enabling or upholding peace; however they signal the perforation of the judicial organ. This therefore calls for the enhancing of IC effectiveness. Mohamed Shahabuddeen, a former member of the ICJ, once said, ‘to be sure, judicial process alone cannot banish war’. Depending on the level of assessment, the ICJ has over eight decades been effective to some extent. It has managed to contribute to the development of the international law within the changing sociopolitical climate. Through its streamlined approach and application of rules and procedures it has grown its symbolic significance within the international community. Its principal goal has been to legitimise international law. Although it is the oldest international court in operation, ICJ ought to rework its goals and work alongside communities in order to protect community interests. Although international law often encompasses a procedural nature, as procedure, it shapes and influences community realities. It is with this the Court ought to expand, adjust and tailor their rulings and applications in such a manner that it is inclusive of a multiparty approach that serves to also protect an individual even from a substantive view. This would limit structural biases and protect the rights of the underprivileged.
Thelma Nyarhi is a researcher at the Democracy Development Program (DDP) and writes in her personal capacity.
