Since opinions rendered pursuant to the International Court of Justice’s Referral Jurisdiction would be advisory, wouldn’t states ignore them when they are contrary to their perceived interests?
Not likely. Because there is no world government or world police to enforce international judgments on states, even binding opinions of the Court are not enforceable in the way that domestic court decisions are. But, empirical studies have shown that countries nevertheless have a very good compliance record. They comply because the international community is small (there are only 193 country members of the United Nations), and reputation matters. All countries that want their fellow countries to enter into joint projects, trade, and treaty with them must maintain the trust of the international community that they will not renege on their legal obligations. Failure to obey Referral Jurisdiction judgments would go the heart of such trust.
Presently, the United Nations General Assembly and Security Council can request advisory opinions on interstate disputes. Is Referral Jurisdiction really necessary?
In theory, there is nothing to stop a state now from petitioning the General Assembly or Security Council to request an advisory opinion regarding that state’s legal dispute with another state. In practice, however, because the political barriers to securing Assembly or Council approval of such requests are formidable, the Assembly has only asked the Court to weigh in on interstate disputes on four occasions, and the Council has only made one such request.
By taking the bureaucracy and politics out of the ability of states to secure advisory opinions, the proposed Judicial Commission would provide a regularized process for the Court to issue advisory opinions on issues that would never otherwise come before it.
Why would the General Assembly vote to create Referral Jurisdiction? Wouldn’t its country members resist a jurisdictional reform that could make them the unwitting subject of an adverse judgment?
No country wants to be the subject of an adverse judgment, but countries increasingly recognize that for the international legal system to work properly, tribunals must have the ability to exercise jurisdiction over all cases of potential law-breaking. The dispute resolution bodies of many modern regimes such as the World Trade Organization and the European Court of Justice, for example, do not allow member countries to decline submission to jurisdiction.
In fact, many of the world’s middle and lesser powers even advocated for compulsory jurisdiction as early as the 1920 negotiations over the Court’s predecessor, the Permanent Court of International Justice. They saw their unfettered ability to get a hearing before that court as providing legal protection from the caprice of the politically and militarily powerful. They again advocated for such compulsory jurisdiction during the mid-century negotiations for the present International Court of Justice (ICJ) and would be similarly likely to support a resolution for Referral Jurisdiction today.
There are many specialized tribunals in the international system, such as the dispute-resolution bodies of the World Trade Organization and the International Tribunal for the Law of the Sea. Why can’t these tribunals resolve international disputes over matters for which the ICJ currently does not have jurisdiction?
While specialized tribunals have an important place in the international judicial system, they are no substitute for the unique role played by the ICJ. Except within Europe, the specialized tribunals are largely limited to adjudicating either trade or human rights/criminal matters, and there is little prospect for the creation of courts with alternative mandates. Thus, for the foreseeable future, specialized international tribunals are unlikely to contribute to resolving conflicts in such vital areas of global concern as security and the environment.
Moreover, the ICJ is uniquely positioned to bring coherence to what has developed into an ad hoc system of overlapping tribunals. As the only court of general jurisdiction, universal membership and pedigree, and whose decisions are already regarded as deserving of special deference by specialized tribunals, the ICJ is best positioned to settle the law in the face of divergence among tribunals.