By: Kaitlyn Walker
The University of Georgia’s School of Law chose an esteemed speaker for its 108th John A. Sibley lecture: Judge Joan Donoghue. Her list of accomplishments are as awe-inspiring as extensive: former General Counsel for Freddie Mac, Deputy Legal Adviser to the U.S. State Department, current member judge of the International Court of Justice, and subject of her very own Wikipedia page (an internationally recognized measure of success). Her lecture focused on discussing the various functions of the International Court of Justice (ICJ), and less obviously, to convince her audience of the necessity of the ICJ to resolve international legal disputes. While she was compelling in arguing the necessity of a body to interpret international law, it is an unavoidable reality that the ICJ cannot enforce compliance with its rulings, a reality that ultimately overshadows the successes of the body.
Judge Donoghue began her lecture with a comprehensive overview of the ICJ since its inception in 1945. The body grew out of the Permanent Court of International Justice (PCIJ) that was provided for in the UN Charter of 1922, and was largely regarded as a triumph for the accountability of nations to the international community. In 1945, the PCIJ was dissolved, and the current body was formed in The Hague, Netherlands. Judge Donoghue noted how ornate the Palace of Justice, the permanent seat of the body, is in comparison to the majority of Dutch architecture. She offered a poetic metaphor, saying it was built ornately to “symbolize the dream of conflict resolution.” It seems a lofty dream, akin to Walt Disney building a castle for the imaginary Cinderella at Disney World.
The dream of conflict resolution will remain far-fetched until the court can enforce its rulings. Since its inception, the ICJ has upheld its status as a court of consent, where it has no jurisdiction unless given by the states in question. Currently, the most direct means the ICJ has to prosecute its cases via a “compromissory clause,” or pre-determined agreement by a nation to allow the ICJ jurisdiction if treaty legislation is violated. A compromissory clause is genius in theory, as it allows the ICJ to intervene automatically in the event of treaty violation, but how does the court address violators of international law who do not have this clause?
In her lecture, Judge Donoghue highlighted the crucial role of the ICJ as a propagator of international legal precedent. There are presumably, however, plenty of international conflicts which violate the ICJ’s interpretation of international law, and the body is completely powerless to address these. It seems impossible to claim the ICJ is the “tastemaker” of international precedent if it cannot actively prosecute nations who violate its understanding of justice.
What truly paralyzes the ICJ, however, is its inability to enforce its rulings.
Consider the US Supreme Court. Without its ability to enforce its rulings, it would have no legitimacy, relevance, or purpose. In the wake of say, Brown vs. Board of Education, segregated school systems would likely have said “Thanks for the suggestion, we’ll keep things how they are,” to desegregation. While its an extreme example, it speaks to the purpose of a court. A court should function as the ultimate authority when legal questions arise, and if it fails in this capacity, it simply has no purpose.
Judge Donoghue’s answer to concerns about compliance was twofold. First, states can agree to give the ICJ “compulsory jurisdiction.” Under these terms, a state would give its consent to any recommendations the ICJ suggests in cases involving that state.
While compulsory jurisdiction appears to give the ICJ much needed power, its unlikely that states would willingly relinquish such a substantial portion of their sovereignty. Judge Donoghue argued that states would submit to compulsory jurisdiction to send a perception of well meaning to the international community or if they perceive themselves submitting a case for review in the short term.
When I asked Judge Donoghue if there was a trend towards states adopting compulsory jurisdiction in recent years, she responded that the trend has been largely “static,” with few real gains towards adoption.
Secondly, she offered an example of success without enforced compliance. In October of 2002, the ICJ gave its ruling on the Cameroon vs. Nigeria case. It recommended that Nigeria acknowledge Cameroon’s sovereignty over the disputed territory Bakassi. She said that the Nigerian president was quoted that he “neither accepts nor rejects the ICJ’s influence.” Judge Donohue resolved the story by saying in 2006, Nigeria restored Bakassi to Cameroon, and that this venture was a success because it proved the influence of the ICJ.
The example falls victim to the age-old correlation versus causation fallacy. While I certainly believe the ICJ may have had some influence on Nigeria’s decision, the amount of time before Nigeria took action seems to implicate the likelihood of causation. Further complicating her example is the external momentum in Nigeria during that year. Bakassian leaders pressed the Nigerian government in July of 2006 with a formal secession. The leaders of the two nations came together, and ultimately resolved the dispute in a conference with UN Secretary General Kofi Annan. It is thus, far more likely, that the pressure of the secession movement influenced Nigerian cooperation, rather than the overarching influence of the ICJ.
I am by no means saying the cause for an international court is lost. With the dedication of talented and hard-working lawyers like Ms. Donoghue herself, I certainly believe the world could see the development of a potent international court system. However, until the compliance structure is fundamentally changed, the ICJ is likely to remain a shallow reminder of what could be.