The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause

Abstract

The refusal of the United States to consider itself bound by the recent decision in the Case Concerning Military and Paramilitary Activities in and against Nicaragua, coupled with the earlier termination of its adherence to Article 36(2) of the Statute of the International Court of Justice, has sparked a small storm of controversy and concern. Part of this concern involves how the United States, presumably a law-abiding and law-respecting nation, could possibly bring itself to snub the International Court of Justice and, by extension, the ideal of international law. Another part of this concern involves the likely consequences of the United States move on the vitality of the Court as the focal institution of a slowly evolving system of international law. A less obvious concern, but arguably one of paramount importance, calls into question the wisdom of insisting that the ICJ retain its optional compulsory jurisdiction. It is this less obvious concern that we propose to discuss here.

Two Courts Two Roads: Domestic Rule of Law and Legitimacy of International Courts

“…States with the lowest level of military expenditures in the sample were almost six times more likely to commit to the Court. These findings provide further support for the existing literature on international adjudication that demonstrates that strong states are less likely to resort to binding methods of peaceful resolution, especially international courts (Scott and Carr ; Mitchell and Powell ). States who torture their citizens are less likely to ratify the Rome Statute.…”

“…Unfortunately, I am unable to include the Islamic law dummy in the models, since belonging to the Islamic legal tradition perfectly predicts failure (not accepting the ICJ jurisdiction). All three models suggest that strong states are less likely to submit to the jurisdictional powers of the ICJ, supporting existing research (Scott and Carr ; Mitchell and Powell ). The four remaining control variables, including democracy, although correctly signed, are statistically insignificant.…”

The International Court of Justice and the World's Three Legal Systems

“…“In theory, one may expect a particular reluctance to accept compulsory jurisdiction by powerful nations, or at least nations which see themselves as likely to be in a superior bargaining position in the kinds of disputes that they think might arise” (Bilder 1998, 249). Less powerful nations, on the other hand, see impartial adjudication more as a protection than a risk; it allows these states to feel “legally equal to the world's powers” (Scott and Carr 1987, 57). We therefore expect more powerful states to be less likely to accept the ICJ's compulsory jurisdiction.…”

“…Pessimistic views of the ICJ emphasize its underutilization, flawed internal organization, declining influence over time, and external factors, such as power disparities, that undermine its authority (Elkind 1984; Eyffinger 1996; Goldsmith and Posner 2005; Janis 1987; McWhinney 1991; Oduntan 1999; Posner 2004; Scott and Carr 1987; Scott and Csajko 1988). More optimistic views emphasize the ICJ's role in pushing parties towards conflict resolution even if the disputants never go to court (Bilder 1998; McAdams 2005).…”

The Creation and Expansion of the International Criminal Court: A Legal Explanation

“…regional free trade agreements), international courts are distinctive because they can mitigate power asymmetries in interstate bargaining. Weaker countries have more to gain from a system of effective international courts than major powers because international courts help to level the playing field in world politics (Scott and Carr 1987;Bilder 1998) Empirical evidence supports this conjecture; as states' capabilities increase, they are significantly more likely to renege on optional clause declarations to the World Court, with the United States' departure from the ICJ in 1986 being one of the most prominent examples of this behavior (Powell and Mitchell 2007).…”