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NATIONAL ENCOUNTERS WITH THE INTERNATIONAL COURT OF JUSTICE: INTRODUCTION TO THE SPECIAL ISSUE
Introduction
Hilary Charlesworth and Margaret A Young[1]*
While there is considerable scholarship on the jurisprudence and procedure of the International Court of Justice (‘ICJ’), less attention has been given to the experiences of countries with the Court. This introduction identifies the relevance of national encounters with the ICJ to the general literature and explains how the contributions in this Special Issue illuminate the notion of national encounters. The articles here were first presented at a workshop in May 2020. Many articles focus on Australia, but encounters by Iran, Mauritius, New Zealand, the United Kingdom and countries within the Asia Pacific region are also featured. This introduction considers what a focus on national encounters reveals about the ICJ’s role amid other courts and processes, the settlement of disputes through the Court’s contentious jurisdiction, the significance of the advisory mechanism to countries and the role and participation of other actors, including civil society.
Contents
The Charter of the United Nations (‘UN Charter’) stipulates that all states must ‘settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered’.[1] It lists the means available to parties to any dispute likely to endanger the maintenance of international peace and security — negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other methods of their own choice.[2] The Charter establishes the International Court of Justice (‘ICJ’) as ‘the principal judicial organ of the United Nations’ and provides that the Statute of the International Court of Justice (‘ICJ Statute’) ‘forms an integral part’ of that Charter.[3]
Over its 75-year history, the ICJ has presided over more than 130 disputes in its contentious jurisdiction, involving over 100 countries.[4] It has issued 27 advisory opinions on matters of international law.[5] In the celebrations commemorating the 75th anniversary of the UN Charter in June 2020, ICJ President Abdulqawi Yusuf described the Charter’s provisions relating to the ICJ as ‘present[ing] to a war-stricken world the beacons of justice and law and offer[ing] to participating States the possibility of substituting orderly judicial processes for the vicissitudes of war and the reign of brutal force’.[6]
The postwar enthusiasm for judicial process as a substitute for violence has been realised intermittently. The ICJ has offered judicial assessments of highly charged matters, as well as having resolved more routine international disputes and legal questions.[7] It has also avoided ruling on some controversial issues in an apparent bid to preserve its authority.[8]
There is considerable scholarship on ICJ jurisprudence and procedure,[9] some of it studying particular cases or themes.[10] International relations scholars have also paid attention to the Court, exploring its capacity to influence the behaviour of states.[11] Much of the literature identifies the conundrum that the ICJ is the only court with a global reach unlimited by subject matter[12] yet is constrained by the requirement of state consent to its jurisdiction.[13]
Beyond the technical question of acceptance of the ICJ’s optional jurisdiction under art 36(2) of the ICJ Statute, the factors leading to state consent to, or state rejection of, the Court’s jurisdiction are rarely explored. We know little about the role that recourse to the ICJ plays in national legal and political systems or in regions. Indeed, overall, the substantial literature on the Court has paid little attention to the experiences of countries with the Court.[14]
The academic workshop on which this Special Issue is based, held in May 2020, aimed to fill this gap by examining a range of national and regional encounters with the ICJ. A focus on the way in which the ICJ’s decisions have developed international legal principles could be described as scholarship ‘from above’, in the sense that it largely studies the impact of the ICJ on international law and the relations between states, globally and comparatively assessed. This collection, by contrast, expands the vantage points and studies the Court ‘from the side’ as well as ‘from below’: how do particular countries, regions or groups regard the Court, and how is the Court’s influence perceived in regional and national political and social lives? We hope that this study contributes to an understanding of the potential and limits of the ICJ in resolving disputes and contributing to the evolution of international law. Assessing how the ICJ’s decision-making engages states at the time of their respective encounters is also relevant to perceptions of the Court’s legitimacy.[15] A focus on national encounters gives a sense of the different ideas of justice that lie behind state attitudes to the ICJ. It brings to life the hopes and aspirations of individuals and groups within the relevant states.
The word ‘encounter’ carries a connotation of the unexpected. It suggests a relationship that is episodic rather than ongoing. Another sense of the word is that of struggle or friction. Here, we use the word ‘encounters’ to capture a wide range of interactions between the ICJ and its regional and national publics. These run from direct engagements, such as litigation before the Court, to less direct ones, such as attempts to influence elections to the Court or even to keep matters from the ICJ’s purview. Such encounters have an influence, often unseen, on the development of international law itself.[16] In this collection, encounters with the ICJ are framed by accounts of attitudes within regions and domestic polities about litigation and advisory opinions, perceptions about the Court’s accessibility to other countries and nationals, and assumptions made about the judicial organs vis-à-vis other institutions within the UN.
