The International Court of Justice

Tell us a little about the International Court of Justice. We've talked about international law, but what is the history of your court? How did it come into being?

Its origins go back to international arbitration. Modern international arbitration, in turn, goes back, well first of all to the Jay Treaties concluded at the end of the Revolutionary War between the United States and Britain, and perhaps even more to the Alabama Claims arbitration, which took place in 1871 as a result of the Civil War and the building, in British ports, of Confederate raiders. Quite a sensitive issue at the time. Britain and the United States agreed to submit it to arbitration, to an international tribunal, judges nominated by each and by the chiefs of state of three other countries. That tribunal came down with an award in favor of the United States, which Britain paid, and that precedent gave a lot of impulse to the idea that a more civilized way of settling disputes between states than quarreling or fighting was to submit them to third-party adjudication.

That led to a vogue of arbitration treaties in which the United States and Britain took the leading part. It was even thought, at the end of the nineteenth century and early into the twentieth, that a way of preventing outbreak of war was to provide for international arbitration. That was an idea particularly dear to the heart of William Jennings Bryan, when he was Secretary of State of the United States, who concluded a whole series of so-called "cooling off" treaties, by which states were obliged to go to arbitration before they could go to war.

Well, obviously, such treaties did not prevent the First World War. But the First World War did arouse great interest in better ways of handling the affairs of mankind than going to war, which resulted, in turn, in the League of Nations covenant. A provision of the covenant provided that the League Council would take steps to set up a permanent Court of International Justice -- not an episodic arbitral tribunal that would be set up each time a dispute came along, but a permanent court which could deal with such international disputes as states submitted to it.

The League was quite an effective body in its first decade, which is largely forgotten now. It energetically seized hold of this prescription and set up a Committee of Jurists. The American member was Elihu Root, who was a great proponent of the World Court, who had been Secretary of State, Secretary of War, an eminent lawyer, and a very shrewd, hard-headed man. That committee drafted a statute which was approved by the League Council and Assembly, but with one very notable change. The Committee of Jurists would have given the court compulsory jurisdiction over international legal disputes between states. The great powers in the League Council, which did not then include the United States because it wasn't participating of its own volition, decided that was in advance of its time. They stripped that provision out of the covenant and substituted the possibility of a state agreeing to the court's compulsory jurisdiction if it wished, in relation to any other state so agreeing. But absent such an agreement, the court didn't have jurisdiction.

Well, that permanent Court of International Justice was created in 1922, it functioned very well until 1938, the Second World War came, clearly that court did not prevent that war either, but it handled some sixty cases in ways which were judged to be sensible and constructive. The parties almost uniformly complied with the judgments even though there was no police force to enforce them. The opinions contributed to the growth of international law, just as in the history of the common law, the courts contributed so significantly to the growth of the law. And so during the Second World War, when thought was given to a new postwar organization, while there was no disposition to maintain the League as such, there was every disposition to maintain the World Court as such. And in fact, our World Court is the immediate heir of that World Court. There was a change of name, there were some modest changes in the statute, but essentially we are the one World Court, with a history dating back to 1922.

How many judges are there on the court?

Fifteen. Each from a different country.

And how are you selected for the court?

We are elected by the General Assembly of the United Nations and the Security Council. A candidate must have a majority in both. The veto does not apply to that electoral process in the Security Council.

In a year's caseload, what sorts of cases are you looking at? Mainly proceedings involving two states in conflict over some issue? Do you have a human rights agenda? Do you see a lot of business law? Give a little feel for your caseload.

I can best illustrate that by describing our docket at the moment. We have both an advisory and a contentious jurisdiction. That is to say, the United Nations and its specialized agencies can ask the court for advisory opinions, opinions that are not binding upon the requesting agency, on legal issues that come before it. We've just, in response to a request of the UN Economic and Social Council, given an advisory opinion as to the applicability of the UN convention on privileges and immunities to the situation of a Romanian national who was, substantially speaking, under house arrest in Romania, but nevertheless was the rapporteur of the UN Commission. And the question in effect was, was he entitled to travel to Geneva, or was he not?

And he couldn't bring the case himself.

He couldn't bring the case, but the UN Economic and Social Council could, and did. We unanimously held that he is covered by the General Convention, and ten days later came the Romanian revolution and that gentleman, then under house arrest, is now described in the press as Vice President of Romania. I don't suggest that one has followed from the other, but it's an interesting illustration of how the court, in some matters, may be on the periphery, at any rate, of consequential affairs. Now, we have seven cases on our docket that are contentious cases, that is, cases brought by one state against another.

