The ICJ In Comparison: Understanding the ICJ’s Limited Influence

Abstract

The International Court of Justice (‘ICJ’) is the oldest international court in operation, with the authority to adjudicate cases raised by any UN member. It has the broadest jurisdiction of any international court since states can designate or seize the ICJ to resolve disputes involving a broad range of inter-state or international matters. The ICJ also has an advisory function, which can be used to clarify questions of international law. The potential for the ICJ to hear cases involving so many countries, treaties and issues means that the relatively paucity of cases adjudicated across the ICJ’s nearly 75 years in operation is noteworthy. The traditional explanation for this paucity is that the ICJ lacks compulsory jurisdiction and that only states can initiate litigation. This article argues instead that the greatest limitation of the ICJ is its inter-state nature. Part II provides an empirical overview that compares the ICJ’s docket to other international courts, and it explains why the dearth of ICJ litigation is consequential. Part III considers the ICJ through the lens of influencing state behaviour. Drawing on a framework developed in The New Terrain of International Law: Courts, Politics, Rights, this part describes three causal pathways through which the ICJ might influence state behavior. It then analyzes the challenges the ICJ faces in using the multilateral and transnational pathways, concluding that the ICJ is best able to influence states by serving as an inter-state arbiter that expresses international law. Since influencing state behavior is not the only way that the ICJ influences international law or international politics, Part IV moves beyond a state-centric focus to consider how ICs build authority vis-a-vis different audiences, including potential future litigants, the larger legal field, and the public. Drawing on a framework developed in the book International Court Authority, this part suggests that the ICJ is able to connect to the legal field of international lawyers, but there are many ways that recalcitrant states can avoid following the ICJ if they so choose. These realities limit ‘national encounters,’ and again underscore how compared to other international courts, the ICJ’s inter-state nature limits its influence. Part V suggests that the ICJ’s limited influence is actually its greatest asset, since its very limits make the ICJ politically palatable. Because of its limits, the ICJ is a rare international court used by democracies and authoritarian countries, and it is the only international legal body used by Islamic law states. I therefore conclude that despite or perhaps because of its limitations, the ICJ is an indispensable international adjudicatory body, meaning if it did not exist today, we would probably want to recreate its limited form anew.