Juxtaposing civic preoccupations within national polities, including within subnational entities, alongside ICJ pronouncements can be revealing. Assessing national encounters requires delving into the context of matters that are highly charged on the international plane and that may well be contentious nationally, both factually and legally.[17] Disputes on nuclear weapons, environmental protection, transboundary resource access, decolonisation and Antarctic sovereignty emerge from social movements as well as from cabinet or party rooms. A closer attention to national encounters may also clarify distinctions made in the literature between an ‘international community’ (built around common values, according to Hersch Lauterpacht’s vision)[18] and ‘international society’, the latter tending to a looser, less homogenous, grouping of interests.[19]
Analysing the ICJ from the position of the institutions or people who encounter it calls for a range of methodologies. The contributors to this collection have drawn on research into national archives, comparative accounts of other courts, doctrinal analysis and direct professional experience with the Court, including on the bench and as counsel.[20] For some, archives have only recently opened due to the time lag that is common in national rules.[21] Many of the sources go much further than the court record, bringing together evidence of arguments, practices and assumptions otherwise unchronicled. This is particularly pertinent when disputes are settled before reaching the Court (or while they are there),[22] a situation that is often overlooked when attempts to assess the influence of the ICJ rely solely on published judgments.[23]
Using the lens of national encounters supports a fuller appreciation of the role and connection between international and domestic adjudication. While the basis of jurisdiction and the justiciable legal questions will be different, national encounters with the ICJ have often preceded, coincided with or developed subsequently to domestic litigation.[24] Prominent ICJ cases involving Australia, for example, have related directly to incidents that have been litigated in Australian courts.[25] Advisory opinions, too, have both followed[26] and prompted domestic proceedings.[27] With the rise of globally relevant public interest claims in matters such as climate change[28] and COVID-19,[29] questions about the relationship between such domestic litigation and the jurisdiction of the ICJ will become increasingly important.
This Special Issue’s exposition of a variety of national encounters broadens the literature on the ICJ in four ways. First, it offers insight into why states select the ICJ from among the many available international tribunals and dispute resolution processes. Second, the collection sheds light on when, why and how states pursue contentious cases, revealing a range of national expectations and evaluations. Third, the collection presents an account of some states’ approaches to advisory opinions and the function of ICJ opinions in national history-making. Fourth, the collection illuminates aspects of the internal workings of states in encountering the ICJ and the influence of civil society.
Most states use multiple avenues in resolving international disputes. What factors explain recourse to the ICJ? There is little documentation of states’ choices in this respect. In ‘New Zealand and the International Court of Justice’, Sir Kenneth Keith, a former member of the Court, describes New Zealand’s encounters with the ICJ from an insider’s vantage point.[30] New Zealand’s engagement as applicant or intervener in ICJ proceedings is extensive given its small size: its institution of proceedings against France in 1973 concerning atmospheric testing of nuclear weapons, which France proposed to carry out in the South Pacific;[31] its request for the Court to examine France’s proposed action to conduct eight nuclear weapons tests in the South Pacific in 1995;[32] and its intervention in the Whaling in the Antarctic (‘Whaling’) case, the proceedings for which were instituted by Australia in 2010.[33] New Zealand’s participation in advisory opinions has included energetic advocacy in the Nuclear Weapons cases, which was consistent with the domestic enactment of nuclear-free legislation.[34]
Each of New Zealand’s encounters with the ICJ rested on domestic factors specific to the country and the time, as well as the failure of sustained attempts to negotiate bilaterally and multilaterally. Sir Kenneth’s assessment reveals a national political leadership that was increasingly supportive of the Court’s role, a burgeoning antinuclear movement and a regional expectation about the need for environmental protection. The New Zealand response to the 1985 attack by French secret service agents on the Rainbow Warrior vessel provides a contrast. By that time, France had withdrawn its acceptance of the Court’s jurisdiction, and the dispute was resolved by a binding mediation of the Secretary-General of the UN, whose good offices were accepted by France and New Zealand following an appeal by the Netherlands.[35] Trade pressures wrought by France’s superior economic status also featured in this exchange.[36] The case was followed by a second arbitration after France reneged on the agreed detention of the French agents to an island in French Polynesia.[37]
The experienced Australian diplomat, Richard Rowe, offers a detailed account of the diplomatic process preceding Australia’s first formal encounter with the ICJ’s contentious jurisdiction. His article ‘The Diplomatic Dimension: Australia and the Nuclear Tests Case’[38] documents diplomatic responses in Australia to the same subject matter that was animating New Zealand’s steps towards litigation, as described by Sir Kenneth. Rowe describes the extensive Australian efforts between 1963 and 1973 to persuade France to abandon its atmospheric nuclear testing in the Pacific. Australia’s diplomatic representations were persistent and elaborate, deploying increasingly strong expressions of regret, while the French responses were intermittent and terse. The diplomatic campaign failed, but Rowe points out that the lengthy correspondence that the campaign generated went on to form a central part of Australia’s case before the ICJ. Australia’s parallel activity in shoring up multilateral support for a suspension of nuclear testing at the UN was also relied upon in Australia’s application to the Court. It took the election of the Whitlam Labor government in 1972 to move the dispute out of the realm of diplomacy into the ICJ, indicating that the prior decade of Australian diplomacy was not designed to pave the way for litigation. Rowe’s observations nevertheless suggest that, while ICJ litigation may be an option of last resort in international dispute resolution, associated diplomatic exchanges can be a bedrock for legal action. National encounters with the ICJ may often be the final step in a lengthy diplomatic and political journey.
