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Institutional Illusion: The Contention with ICJ’s Consensual Jurisdiction

Much like the field of international relations theory, international institutions saw a rise after the end of the First World War, which was a reminder of how closely linked our world was. Alongside the League of Nations, another institution known as the Permanent Court of International Justice was established in 1920, to foster international cooperation and settle disputes between nations legally. The subsequent failure of the League of Nations and the formation of the United Nations in 1945 also led to the PCIJ giving way to the International Court of Justice, currently also known as the World Court that has its headquarters in The Hague, Netherlands. The process of appointment of judges is on a rolling basis and has representatives from various countries. On the path to greater international cooperation, an international court seems like a sensible solution to settle international conflicts. However, institutions rarely function as they’re meant to. What we see in the ICJ currently is ineffectiveness in its jurisdiction, a lack of the ability to enforce its decisions, and conflation of its powers with the Security Council. 

Consensual Jurisdiction

The international court has a policy of consensual jurisdiction, under which it only accepts cases where both the defendant and accused agree to present the case to the court. While respecting sovereignty and state discretion, this policy also limits the court’s powers in certain ways. Article 36 (2) of the International Court of Justice Statute states that countries can choose to submit to the compulsory jurisdiction of the court or retain their right to consent to its jurisdiction in special cases. Currently, only 74 of 193 member states of the U.N. have accepted the compulsory jurisdiction of the ICJ. Out of the five permanent states of the Security Council, only the United Kingdom has accepted it. 

The policy of consensual jurisdiction was made keeping in mind the sovereignty of member states. In an international setting, nothing can force states to cooperate or submit to a higher authority, since there isn’t a higher authority. Therefore, the only way to get states to accept the jurisdiction of the court was by not making it compulsory. What this does, however, is provide the states with the power to choose to opt-out of being under the jurisdiction of the court when they see fit. The obligation to respect the court’s jurisdiction is just that – an obligation. An excellent example of this situation is the United States vs Nicaragua case in 1986. Nicaragua filed a case in the International Court of Justice in 1984 against the United States’ involvement in military and paramilitary activities against Nicaragua. Halfway through the court proceedings, the United States, on 18th January 1985 declared that it would not participate in any further proceedings connected to the case. It also withdrew its 1946 acceptance of the Court’s compulsory jurisdiction, stating that it would accept the court’s decision only on a voluntary basis. The court proceeded with the case and subsequently found the United States guilty of violating the sovereignty of Nicaragua under customary international law. It ordered the U.S. to pay reparations, but to no avail, since the U.S. continued to decline to participate in its proceedings. Finally, in 1991, Nicaragua decided that it did not wish to continue the proceedings, without receiving any reparations. This case depicts the ineffective nature of consensual jurisdiction – the fact that the U.S. could decide to walk out of the proceedings with no ramifications means the entire process of international jurisdiction hangs by a delicate thread of consent and obligation. Where international institutions are supposed to balance power structures in the world, they’re merely upholding them, allowing powerful nations to treat international conventions as they please. 

Non-enforceable judgements

The very nature of an international court brings up the question of enforceability. In an international setting, unlike in separate countries, there is no higher authority to ensure the countries follow the law or the word of the court. In a situation where the power balance of nations hangs precariously, the role of an international court feels only perfunctory. 

This can be noticed in the case of the Rohingya Muslims’ genocide by the state of Myanmar. The massively condemned crackdown on Rohingyas was a huge human rights violation, by a state on its own citizens. However, another rule of the ICJ is that only states can file cases at the court – an ordinary citizen that is being persecuted by its own state cannot approach the court to seek justice. This rule looks to put a state’s sovereignty beyond universal human rights. In the case of Myanmar, it was the state of Gambia that registered a case at the ICJ, backed by Canada and the Netherlands. Ruling on this case, the International Court of Justice voted unanimously to order Myanmar to do “everything in its power to end the genocide” in Jan 2020. The government of Myanmar, however, did not feel the need to comply with the ruling of the ICJ alleging that their government’s own commission did not find any evidence of genocide, they did not do anything to stop it. 

Similarly, the United States rejected the ruling by the ICJ in 2018 ordering it to not cut off humanitarian aid to Iran amidst its sanctions. It decided to pull out of the Treaty of 1955 it had signed with Iran  to comply with the ICJ’s orders.  The ICJ, on the other hand, had no means to enforce its decisions. While the rulings themselves are not subject to appeal, the ability to carry out and enforce the rulings do not rest with the Court. This allows countries to regularly flout ICJ rulings without repercussions, making one wonder about the feasibility of the Court’s role as an international organisation meant to ensure peace, security, and resolve disputes. 

No Separation of Powers

The International Court is responsible for passing judgements on cases brought to it. The role of enforcement of these judgements rests with the Security Council, according to Chapter XIV of the United Nations Charter. Without delving deeper into the imbalanced structure of the Security Council itself, it is easy to discern how this could prove to be problematic in many situations. The five permanent members of the Security Council have an undue influence on all decisions taken in the Council, in the form of the veto power. The structure of the International Court is designed so as to not give advantage to one specific country, but by handing the mantle of enforcement over to the Security Council, this no longer holds true. The vested interests of the permanent members of the Security Council, and their veto power, effectively makes them immune to ICJ rulings they do not agree with. We can witness this in the case of Nicaragua vs the U.S, where the Security Council decided to enforce Nicaragua’s appeal to stop the U.S. from using force against it, but the U.S. vetoed the decision. This brazen display of power is characteristic of the United States, but even more disheartening is the inability of international institutions like the ICJ to overcome this power. 

The establishment and continuance of the International Court of Justice in the world forum is definitely a necessity. However, its intentions, however noble, are curbed by its sheer lack of power and influence. Much like other international organizations that are burdened with expectations they cannot hope to fulfil without power, it has become a shell of what it was actually envisioned as. While we can hope for more influence exerted by it in later years, it could only come about with the cooperation of countries themselves. 

Akanksha Mishra is a second-year student of political science and international relations at Ashoka University. 

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