Abstract
AbstractAs the principal judicial organ of the United Nations, the International Court of Justice (ICJ) has an ambitious mandate. However, due to its institutional design, the ICJ depends in large part on whether the states allow it to play this role, and their resistance can prove particularly damaging for the ICJ in this regard. Against this background, the article argues that resort to judicial avoidance techniques may be a pragmatic way for the ICJ to adapt to this reality, and that it seems likely that the ICJ has been relying on such techniques on several occasions. With reference to the ICJ’s case law, the article highlights different avoidance techniques at the ICJ’s disposal, proposes a categorization based on their effects, and evaluates the potential and risks each category holds for the ICJ. Accordingly, the article distinguishes between merits-avoidance techniques, issue-avoidance techniques, and resort to deferential standards of review. It demonstrates that relying on merits-avoidance techniques and issue-avoidance techniques is counterproductive and sometimes even dangerous for the ICJ. In contrast, resort to deferential standards of review allows the ICJ to reconcile its ambitious legal mandate with the political realities, and accordingly holds the greatest potential for the ICJ.
Highlights
The International Court of Justice (ICJ) is caught in an inherent tension between its ambitious judicial mandate and its dependency on states
The article argues that resort to judicial avoidance techniques may be a pragmatic way for the ICJ to adapt to this reality, and that it seems likely that the ICJ has been relying on such techniques on several occasions
In an ‘ideal’ world, resort to avoidance techniques would not be necessary for the ICJ – it would be respected and its decisions implemented on the basis of its status in the United Nations (UN) system
Summary
The ICJ is caught in an inherent tension between its ambitious judicial mandate and its dependency on states. While the United Nations (UN) Charter makes the ICJ the UN’s principal judicial organ, the Court depends on whether states allow it to play this role. Against this background, this article focuses on one way for the Court to gain state support and help resolve this tension: by resort to judicial avoidance techniques. Issue-avoidance techniques allow the Court to proceed to the merits, but to dodge certain issues during the review that follows While these two categories of avoidance techniques allow the Court to sidestep certain elements of a case, I argue that they are not well suited to achieving the ultimate goal of resolving the tension in which the Court finds itself. It is submitted that this technique in particular merits further attention by the Court
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