An encounter with the ICJ may not culminate in the filing of a case, however. For example, Emma Nyhan identifies the impact of the Court on a dispute between Japan and Australia over the regulation of pearl fishing during the 1950s when the prospect of resort to the ICJ loomed large over the events. In her article ‘A Latent Encounter with the Court: How Australia and Japan Settled a Pearl Fisheries Dispute’,[39] Nyhan examines the different significance of the Court for Australia and Japan respectively and the distinct reasons why each country contemplated submitting the dispute to the Court at different times. Japan first raised the prospect of referring Australia’s assertion of jurisdiction over pearling outside its territorial waters to the ICJ in 1953 in part to shame Australia and undermine its self-image as a virtuous international citizen. Japan regarded the Court as a neutral arbiter of a bilateral dispute. Australia publicly indicated its willingness to take this route but, as Nyhan documents, privately was keen to avoid an ICJ decision because it believed that Japan had the stronger legal case. At the same time, Australia worked hard to influence the development of international law rules that would justify an extension of its jurisdiction over the continental shelf. The adoption of the Geneva Convention on the Continental Shelf in 1958 substantially strengthened Australia’s legal position and took the wind out of Japan’s sails. The dispute was eventually settled diplomatically.
Shirley Scott presents another case study of states’ ambivalence towards the ICJ in relation to the resolution of disputes. In her article ‘National Encounters with the International Court of Justice: Avoiding Litigating Antarctic Sovereignty’,[40] Scott describes two episodes in which the Court might have been called on to deal with the question of sovereignty over Antarctica but where this was avoided. The first was the United Kingdom’s repeated attempts to take Argentina and Chile to the ICJ between 1947 and 1955 to settle disputes about contending assertions of sovereignty in Antarctica. The second was the Whaling case, initiated by Australia, challenging the legality of Japan’s whaling program in waters off the Australian Antarctic Territory. Scott observes how most of the parties involved in these two episodes were anxious to prevent the Court dealing with the heated issue of Antarctic sovereignty, uncertain how their claims would fare in a judicial forum. She argues that if the UK’s enthusiasm for an ICJ ruling had been taken up, it would have likely precluded the adoption of art IV of The Antarctic Treaty in 1959. The effect of art IV is to avoid ongoing contention about states’ rival territorial claims in Antarctica. The provision freezes all claims and has proved a successful basis for international cooperation in the continent. Scott’s point is that the Treaty has turned out to be a better resolution of the tensions between the UK, Argentina and Chile than a ruling from the ICJ is likely to have been.
The collection presents a range of accounts of how contentious cases come before the ICJ. Bill Campbell, former head of the Office of International Law in the Australian Attorney-General’s Department, provides an insider’s view of some of Australia’s encounters with the ICJ, notably through the Whaling case. In ‘Australia’s Engagement with the International Court of Justice: Practical and Political Factors’,[41] Campbell describes how cases involving Australia reach the Court and how they are supervised within government. The overall picture is one of careful management and deference to the advice of international legal experts. Campbell emphasises the part that public opinion plays in persuading a government to take a case to the ICJ, but it is clear that a committed champion of such action is vital at the political level. Changes in the Australian government, such as occurred during the Whaling case, will also affect attitudes to the litigation. The media is an important conduit, as recognised by governments, particularly upon the publication of judgments at The Hague.[42] Campbell also addresses unsuccessful academic-led campaigns for Australia to challenge in the ICJ the imposition of the death penalty by Singapore and Indonesia on Australian citizens.
States that have made an art 36(2) declaration often insert restrictions on the subject matter of disputes that they will agree to refer to the ICJ. Australia, for example, has lodged declarations of acceptance of ICJ jurisdiction on two occasions to preclude likely litigation.[43] Nyhan outlines the background to the 1954 declaration, which excluded, among other things, disputes concerning the continental shelf precisely to forestall a Japanese application relating to pearl fishing.[44] And, as Campbell notes, Australia amended its declaration in 2002 to prevent cases relating to maritime boundary delimitation from reaching the Court, dismaying both New Zealand and Timor-Leste, with whom it was negotiating maritime boundaries at the time.[45]
Natalie Klein offers a contrasting case study of national attitudes to the ICJ in her article ‘Iran and Its Encounters with the International Court of Justice’.[46] While Iran has been the object of much international opprobrium, it has consistently engaged with the Court, to varying degrees, over the past 70 years. There are currently two cases brought by Iran against the United States on the Court’s docket, relying on a compromissory clause in a bilateral treaty. Analysing the intensely political context of five cases involving Iran, Klein shows that the benefit to Iran of this surprising set of encounters has to be assessed alongside the available options for the pacific settlement of international disputes. While Iran’s lack of compliance with Court decisions underscores the limits of ICJ litigation, Klein suggests that ICJ litigation has provided a forum for Iran to air its grievances with the US and that it has also given opportunities for peaceful interactions between otherwise rancorous adversaries.
Tim Stephens uses a broader geographic lens in his article ‘Environmental Litigation by Asia Pacific States at the International Court of Justice’.[47] Stephens notes that there have been 16 ICJ cases in which Asia Pacific states have been applicants and/or respondents. The popularity of the ICJ as a dispute resolution forum in the Asia Pacific region is remarkable, with both large and small states turning to the Court, particularly on issues relating to the environment and the management of natural resources. Stephens acknowledges the complexity of identifying a regional perspective in the Asia Pacific but argues that geography influences the nature of security, economic and environmental challenges. Stephens traces the ICJ’s popularity to the significance of concern with the environment in the region by states as well as civil society groups. He also detects a regional confidence in the Court as a lawmaking institution. Although Asia Pacific states’ encounters with the Court have sometimes had uncertain outcomes, the Court has also had some notable successes in resolving, or helping to resolve, some longstanding disputes relating to territory, natural resources and the environment.
