The ICJ: on its own.

• Author: Gordon, Edward
• Position: International Court of Justice

"[A]n institution, once established, acquires a life of its own, independent of the elements which have given birth to it, and it must develop, not in accordance with the views of those who created it, but in accordance with the requirements of international life." (1)

I am honored and pleased to contribute to this Festschrift for Ved Nanda. It was at Ved's invitation, four decades ago, that I contributed some thoughts to the very first issue of the Denver Journal of International Law and Policy. (2) They concerned the International Court of Justice's abrupt and highly unpopular dismissal of a suit brought by Ethiopia and Liberia challenging the legality of the application of South Africa's apartheid policy in South West Africa, a territory South Africa administered pursuant to a League of Nations Mandate. In what was expected to be the merits phase of the litigation, the Court had reversed, or seemed to reverse, a ruling it had made four years earlier in the suit's preliminary objections phase, this time holding that the Applicants had not established that their legal rights in the administration of the Mandate were sufficient to constitute a cause of action. (3)

The earlier ruling had been obtained by a slim margin: eight to seven. (4) Its reversal came on a seven to seven tie vote, broken, pursuant to the Court's Statute, (5) by the casting (i.e., second) vote of the Court's President, Sir Percy Spender. Judge Spender had been in the minority in the earlier phase, co-authoring a joint dissenting opinion with Judge Sir Gerald Fitzmaurice. The minority in the first phase of the litigation became the majority in the second in large part because two judges who had been in the majority the first time were prevented by illness from participating thereafter, and a third was forced to recuse himself from participating in the second phase because of the partisanship implicit in his having been appointed as ad hoc judge by the Applicants prior to being elected to the Court as a regular member.

Dismissal of the Applicants' claim did not speak to the merits of the case against apartheid, only to the Applicants' right to sue. Other than among lawyers and legal scholars, though, the distinction was too subtle to matter. What mattered was that the World Court had ruled in favor of South Africa and against opponents of apartheid. Not to reach the merits of the dispute meant leaving the status quo unchanged, with the effect magnified, in this instance, by the ability of the respondent state's friends to block effective remedial action by the UN's political organs.

More than the Applicants themselves, and by extension critics of apartheid, it was the Court itself, and by extension international law, that had lost. The ruling came at a critical moment in history. Colonialism was coming to its end. African colonies in particular had gained independence with spectacular speed and decisiveness. The case had been expected to demonstrate to newly independent states, and to their citizens, that the procedures and institutions of traditional international law could be used to promote their distinctive goals in international life. (6) Instead, it left the impression that international law was in cahoots with the past, with the prerogatives of inherited power, and in this instance with white supremacy. That the two judges seen to be principally responsible for the suit's dismissal--Spender and Fitzmaurice--were of Australian and British nationality, respectively, only reinforced this impression. Both the Court and international law were seen to be on the wrong side of history--and humanity.

Some observers wondered if members of the Court had been influenced by adverse reaction to its Certain Expenses opinion, (7) issued the same year as its ruling in the preliminary objections phase of the South West Africa case. The Certain Expenses opinion had raised--or renewed--suspicion in some quarters that the Court was interpreting its position as the UN's "principal judicial organ" (8) to mean that it was under an obligation to cooperate with the UN's political organs, rather than to act as an independent court of law. Could the Court's subsequent dismissal of Ethiopia and Liberia's claim have been influenced by a feeling that it might be better to not decide the case at all than to be seen as deciding it solely to associate the Court with a politically popular cause?

The impression that the Court had become beholden to UN politics was enhanced in 1971, when the UN Security Council gave the Court an opportunity to redeem itself, politically, by requesting from it an advisory opinion on the compatibility of the application of apartheid in South West Africa with international legal obligations. (9) The Council had already expressed its own views on this subject, leaving the Court in the position of either agreeing with the Council's opinion or openly defying it. It agreed, deciding by a vote of thirteen to two that South Africa was under a legal obligation to end its administration of South West Africa, (10) and by a vote of eleven to four that members of the UN were under an obligation to recognize the illegality of South Africa's continuing presence there and the invalidity of acts it undertook on behalf of the territory. (11)

Technically, its opinion in 1971 was not inconsistent with its dismissal of Ethiopia and Liberia's suit five years earlier. The questions on which its opinion was requested did not relate to standing. But if in 1966 the Court appeared to be an agent of the past, then in 1971 it seemed to be kowtowing to UN politics, getting itself back on the right track politically, but at considerable cost to its credibility as an independent decision process. (12)

Much of my article recounted this history. (13) But its main thrust was directed less at the litigation itself than at the legal community's reaction to it--not so much its revulsion against the support the Court seemed to have given apartheid in 1966, or its apparent obeisance to the Security Council in 1971, but rather the assumption that in neither instance had the Court acted independently of all political considerations, as a court of law should do. It was a reaction that seemed to me to assume the existence of relatively stable expectations about courts of law as adjudicative institutions. Specifically, it assumed that courts are homogeneous, sui generis, regardless of differences among them in formal structure or in the patterns of interaction with contending social processes that empirically determine how they direct their institutional energies. I found these assumptions unjustified, both logically and empirically.

A LEGACY OF AMBIGUITY

Here in the United States, attitudes towards the ICJ as an institution have tended to assume that it was created in the image of the U.S. Supreme Court. The Supreme Court was, indeed, the prototype of an international tribunal that the American delegation proposed when the idea of establishing a permanent international court was first discussed at the diplomatic level, in 1907, at the second Hague Peace Conference. (14) In its idealized form, which is how it was presented to the Conference and to the public, the proposed tribunal's function was to have been simply that of applying existing principles of international law to the facts of an international dispute, as it found them, let the chips fall where they may.

Its advocates argued that the Supreme Court model's suitability to the international arena had been demonstrated by its success in deciding disputes between the states of the American union. (15) Though less than sovereign in an international sense, the American states were every bit as protective of their presumed prerogatives as sovereign states were. If the Supreme Court could settle their disputes, why could ones like it not be equally successful in resolving disputes between sovereign nations?

In retrospect it is easy to recognize that the enthusiasm its advocates brought to the proposal may have struck some delegates as parochial, if not downright arrogant. Institutions like the Supreme Court were not invariably found in other national legal systems. Doubters were disinclined in any event to find merit in the misgivings the Americans expressed about the more traditional model of international arbitration, whose principal mission was understood to be that of settling disputes by finding diplomatic solutions, taking law into consideration but not attributing to it a deciding quality. (16) To the Americans, the difference between the two approaches was critical. In his instructions to the American delegation Secretary of State Elihu Root had written:

It has been a very general practice of arbitrators to act, not as judges deciding questions of fact and law upon the record before them under a sense of judicial responsibility, but as negotiators effecting settlement of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to submit them to this kind of diplomatic process. (17)

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