Over fifty years ago, the International Court of Justice (I.C.J.) was created to provide advisory opinions for various U.N. entities and to decide certain state-to-state disputes.(1) Advisory opinions, as the phrase suggests, were to be merely advisory;(2) and under Article 59 of the Statute of the I.C.J., even a decision of the Court concerning state-to-state complaints was to have "no binding force except between the parties and in respect of that particular case."(3) As text-writers affirm, the formal preclusion of stare decisis with respect to decisions of the Court "and the relegation of judicial decisions generally to a `subsidiary status' [concerning the sources and evidences of international law(4)] reflect the reluctance of states to accord courts ... a law-making role."(5)
Nonetheless, decisions and advisory opinions of the International Court of Justice have generally been widely received as authoritative explications of international law.(6) Buttressed by cautious attention to the Court's authority and patterns of opinio juris they help to shape, decisions and advisory opinions have acquired a functional significance far beyond what printed constitutive articles might have allowed. Indeed, despite formal abhorrence of stare decisis, the Court, as nearly any other, has dared to cite itself and has often incorporated the reasoning from other cases by reference.(7)
This growth in authority and influence is generally recognized,(8) but the decision of the United States in 1985 to withdraw from the general jurisdictional competence of the Court(9) must partly hamper such developments. Also inhibiting the development are a series of U.S. reservations to human rights treaties. With respect to I.C.J. adjudication of issues arising out of such a treaty, a typical U.S. reservation declares that the U.S. will agree to I.C.J. jurisdiction if, at some future time, the U.S. actually does agree.(10) Such a reservation relegates the role of the Court to an ad hoc adjudicatory process whenever the United States is involved, and it is partly self-defeating for the United States. Given the decision of the Court in the Case of Certain Norwegian Loans,(11) the U.S. reservations may preclude use of the I.C.J. by the United States to redress human rights claims of U.S. nationals against foreign governments. Nevertheless, the United States is also a signatory to over seventy multilateral treaties and thirty bilateral treaties that contain special declarations of acceptance of I.C.J. jurisdiction that do not require additional consent to competence.(12) Thus, the prospect of increased U.S. participation in litigation before the Court remains, even if such participation is likely to be treaty or subject-specific.
Has the general growth of authority and influence of the International Court, despite certain inhibiting practices of the U.S. political branches, had any impact domestically within U.S. judicial processes? Despite the lack of any direct relevance domestically of I.C.J. opinions advising U.N. entities, the rarity of state-to-state disputes appearing directly or obliquely in U.S. courts, a formally proclaimed lack of "binding force" of I.C.J. decisions outside the parties to a dispute, and the embarrassing fact that most U.S. lawyers and judges have never taken a course in international law, have I.C.J. decisions and opinions had any influence within our domestic legal processes? Perhaps surprisingly, ineluctably, they have.
In sharp contrast to the general influence of I.C.J. decisions and advisory opinions within the United States, however, is the severely limited role for I.C.J. judgments recognized by the United States Court of Appeals for the District of Columbia Circuit in Committee of United States Citizens Living in Nicaragua v. Reagan.(13) In its 1988 opinion, the D.C. Circuit nearly slammed the door on any direct enforcement of I.C.J. judgments in U.S. courts. Still, general use of I.C.J. decisions and opinions as authoritative indicia of identifiable international law remains strong.