Political scientist Karen Alter proffers a counterpoint to these accounts of litigation by considering why more states have not used the ICJ in her article ‘The International Court of Justice in Comparison: Understanding the Court’s Limited Influence’.[48] Alter points to the wide potential jurisdiction of the Court, extending to any legal question, and the many treaties that designate the Court as a final authority on disputes between treaty parties. She explains the relative dearth of cases before the ICJ, compared to regional tribunals and General Agreement on Tariffs and Trade/World Trade Organization dispute mechanisms, by the fact that the ICJ only has jurisdiction over disputes between states. This means that neither groups of states nor influential domestic constituencies are likely to join to support litigation or support the enforcement of ICJ decisions. For Alter, the ICJ has narrow authority as an adjudicator of international disputes. At the same time, Alter emphasises the value of the ICJ’s circumscribed role in preserving its credibility with non-democratic governments.
The ICJ’s advisory jurisdiction allows for a distinct type of national encounter with the ICJ. Article 96 of the UN Charter empowers the UN General Assembly and the Security Council to request the ICJ to give an advisory opinion ‘on any legal question’. It also provides that the General Assembly can authorise other UN organs or specialised agencies to request an advisory opinion ‘on legal questions arising within the scope of their activities’. States can, then, encounter the Court indirectly through membership of the General Assembly and voting on advisory opinion requests, and directly by opting to make written and/or oral submissions to the Court in relation to requests for advisory opinions. This collection contains both accounts of specific national encounters and broader reflections on the role of advisory opinions.
Hilary Charlesworth and Margaret Young’s article, ‘Australian Encounters with the Advisory Jurisdiction of the International Court of Justice’,[49] surveys Australian practice on advisory opinion requests to the ICJ. It describes Australia’s interest in and resort to the advisory jurisdiction in the first two decades of the ICJ and contrasts Australia’s later practice of encouraging the Court to exercise its discretion to reject requests for advisory opinions. Australia was ready to become involved in early cases that dealt with interpretation of UN Charter provisions, drawing on its involvement in the drafting of the Charter. It has always been wary of seeking advisory opinions on matters that raised broader issues, such as self-determination. While the ICJ has articulated the purpose of its advisory jurisdiction as providing ‘enlightenment’ to the UN on the legality of a particular course of action, Australia has insisted on a narrower account. It has urged the Court to decline requests if disputes between states might be affected by an advisory opinion — in other words, if a contentious case was somehow wrapped up in the request. Other Australian arguments to persuade the Court to decline the request have been that requests to the Court were framed in such abstract terms that acceding to the request would be inconsistent with its judicial character or that an advisory opinion could potentially undermine the development of international norms, for example in relation to nuclear non-proliferation.[50]
The Australian engagement in the Nuclear Weapons advisory opinion is an intriguing exception to its reticence towards this jurisdiction. In that case, Australia argued that the ICJ should exercise its discretion to decline jurisdiction; it nevertheless articulated a strong view on the substance of the request, urging the Court to rule that customary international law precluded the threat or use of nuclear weapons.
Philippa Webb’s article, ‘The United Kingdom and the Chagos Archipelago Advisory Opinion: Engagement and Resistance’,[51] is another national case study but one focused on a particular case, the ICJ’s most recent advisory opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos’). The UK was the colonial power in Mauritius, and it administered the Chagos Archipelago as a dependency of Mauritius from 1814 to 1965. During discussions over the independence of Mauritius, the UK negotiated to retain power over the Chagos Archipelago in 1966. The UK then promptly agreed to allow the US to establish a military base on the archipelago and oversaw the removal of the Chagossian population. These events have given rise to extensive litigation in both international and national courts. Webb describes the UK’s oscillation between expressions of regret for its treatment of the Chagossians and its firm resistance to the ICJ providing an advisory opinion on the issues on the basis that this was in essence a bilateral dispute between the UK and Mauritius and that, in any event, the legal questions at stake had already been determined in other legal fora. She argues that this marks a move from UK idealism vis-à-vis the ICJ to an attitude of realism. Webb observes, however, that, despite its resistance to the exercise of the jurisdiction in this case, by urging the Court to decline the General Assembly’s request, the UK engaged fully in the proceedings. This contrasts with Australia’s position, simply challenging the Court’s jurisdiction, in the same case.
Douglas Guilfoyle takes a different approach to national encounters with the Chagos advisory opinion in ‘The Chagos Archipelago before International Tribunals: Strategic Litigation and the Production of Historical Knowledge’,[52] focusing on the function of judicial decisions in history-making. He draws attention to the post-independence controversies within Mauritius over the 1966 agreement to allow the UK to retain sovereignty over the Chagos Islands. Guilfoyle analyses Mauritius’ arrangement of an encounter with the ICJ through the UN General Assembly’s 2017 request for an advisory opinion and highlights the value of the legal encounter in reinforcing the official Mauritian version of the history of its relationship to the Chagos Archipelago. For the UK, on the other hand, the encounter has emphasised the UK’s disturbing treatment of the Chagossians and has, in Guilfoyle’s view, given new life to their claims of historic injustice.
