International law as law at the International Court of Justice.

Author:Steinhardt, Ralph G.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This plenary panel was convened at 4:30 p.m. on Friday, March 27, by its moderators, Lucy Reed of Freshfields Bruckhaus Deringer and Ralph Steinhardt of George Washington University Law School, who introduced the panelists: President Hisashi Owada of the International Court of Justice; Judge Thomas Buergenthal of the International Court of Justice; and Judge Bruno Simma of the International Court of Justice. *

THE INTERNATIONAL COURT OF JUSTICE AT SEVERAL CROSSROADS

Lucy Reed is certainly right that our panelists need no introduction before this audience, and I am honored to be here. It is also true that the institution they represent needs no introduction to this audience. But the occasion of this annual meeting does offer a unique--maybe even unprecedented--opportunity for three sitting members of the International Court of Justice (ICJ) to assess the role of the Court in this time of transition and challenge for the international legal order.

I should say that as the keyboards player in a little-lamented erstwhile rock-and-roll band, I understand the danger of being the warm-up act. So let me take exactly three minutes to suggest a few, inter-related reasons that I think the challenge before the Court is so remarkable and so important right now.

May I ask in that connection that we pass a moment in celebration of Wolfgang Friedmann, who almost fifty years ago, observed that the defining characteristic of international law in the twentieth century was its transformation "from an essentially negative code of rules of abstention to positive rules of cooperation." He saw that--in its traditional conception--international law was predominantly a collection of jurisdictional rules of mutual forbearance and abstention, rules which tended in operation to preserve more power for states than they constrained. The power of his insight was that we're not in that particular Kansas anymore: the transition to what he called "positive rules of cooperation" marked a dramatic expansion in the substantive reach of international standards, as though a law that had primarily been about the "fences" separating states had to be re-conceptualized as a matter of "bridges" connecting them.

Of necessity, I think that means that the International Court's docket, which has always had its share of jurisdictional and territorial cases, now increasingly addresses legal questions arising in substantive legal areas that would have been inconceivable to the framers of the ICJ Statute and its predecessor court. Look at the range of topics in the program for the Society's meeting this year: gender and race discrimination, banking, intellectual property, environmental protection, family law, the rights of children. We have incrementally abandoned any prissy or stable notion of exclusive domestic jurisdiction as our predecessors understood that term, and the consequences for the institutional life and power of the Court are profound.

Let us acknowledge, second, a related, more procedural phenomenon, namely the continuing decentralization and balkanization of the international law-making processes: new regional and functional tribunals and norm-entrepreneurs at the international plane but also at the domestic plane, including, for example, the supreme courts and constitutional courts of the various nations, which now routinely enforce and articulate international legal standards in ways that no one could have predicted when the ICJ was established. Is the Court in any sense supreme to these other bodies, first among equals, or is the right relationship--whatever it is--something entirely different, more nuanced, potentially more modest?

Third, I would stress the related proliferation in the sources of international law, again in ways that would have been inconceivable to the generation that drafted what became Article 38 of the Court's statute. Read the recent decisions of the ICJ and recognize that it now routinely articulates international obligations on the basis of authorities that are not listed among the famous four of Article 38, namely treaties, customary international law, general principles, and "as subsidiary means for the determination of rules of law," judicial decisions and the teachings of the most highly qualified publicists of the various nations. Where in that list shall we shoehorn the resolutions and declarations of intergovernmental organizations and their subsidiary agencies? Where in that Article 38 list are the decisions of other international courts and arbitral tribunals on issues of general or specialized international law? Where in that list are the expert submissions of non-governmental organizations on legal issues? The point is not that the work product from these contemporary actors is binding. They obviously aren't that, but the recent decisions of the ICJ couldn't be clearer that international lawyers of every stripe ignore at their peril this evidence of what the law in its contemporary forms requires.

Fourth, and penultimately, the Court operates today in a legal environment in which individual human beings increasingly have access to international forms of dispute settlement, including some transnational courts. Judge Buergenthal and I and many people in this room were honored to have Louie Sohn as our professor, and he routinely pointed out the disconnect between, on one hand, the demise of the exclusive state-centeredness of international law and, on the other hand, Article 35 of the ICJ Statute (which allows only states to appear before the Court). Is it time to alter that arrangement, or is it in fact a strength--call it the institutional equivalent of bio-diversity--that suggests that we should not merely tolerate, but celebrate, the niche rule of access at the gateway to the ICJ?

Finally, this: legal institutions typically take a long time to respond to political change, and the question arises how the Court has changed, or should change, in response to the radical shifts in the international order since the ICJ Statute was drafted. Is it the end of the Cold War that has enabled the Court since 1995 to address a fuller range of international humanitarian law and international criminal law issues than it did in the first forty years of its existence? And how should the Court adjust to other changes, like the rise of multinational corporations with powers that in some cases rival that of some states, or the rise of the "least developed countries" as a political force, or the rise of powerful regional blocs of states with mandates every bit as broad as that of the UN? These are not questions with obvious answers, but they are at least implicitly why we're all in the same room right now.

So, enough of the warm-up act: let's hear from the real rock stars of the evening, and begin with another of my former professors, President Hisashi Owada.

* Lucy Reed's moderator remarks consisted of introducing the panelists.

By Ralph G. Steinhardt, Professor of Law & Arthur Selwyn Miller Research Professor of Law, George Washington University Law School.

THE CHANGING DOCKET OF THE INTERNATIONAL COURT OF JUSTICE AND THE SIGNIFICANCE OF THE CHANGE GOING FORWARD

The docket of the International Court of Justice (ICJ) has always included disputes in such traditional areas of international law as those relating to territorial and maritime delimitation. These classic types of cases continue to come to the Court; in the past eighteen months alone, the Court has dealt with four such cases. However, a wide variety of new types of disputes now also come to the ICJ for resolution. They range from questions involving...

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