Political dispute resolution by the World Court, with reference to United States courts.

• Author: Nafziger, James A.R.

Nobody seems to argue that the political branches of the United States government should refrain from taking any action that might embarrass the courts in their administration of justice. Yet the political question doctrine that counsels judicial abstention in international cases routinely embarrasses our constitutional system in the quixotic interest of keeping its powers meticulously separated.(1) Perhaps we should take a cue from the Dalai Lama: "Always keep in mind," he pronounced on arriving in Taiwan recently, "that any activities of mine should not bring any embarrassment to anybody."(2) If only a simple disclaimer of this sort would relieve the courts of their fear of doing something embarrassing to the political branches of the government! After all, how is it possible to embarrass the very branches of government that produced the Helms-Burton legislation?(3)

The political question doctrine ultimately relies on principles of democracy. Those principles provide a justification, though a deceptively simple one, for courts to shun rulings on international issues that might complicate the essentially political conduct of foreign relations. That is the theory. In reality, however, the doctrine may be understood to be a technique of judicial management; a means of weeding out controversial cases. The courts understandably seek refuge in the separation of powers as they face more complicated disputes with fewer resources. Better yet, why not a divorce of powers rather than a mere separation? The problem, of course, is that the political branches are uncertain whether they want to gain full custody over transnational dispute resolution, leaving the courts with only occasional visiting rights.

A related issue involves the choice of international law as a rule of decision. Although the Supreme Court has confirmed that "[i]nternational law is part of our law,"(4) debate continues on the meaning of that statement. For example, one recent argument for what its authors candidly call "political branch hegemony"(5) would require specific Congressional authorization for the courts to apply customary international law as federal law. The philosophical premise for such a surprising interpretation of the Constitution seems to be that legislative intervention generally enhances democratic values. Let the people speak! Public choice theory has, however, challenged pat assumptions about a close identification between the legislative process and the fulfillment of democratic values.(6) Technically, the political hegemony argument is based on an expansive reading of the Erie doctrine(7) and a narrow reading of other Supreme Court law, rather than on separation-of-powers doctrine. Its correlation with political question etiquette is nevertheless evident.

1. THE POLITICAL COMPLEXION OF "LEGAL DISPUTES" BEFORE THE WORLD COURT

   1. A Functional Approach

      The World Court's(8) sharply contrasting model of adjudication recognizes that virtually every claim before it is bound to have political implications.(9) Indeed, the Court is at its best when it is resolving political disputes. For example, the first phase of the Lockerbie(10) case confirmed the Court's customary presumption of justiciability despite the highly charged political context in which the case arose. A legal dispute, as that term appears in Article 36(3) of the United Nations Charter,(11) is therefore defined not by the nature of the dispute, but by the process for best resolving particular issues. The political-legal distinction, to the extent it exists at all, is therefore functional, not philosophical or hierarchical.(12) The Court has therefore refrained from characterizing a particular dispute as essentially "political" or "legal." It acknowledges that to do so might be a preface to inaction.

      The United Nations Charter itself contemplates a concurrent jurisdiction between an active Court and the so-called political organs.(13) The Charter thereby reinforces a functional distinction between the respective roles of the Court and the political organs in pursuing a common purpose of peacefully settling disputes.(14) The Security Council serves as a source of decisions and norms, as well as the chosen instrument for enforcement of the Court's decisions.(15) The question is really how best to allocate the powers of coordinate organs to avoid further tensions resulting from a dispute. As Wilfred Jenks observed in the very year of the Sabbatino(16) decision:

      [T]here will now be a wide measure of agreement (1) that there are no technical limitations to the possibility of determining judicially every international controversy but (2) that this is not the heart of the matter, the essence of the problem being that a judicial determination on the basis of the existing law may aggravate rather than eliminate the difficulty.(17) Despite this risk, the Court's review of political action by the Security Council is likely to enlarge as the Council produces more legal norms for the Court to interpret and apply.

      The Court's expanded docket since the end of the Cold War may or may not reflect a durable trend in the peaceful settlement of disputes. Similar surges in the Court's agenda immediately following the two World Wars should make us cautious about reading too much into the trend. Of particular significance is the greater use of the Court to resolve or help resolve serious political disputes. Although it is difficult to be optimistic about the Court's centrality in international dispute resolution, it does seem that states are more inclined today to view adjudication as a worthwhile step in the political process and to conceptualize important issues in legal terms.(18)

      The end of the Cold War eliminated a powerful incentive for states to pursue adjudication cynically as a tool to shame each other. Today their motivation is more likely to be either an honest commitment to the judicial settlement of a dispute or a use of adjudication to leverage a settlement by alternative dispute resolution. The Great Belt,(19) Nauru(20) and Persian Gulf Aerial Incident(21) cases illustrate the leveraging strategy.

   2. The Nuclear Weapons Case

      Nuclear Weapons(22) fits the paradigm of political dispute resolution by the Court. The Court confirmed that "[t]he fact that this question also has political aspects, as, in the nature of things, is the, case with so many questions which arise in international life, does not suffice to deprive it of its character as a `legal question'...."(23) Several states, arguing against the Court's competence to hear the dispute, had claimed that neither the World Health Organization ("WHO") nor the General Assembly were authorized to request an advisory opinion because neither was itself competent to address the legality of nuclear weapons in the first instance and both institutions had been politically motivated in making their requests. Although the Court denied the WHO request, it observed in both cases that "[t]he political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion."(24) Other recent decisions to the same effect include Aegean Sea Continental Shelf,(25) Hostages,(26) Nicaragua,(27) and Lockerbie.(28)

      The Court's advisory opinion in Nuclear Weapons is...