Contributions to this collection offer insights into the internal workings of states encountering the ICJ. One aspect is the influence of civil society on states. Sir Kenneth’s article notes the role of civil society in encouraging the New Zealand government to take the Nuclear Tests case to the Court and, particularly medical groups, in supporting a request for an advisory opinion by the World Health Assembly. Henry Burmester’s article, ‘Civil Society and the Instigation of International Court Litigation: The Australian Experience’,[53] is a sustained account of civil society groups in Australia. Burmester investigates how civil society groups encouraged the Australian government to resort to the ICJ in the two cases in which Australia has been applicant — Nuclear Tests and Whaling.[54] Burmester chronicles the careful strategies of civil society groups to persuade opposition political parties (the Australian Labor Party (‘ALP’) in both contexts) to commit to ICJ litigation ahead of national elections. In his view, this was a critical element, and the commitment was based on strong public opinion on both nuclear testing and whaling. Unions were prominent in the case of nuclear testing, but Burmester notes that the ALP governments of three Australian states had actually launched the idea of international proceedings.[55] In the case of Japanese whaling, a range of animal welfare and conservation groups, as well as academics, strongly supported legal action, as Campbell’s article also attests. The litigation in each case was duly launched after the ALP was elected into office: months after the election in Nuclear Tests but two and a half years later in the case of Whaling.
Burmester urges civil society groups to be more cautious when campaigning for international litigation. He considers that civil society groups in Australia have tended to emphasise the theoretical possibility of ICJ litigation without attending to the evidential basis for a case or the long-term consequences of litigation. In Burmester’s view, civil society has left it to government to do the hard yards of collection and analysis of evidence and to weigh the possibility that a respondent state might withdraw acceptance of ICJ jurisdiction as a result. He also points to the uneasy nature of these government–civil society alliances and the tensions that can emerge once a case is launched, when governments assert complete control over the legal proceedings.[56] Nevertheless, with respect to the controversial issues of French nuclear testing in the Pacific and Japanese whaling in the Antarctic, civil society groups in Australia have been integral to productive encounters with the ICJ.
The Chagossian people are an influential, if somewhat hidden, presence in the Chagos advisory opinion, as both Webb and Guilfoyle’s articles document. Chagossians have used the British court system to bring actions against the UK government, challenging the legality of their removal from the archipelago and claiming a right to return and resettlement. Although they had no direct access to the ICJ, the Chagossians were also at the heart of Mauritius’ General Assembly campaign for an advisory opinion. During the ICJ proceedings, Mauritius showed the Court a video recording of Marie Liseby Elysé, a Chagossian woman who had been forced to leave her birthplace, detailing her anguish and desire to return. This prompted the UK to express its remorse over the removal during the oral proceedings, but, as Webb notes, the regret was confined to the events of the 1960s and 1970s and did not extend to the continuing dispossession of the Chagossians.
Victor Kattan explores a little-studied aspect of state encounters with the ICJ, examining the UK’s attitude to elections to the Court in the first two decades of the Court’s existence. Drawing on archival correspondence, in ‘The United Kingdom’s Views on Elections to the International Court of Justice during the Cold War’,[57] Kattan describes UK practice in the nomination and election of candidates. He observes the tensions over nominations between members of the UK national group and bureaucrats. Kattan’s focus is the elections of Pakistan’s Sir Mohammed Zafrulla Khan (in 1954 and 1963) and Australia’s Sir Percy Spender in 1957. These elections are a microcosm of the larger challenges to the Court’s membership as campaigns for the election of judges from former African and Asian colonies gathered momentum in the 1950s and 1960s. Kattan investigates the debates within the UK bureaucracy over reconciling the ICJ Statute’s requirements both that judges be ‘independent ... [and] persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law’ (art 2) and that ICJ membership reflect ‘the main forms of civilization and ... the principal legal systems of the world’ (art 9). Kattan concludes that British officials used a political lens in assessing candidacies for election to the ICJ, informed by a ‘Cold War mindset’, which distrusted candidates from countries with any Soviet connection. The UK government gave less priority to qualities of judicial independence than to a judicial presence that was perceived to be likeminded and sympathetic to UK interests.
This Special Issue illustrates that encounters with the ICJ play many roles in national polities. Recourse to the ICJ can be a last resort in resolving longstanding diplomatic disputes, a structured mode of engagement with political adversaries, a way of inscribing a certain version of history in national (and international) imaginations or a response to internal pressures from subnational governments or civil society groups. The very existence of the Court can be influential in resolving international disputes, even it is not formally seized of a case. States may wish to avoid a legal determination of their claims against another state and will instead negotiate a resolution of an interstate dispute ‘in the shadow’ of the Court.[58] The Court can also be a valuable forum to discuss contentious issues of justice relating to colonial legacies. The Court’s perceived neutrality is the basis of its authority, but states may work hard behind the scenes to ensure that the Court’s membership is sympathetic to their interests. National encounters with the ICJ are influential not only for international law but also for social and political developments at many levels of governance.
* Melbourne Laureate Professor and Professor, Melbourne Law School, University of Melbourne. The authors acknowledge support for the Melbourne Law School workshop on National Encounters with the International Court of Justice from the Australian Research Council, Discovery Project, R[1]The Potential and Limits of International Adjudication’ DP180101318 (Professor Hilary Charlesworth and Professor Margaret Young) and thank the participants for their contributions and fruitful exchanges. We thank Bill Campbell, Sir Kenneth Keith and the Editors of the Melbourne Journal of International Law (Betty Choi, Jake Fava and Sophie Ward) for their comments on an earlier draft of this article.