There's the case that Nicaragua brought against the United States in 1984. There, the court rendered judgment on the merits in 1986, but it left the question of damages for a subsequent judgment if the parties didn't negotiate a settlement, and they haven't. Then there is an allied case, which Nicaragua brought against Honduras, essentially for harboring the Contras. There, a year ago, the court held that it had jurisdiction, which Nicaragua affirmed and Honduras had challenged. We've had a filing by Nicaragua of its briefs, which are by no means brief. They occupy an area roughly the size of a case of scotch. And, we await the Honduran reply. But it's possible, as a result of the Central American negotiations, that that case will be settled. Indeed, Honduras has attached great importance to its withdrawal and perhaps it will be withdrawn. It remains to be seen.

We have still another Central American case, of a much more traditional kind, this between El Salvador and Honduras, on a boundary dispute between them which, some years ago, erupted into the so-called Soccer War. And, indeed, a large part of the docket of the World Court has always consisted of boundary disputes, either land boundary or maritime boundary. That case is both land and maritime. An interesting aspect of the maritime phase of it is that Nicaragua is now asking to intervene in the case, as a third-party intervener, on the ground that the maritime boundary between El Salvador and Honduras is also its boundary since the three of them share the Gulf of Fonseca, through which this boundary passes.

We have another maritime boundary case between Denmark and Norway over the boundary between eastern Greenland and an island in the North Sea which is under Norwegian sovereignty. We have the airbus case, which Iran has brought against the United States for the shooting down of the airbus in the Persian Gulf. We have a case brought by the island of Nauru, in the South Pacific, against Australia, alleging that the extraction of phosphates by a concessionaire from Nauru, and the failure to restore the lands when the phosphates were scooped out, is the responsibility of Australia because Australia, for most of that period, was administering the island, either as a League of Nations mandatory power or a UN trusteeship power.

We've a case brought by the West African state of Guinea-Bissau against Senegal claiming that an arbitral award rendered between them over their maritime boundary is void for rather technical reasons.

I think that's about the list of our cases, but you can see that it's quite a range of subject matter. It embraces most every continent. If you add a case that we disposed of last summer between the United States and Italy, which was an investment dispute, we touch on virtually every continent of the world these days.

Are most of you decisions implemented to your satisfaction once the decision is rendered?

The court doesn't express whether it's satisfied or not, but most of the decisions of the court are implemented by the parties. The great majority have been. But some important ones have not been, like the Icelandic fisheries case, or the Iranian hostages case, or, to date, the judgment of the court in the case of Nicaragua versus the United States.

Are there cases where the parties have not complied, but then political conditions change and then there is a willingness and, in fact, the implementation occurs many years after? Is that something that has happened or likely to happen?

I don't know of a case that precisely fits that, but the judgment of the court in a particular case will have an impact, politically and legally, even if the losing party does not comply, or immediately comply. It may not have a fully effective impact on the disposition of the case in the immediate sense, but it can certainly effect the political options of the parties and what future courses of action are open to them. And it can effect the development of the law as perceived by states at large, on the particular issues that the court has dealt with.

In the Nicaraguan case, tell us about that judgment and what the United States response was. And then, in turn, what has positively flowed from the decision.

The decision subject matter of the case is quite extraordinary in the history of the court, because typically, disputes involving the ongoing use of force are not brought to the court. Now, in this case, there was first of all a profound dispute over whether the court had jurisdiction, and the court affirmed that by a divided vote. But many observers would say that its decision was one of the most contentious, on jurisdiction, in the court's history. The United States remains convinced, or affirms that it remains convinced, that the court was wrong and that the court lacks jurisdiction, and that by the nature of the case, it's not adjudicable.

Nicaragua was charging the United States with what? Remind us.

Essentially, with aggression. By mining Nicaraguan harbors, by the bombing of Nicaraguan oil stocks, and by, according to Nicaragua, the United States organization financing direction of the Contras, who were carrying out insurrectionary activities on Nicaraguan soil. That was essentially the charge, and essentially, not wholly, but essentially the court, on the merits, having first affirmed its jurisdiction, proceeded to rule on the merits and held in favor of Nicaragua. Though, in that phase of the case, the United States did not participate. And, the court held that Nicaragua is entitled to monetary damages for the breaches of international law of the United States. And, if the parties did not settle the case, reserve that phase for later consideration, which is still to come up, and could come up this year. Nicaragua has filed its memorial on that. The United States has not because it's not participating in that phase of the case.

What was the United States response? Did we refuse to accept the jurisdiction after the verdict was rendered?