Plaintiffs had been various private parties seeking, however indirectly, the enforcement of the 1986 decision of the I.C.J. against the United States with respect to U.S. activities in Nicaragua and support of the Contras. Such plaintiffs, the Circuit Court declared, lacked standing concerning the claims alleged and Article 94 of the U.N. Charter, which allows a party to a case "recourse to the Security Council" for enforcement of a judgment,(14) "simply does not confer rights on private individuals."(15) "Because only nations can be parties before the ICJ," the court added, the plaintiff-appellants "are not `parties' within the meaning" of paragraph 2 of Article 94, since it clearly "does not contemplate that individuals having no relationship to the ICJ case should enjoy a private right to enforce the ICJ's decision."(16) The court continued:
Our interpretation of Article 94 is buttressed by a related provision in the Statute of the ICJ, which ... provides that "[t]he decision of the Court has no binding force except between the parties and in respect of th[e] particular case."... Taken together, these Charter clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments. We find in these clauses no intent to vest citizens who reside in a U.N. member nation with authority to enforce an ICJ decision against their own government.(17) Its conclusion was that "In]either individuals nor organizations have a cause of action in an American court to enforce ICJ judgments."(18)
Thus, direct enforcement of a state-to-state judgment by private individuals might seemingly be precluded.(19) Yet, the court did not address the possibility of a suit brought by a foreign state to enforce an I.C.J. judgment, which would present different issues concerning immunity(20) and the enforcement of non-U.S. judgments in U.S. courts.(21) The Court, although stressing that the private plaintiffs before it had "no relationship to the ICJ case," seemed unaware of the fact that in some instances the underlying claims before an international tribunal are ultimately those of private parties who are being represented at the international level by their government. In the latter case, the Supreme Court has already recognized that, even though claims before an international tribunal are technically those of governments, private litigants can have a claim of right under relevant international law and the "award" of the tribunal, and such a right is undoubtedly "susceptible of judicial determination."(22) It seems logical, then, that if an I.C.J. decision is favorable with respect to underlying claims of private parties, the private parties should have an opportunity to utilize the judgment in domestic legal processes.
Far more significant have been the many indirect U.S. judicial uses of I.C.J. decisions and advisory opinions in order to identify and clarify relevant international law. Since the creation of the International Court, forty-two cases in federal courts(23) have applied fifteen I.C.J. decisions or advisory opinions as evidence of international normative content.(24) Within the federal judiciary, such uses have appeared somewhat more frequently in U.S. circuit courts. There have in fact been six relevant uses in the Supreme Court,(25) nineteen uses in the circuit courts,(26) sixteen uses in the district courts, and one citation in the Court of Trade. Utilization of I.C.J. decisions or opinions appears most often in the text of a judicial opinion, and they appear far less frequently merely in a footnote. Further, utilization has most often appeared in main opinions, with use in only four dissenting opinions(27) (or in some ten per cent of the cases). Citations to two I.C.J. decisions or opinions appear in only two federal cases,(28) the rest of the federal cases contain just one citation. With respect to frequencies of use in given decades, most significant uses appear during the 1980's. There were five cases in the 1990's, twenty-four in the 1980's, four in the 1970's, seven in the 1960's, and only two in the 1950's. Thus, trends in frequency of use demonstrate a greater use of I.C.J. decisions and opinions for normative guidance in the last two decades.
The types of I.C.J. decisions and opinions utilized include ten state-to-state cases and five advisory opinions ranging in dates from 1949 to 1988.(29) Most of these did not directly involve actions or responsibilities of the United States, although nearly half did. This is not surprising given the general use of I.C.J. decisions and opinions to identify and clarify international law, especially customary international law, that is relevant to a case or controversy brought before a U.S. court.(30) The types of international norms addressed have been varied, demonstrating a general relevance of I.C.J. decisions and opinions and a lack of special or peculiar patterns of use with respect to subject matter.
A favorite cite in the federal courts is the 1970 Barcelona Traction Light & Power Company case, cited in seven federal cases. Next in apparent attraction is the 1951 Anglo-Norwegian Fisheries case, with citations in six cases, and the Case Concerning United States Diplomatic and Consular Staff in Tehran, with four citations to the decision on the merits and two cites to the Order for Provisional Measures. Two advisory opinions, the Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations and the Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, are tied for fourth with four citations each. The Interhandel Case (Switzerland v. United States) has citations in three federal cases, and the rest of the I.C.J. decisions or opinions have either two or merely one citation.
Barcelona Traction is actually cited with respect to two general clusters of...