[1] Charter of the United Nations art 2(3).
[2] Ibid art 33.
[3] Ibid art 92.
[4] For the general list of ICJ contentious cases by country, see ‘Contentious Cases Organized by State’, International Court of Justice (Web Page) <https://www.icj-cij.org/en/cases-by-country>, archived at <https://perma.cc/3WC9-5Y5L>. See also Margaret A Young, Emma Nyhan and Hilary Charlesworth, ‘Studying Country-Specific Engagements with the International Court of Justice’ (2019) 10(4) Journal of International Dispute Settlement 582. For usage rates by decade, see Rotem Giladi and Yuval Shany, ‘The International Court of Justice’ in Yuval Shany, Assessing the Effectiveness of International Courts (Oxford University Press, 2014) 161, 175–6.
[5] ‘Advisory Proceedings’, International Court of Justice (Web Page) <https://www.icj-cij.org/en/advisory-proceedings>, archived at <https://perma.cc/854F-2WMF>.
[6] Judge Abdulqawi A Yusuf (Speech, 26 June 2020) [7] <https://www.icj-cij.org/public/files/press-releases/0/000-20200626-STA-01-00-EN.pdf>, archived at <https://perma.cc/5MKS-Z22K>.
[7] See Giladi and Shany (n 4) 185. The authors quote an ICJ judge who refers to the ICJ as the ‘custodian of international legality’: at 167.
[8] See, eg, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case (Provisional Measures) [1995] ICJ Rep 288 (‘Request for an Examination’). See also South West Africa (Ethiopia v South Africa) (Second Phase) [1966] ICJ Rep 6; Obligations concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833. See Ingo Venzke, ‘The International Court of Justice during the Battle for International Law (1955–1975): Colonial Imprints and Possibilities for Change’ in Jochen von Bernstorff and Philipp Dann (eds), The Battle for International Law: South–North Perspectives on the Decolonization Era (Oxford University Press, 2019) 235.
[9] See, eg, Daphné Richemond-Barak, Rosenne’s the World Court: What It Is and How It Works (Brill, 7th rev ed, 2021); Philippe Couvreur, The International Court of Justice and the Effectiveness of International Law (Brill, 2017); Hugh Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press, 2013) vols 1–2; Robert Kolb, The International Court of Justice (Hart Publishing, 2013); Christian J Tams and James Sloan (eds), The Development of International Law by the International Court of Justice (Oxford University Press, 2013); Andreas Zimmerman and Christian J Tams (eds), The Statute of the International Court of Justice: A Commentary (Oxford University Press, 3rd ed, 2019).
[10] See, eg, Malgosia Fitzmaurice and Dai Tamada (eds), Whaling in the Antarctic: Significance and Implications of the ICJ Judgment (Brill Nijhoff, 2016); Karine Bannelier, Theodore Christakis and Sarah Heathcote (eds), The ICJ and the Evolution of International Law: The Enduring Impact of the Corfu Channel Case (Routledge, 2012); Laurence Boisson de Chazournes and Philippe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1999).
[11] See, eg, Ian Hurd, How to Do Things with International Law (Princeton University Press, 2017).
[12] Judicial bodies active at the global level include the ICJ, the dispute settlement system of the World Trade Organization, the International Tribunal for the Law of the Sea and the International Criminal Court. There are, in addition, arbitral bodies with a global reach, such as ad hoc tribunals serviced by the Permanent Court of Arbitration.
[13] Statute of the International Court of Justice art 36. Seventy-four countries have submitted declarations that ‘recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court’ according to the procedure set out in art 36(2) of the ICJ Statute: see ‘Declarations Recognizing the Jurisdiction of the Court as Compulsory’, International Court of Justice (Web Page) <https://www.icj-cij.org/en/declarations>, archived at <https://perma.cc/P9HQ-8DBR>. Of the five Security Council permanent members, Russia has not submitted a declaration recognising as compulsory the jurisdiction of the ICJ, while China, France and the US have withdrawn their consent to the compulsory jurisdiction in 1972, 1974 and 1985 respectively. The UK amended its declaration on 22 February 2017, following its preliminary objections to the case brought by Marshall Islands, inter alia to exclude from the Court’s jurisdiction any cases related to nuclear weapons and/or nuclear disarmament unless the other four states party to the Treaty on the Non-Proliferation of Nuclear Weapons with nuclear weapons have also consented to ICJ jurisdiction and are party to the proceedings: ‘Declarations Recognizing as Compulsory the Jurisdiction of the International Court of Justice under Article 36, Paragraph 2, of the Statute of the Court: United Kingdom of Great Britain and Northern Ireland’, United Nations Treaty Collection (Web Page) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-4&chapter=1&clang=_en>, archived at <https://perma.cc/GNK6-G3KJ>. See also the statement made by Sir Alan Duncan: Sir Alan Duncan, ‘Amendments to the UK’s Optional Clause Declaration to the International Court of Justice’ (Statement, House of Commons, 23 February 2017).
[14] Young, Nyhan and Charlesworth (n 4) 583.
[15] See Nienke Grossman, ‘Solomonic Judgments and the Legitimacy of the International Court of Justice’ in Nienke Grossman et al (eds), Legitimacy and International Courts (Cambridge University Press, 2018) 43, 60. For a brief analysis of how confidence in the ICJ within domestic polities correlates with perceptions about domestic institutions, see Erik Voeten, ‘Public Opinion and the Legitimacy of International Courts’ (2013) 14(2) Theoretical Inquiries in Law 411, 433–5.