The United States has refused to accept the court's judgment and jurisdiction. When Nicaragua went to the Security Council after the judgment on the merits came down, and said to the Council, "The United States is not complying, call upon it to comply," the United States vetoed that resolution. But the grounds it gave essentially was that the court lacked jurisdiction to render it. Officially, the United States has not had a great deal to say about the merits of the decision, though unofficially there's no doubt that it's very critical of it, and has been very critical of the court's processes in reaching it.

What then are the preconditions for successful adjudication? In this particular case, obviously, one of the parties didn't want to accept the judgment. When does this process work best?

The process works best when the parties either do not dispute the jurisdiction or accept the court's judgment on jurisdiction when they do dispute it. There are many cases in the court where the parties conclude an agreement, after the dispute has arisen, to bring it to the court. Then there's no contest over jurisdiction at all. There's some cases where an applicant party will proceed on the basis of a pre-existing title of jurisdiction, pre-existing agreement, where the respondent state won't resist the claim, or not resist it very strongly. And there are some cases where it resists it strongly but nevertheless accepts the court's judgment.

There are a few quite exceptional cases, like the Nicaragua case, the Iranian hostages case, the Icelandic fisheries case, where the respondent party has not accepted the court's judgment on jurisdiction and has not accepted the resultant jurisdiction on the merits. Because you see, under the court's statute, even in the absence of a party, if the court has found that it has jurisdiction, it will proceed on the request of the present party, despite the absence of the other party. Though, when it does that, it's bound to find that the applicant's case is well founded, not only jurisdictionally, but on the merits in fact and in law. We have no default judgments. The fact that the United States was absent did not automatically lead to a judgment in favor of Nicaragua. The court examined, or maintained that it examined, the facts and law favorable to the United States position even though the United States was not there.

What difference did the Cold War make during this period that you've been so active in international law? Did the fact that the superpowers were at each other for so long a period that's now coming to an end, did that make a difference? Did it prevent international law from being all that it might have been during this period that we're talking about?

As a generalization, I think one could say yes. Certainly, it had an impact on the International Court of Justice, because for one thing, the policy of the Soviet Union was openly cool to the court, to put it mildly. It virtually never adhered to the court's jurisdiction in any form, even the most tenuous form. It never agreed to submit a case to the court. While, in the UN days, that is to say, from 1946 onwards, there's been a Soviet judge on the court judging the behavior of other states, the Soviet Union has never permitted itself to be judged by the court. This may well be changing, because two years ago, Secretary-General Gorbachev, in an article that appeared in Pravda, stated that international law should have a more important role in the affairs of states and so should the International Court of Justice, and the five permanent members of the Security Council, the great powers, should take the lead to that end. Since then, conversations have been going forward, between the United States and the Soviet Union in particular, and to some extent between the other permanent members of the Security Council -- France, Britain, and China -- on ways to strengthen the jurisdiction of the court.

Quite apart from that, the Soviet Union has withdrawn its reservations to certain treaties which excluded the court's jurisdiction. There is a large number of treaties, running into the hundreds, many of which are concluded under UN auspices, which provide that disputes arising under those treaties in the future can, at the insistence of a party, be submitted to the court even if the other party does not then agree. The Soviet Union, in adhering to such treaties, always put in a reservation saying, "That provision doesn't apply to us." Well, the Soviet Union has withdrawn that reservation in the case of six such treaties. That doesn't mean that those treaties will produce disputes, which in turn will be submitted by a state disputing with the Soviet Union to the court. That may be or may not be. Nobody can say. But the principle was quite important. So, if indeed the Cold War continues to abate, and the Soviet policy I've just described of the last two years is maintained and even deepened, for that reason it may well be that the court will play more of a role in East-West disputes than it has in the past, where it's played very little role. Mainly, in the past, in the advisory opinions sphere, the UN organ involved has brought a dispute to the court which, in fact, has turned upon an East-West difference of view. There have been several of those.

What about the revolutionary events in Europe in 1989? Can we anticipate any impact on the work of the court? Are you likely to see more boundary disputes, and so on?

It's hard to say. Perhaps. I've heard, but I don't know of any confirmation of what I've heard yet, that one major Eastern European state which never adhered to the court's compulsory jurisdiction in general terms now plans to do so. If in fact it does submit to the so-called "optional clause" of the court's statute, by which a state can opt to give the court generally jurisdiction over any dispute that arises in the future vis-à-vis any other state that has also so agreed, if an Eastern European state does that, that will be a trail-blazing act which might lead other Eastern European states to do it. In that case, one can bring a border dispute with another to the court, or even a dispute with a state that's not Eastern European to the court. But these things are unpredictable, really unpredictable.

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