[16] Cesare PR Romano, ‘Litigating International Law Disputes: Where to?’ in Natalie Klein (ed), Litigating International Law Disputes: Weighing the Balance (Cambridge University Press, 2014) 460, 470 (emphasis in original): ‘[A]s the body of international adjudicative precedents mushrooms, the question of who litigates, and, even more importantly, the question of who does not litigate, raises important normative issues’.
[17] See, eg, Cecily Rose, ‘The Dispute Settlement Function of the International Court of Justice in Croatia v Serbia’ in Hélène Ruiz Fabri et al (eds), International Judicial Legitimacy: New Voices and Approaches (Nomos, 2020) 129.
[18] H Lauterpacht, The Function of Law in the International Community (Clarendon Press, 1933).
[19] Vaughan Lowe, ‘The Function of Litigation in International Society’ (2012) 61(1) International and Comparatively Law Quarterly 209.
[20] For a discussion on epistemology and methodology in the study of international legal practices, see Jeffrey L Dunoff and Mark A Pollack, ‘International Judicial Practices: Opening the “Black Box” of International Courts’ (2018) 40(1) Michigan Journal of International Law 47, 86–9.
[21] As described in Hilary Charlesworth and Margaret A Young, ‘Australian Encounters with the Advisory Jurisdiction of the International Court of Justice’ [2021] MelbJlIntLaw 10; (2021) 21(3) Melbourne Journal of International Law 698.
[22] Disputes that were resolved prior to the merits being adjudicated include Passage through the Great Belt (Finland v Denmark) (Order) [1992] ICJ Rep 348; Aerial Herbicide Spraying (Ecuador v Colombia) (Order) [2013] ICJ Rep 278. See also Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 253; Nuclear Tests (New Zealand v France) (Judgment) [1974] ICJ Rep 457; Iain Scobbie, ‘Discontinuance in the International Court: The Enigma of the Nuclear Tests Cases’ (1992) 41(4) International and Comparative Law Quarterly 808.
[23] For an example that relies on cases, see Eric A Posner and Miguel FP de Figueiredo, ‘Is the International Court of Justice Biased?’ (2005) 34(2) Journal of Legal Studies 599. For a contrasting approach, which reviews advisory opinion requests that failed to come before the Court, see Michla Pomerance, The Advisory Function of the International Court in the League and UN Eras (Johns Hopkins University Press, 1973) 221–76.
[24] See, for example, how Jurisdictional Immunities of the State (Germany v Italy) (Judgment) [2012] ICJ Rep 99 came after national court litigation in both Italy and Greece. See also Ingrid Wuerth, ‘International Law in Domestic Courts and the Jurisdictional Immunities of the State Case’ [2012] MelbJlIntLaw 27; (2012) 13(2) Melbourne Journal of International Law 819.
[25] Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183 and Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 83, heard by the High Court of Australia and the Full Court of the Federal Court respectively, related to the same subject matter, being the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation between the Indonesian Province of East Timor and Northern Australia (Timor Gap Treaty), which was entered into under terms disputed by the East Timorese and Portugal: see East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90. Humane Society International v Kyodo Senpaku Kaisha Ltd [2008] FCA 3 considered domestic issues of Japanese whaling in Australian Antarctic waters, while Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226 related to the terms of the International Convention for the Regulation of Whaling. See also Christopher Ward, ‘National and International Litigation: Partners or Competitors?’ in Natalie Klein (ed), Litigating International Disputes: Weighing the Balance (Cambridge University Press, 2014) 42.
[26] See Philippa Webb’s article describing litigation in British courts that preceded the ICJ’s advisory opinion: Philippa Webb, ‘The United Kingdom and the Chagos Archipelago Advisory Opinion: Engagement and Resistance’ [2021] MelbJlIntLaw 11; (2021) 21(3) Melbourne Journal of International Law 726, 742–4.
[27] See, eg, Lindon v Commonwealth [No 2] [1996] HCA 14; (1996) 70 ALJR 541, striking out a statement of claim that sought declarations ‘designed to parallel, in the setting of municipal law and in the highest Australian court, the questions submitted for Advisory Opinions to the International Court of Justice’, in what was to be the World Health Organization and UN General Assembly Nuclear Weapons opinions: Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep 66; Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.
[28] See, eg, Laura Schuijers and Margaret A Young, ‘Climate Change Litigation in Australia: Law and Practice in the Sunburnt Country’ in Ivano Alogna, Christine Bakker and Jean-Pierre Gauci (eds), Climate Change Litigation: Global Perspectives (Brill, 2021). See also Tim Stephens, ‘Environmental Litigation by Asia Pacific States at the International Court of Justice’ [2021] MelbJlIntLaw 8; (2021) 21(3) Melbourne Journal of International Law 653.
[29] Sara C Bronin, ‘What the Pandemic Can Teach Climate Attorneys’ (2020) 72 Stanford Law Review Online 155, 158. See also Sandrine De Herdt, ‘A Reference to the ICJ for an Advisory Opinion over COVID-19 Pandemic’, EJIL: Talk! (Blog Post, 20 May 2020) <https://www.ejiltalk.org/a-reference-to-the-icj-for-an-advisory-opinion-over-covid-19-pandemic/>, archived at <https://perma.cc/6TLJ-SSYE>; Curtis A Bradley and Laurence R Helfer, ‘Introduction to “The International Legal Order and the Global Pandemic”’ (2020) 114(4) American Journal of International Law 571.
[30] Kenneth Keith, ‘New Zealand and the International Court of Justice’ [2021] MelbJlIntLaw 2; (2021) 21(3) Melbourne Journal of International Law 516.
[31] ‘Application Instituting Proceedings Submitted by the Government of New Zealand’, Nuclear Tests (New Zealand v France) [1973] II ICJ Pleadings 3.
[32] Request for an Examination (n 8).
[33] ‘Declaration of Intervention of the Government of New Zealand’, Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (International Court of Justice, General List No 148, 20 November 2012).
[34] New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987 (NZ).
[35] Differences between New Zealand and France Arising from the Rainbow Warrior Affair (New Zealand v France) (Ruling) (1986) 19 RIAA 199.
[36] New Zealand pointed to threats of trade restrictions on New Zealand products coming into the European Community, which France denied: see ibid 214.
[37] Difference between New Zealand and France concerning the Interpretation or Application of Two Agreements, Concluded on 9 July 1986 between the Two States and Which Related to the Problems Arising from the Rainbow Warrior Affair (New Zealand v France) (Judgment) (1990) 20 RIAA 215.
[38] Richard Rowe, ‘The Diplomatic Dimension: Australia and the Nuclear Tests Case’ [2021] MelbJlIntLaw 3; (2021) 21(3) Melbourne Journal of International Law 536.
[39] Emma Nyhan, ‘A Latent Encounter with the Court: How Australia and Japan Settled a Pearl Fisheries Dispute’ [2021] MelbJlIntLaw 4; (2021) 21(3) Melbourne Journal of International Law 553.
[40] Shirley V Scott, ‘National Encounters with the International Court of Justice: Avoiding Litigating Antarctic Sovereignty’ [2021] MelbJlIntLaw 5; (2021) 21(3) Melbourne Journal of International Law 578.
[41] Bill Campbell, ‘Australia’s Engagement with the International Court of Justice: Practical and Political Factors’ [2021] MelbJlIntLaw 6; (2021) 21(3) Melbourne Journal of International Law 596.
[42] Campbell compares the engagement with media by the Australian government in the Whaling case (where Australia was applicant) and Questions Relating to the Seizure and Detention of Certain Documents and Data (where Australia was respondent): ibid 615–6. See also Karen Alter on the ICJ’s Military and Paramilitary Activities in and against Nicaruaga ruling being front page news in the United States: Karen Alter, ‘The International Court of Justice in Comparison: Understanding the Court’s Limited Influence’ [2021] MelbJlIntLaw 9; (2021) 21(3) Melbourne Journal of International Law 676, 692.
[43] Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice, under Article 36, Paragraph 2, of the Statute of the International Court of Justice, 2175 UNTS 493 (registered 21 March 2002); Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice, in Conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, 186 UNTS 77 (registered 6 February 1954). Australia also amended its declaration in 1975 to accept ICJ jurisdiction without qualification except in relation to disputes ‘in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement’: Declaration Recognizing as Compulsory the Jurisdiction of the International Court of Justice, in Conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, 961 UNTS 183 (registered 17 March 1975).
[45] Campbell (n 41) 602–3. Campbell observes that Australia considers that maritime boundaries are best settled through negotiation: at 603.
[46] Natalie Klein, ‘Iran and Its Encounters with the International Court of Justice’ [2021] MelbJlIntLaw 7; (2021) 21(3) Melbourne Journal of International Law 620.
[49] Charlesworth and Young (n 21).
[50] See, eg, ‘Written Statement of the Government of Australia’, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) (International Court of Justice, General List No 93, 13 September 1993).
[52] Douglas Guilfoyle, ‘The Chagos Archipelago before International Tribunals: Strategic Litigation and the Production of Historical Knowledge’ [2021] MelbJlIntLaw 12; (2021) 21(3) Melbourne Journal of International Law 749.
[53] Henry Burmester, ‘Civil Society and the Instigation of International Court Litigation: The Australian Experience’ [2021] MelbJlIntLaw 13; (2021) 21(3) Melbourne Journal of International Law 772.
[54] This evidence adds further nuance to Alter’s discussion about the ICJ’s connection with nationally based legal interlocuters: see Alter (n 42). It also attests to the systematising influence of non-governmental organisations in international law: see Margaret A Young, ‘Fragmentation, Regime Interaction and Sovereignty’ in Christine Chinkin and Freya Baetens (eds), Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford (Cambridge University Press, 2015) 71, 71–2, 75–6.
[55] This evidence of engagement of subnational entities with the ICJ augments a broader reflection on statehood, as found, for example, in Gleider I Hernández, ‘Federated Entities in International Law: Disaggregating the Federal State?’ in Duncan French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge University Press, 2013) 491.
[56] See also Burmester (n 53) 784–7.
[57] Victor Kattan, ‘The United Kingdom’s Views on Elections to the International Court of Justice during the Cold War’ [2021] MelbJlIntLaw 14; (2021) 21(3) Melbourne Journal of International Law 789.
[58] As in domestic litigation: see, eg, Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88(5) Yale Law Journal 950.
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