Chaos in the International Legal Order: The ICJ Strikes Again
For those of you who spent International Law asleep, on Facebook or too unnerved by Hitoshi’s relentless bounding around Coombs to pay attention to what he was actually saying, the International Court of Justice (ICJ) is the BNOC of the international legal scene. As the UN’s principal judicial organ, it has two main functions: resolving inter-State legal disputes submitted by its members, and providing advisory opinions on legal questions requested by UN organs and specialised agencies. Any self-respecting first year can tell you that a domestic judge can’t spontaneously override Parliament’s statutory law with their own opinions, no matter how justified. Although crystal clear at the domestic level, international issues tend to be more nebulous. International law is far more political than domestic law, and therefore the separation of powers is not as defined.
One of my lecturers recently attended a public lecture by the ex-ICJ President, Judge Gilbert Guil- laume. In response to a question from a student, he controversially suggested that the ICJ was not concerned with the application of international law, but with the maintenance of international peace. Clearly the material applicattion of international law does not necessarily lead to a peaceful outcome.
With all due respect to Judge Guillaume (love your work), I can’t agree with him on this point. International law is based on a system of facultative jurisdiction; it only functions because States consent to it. For those who need a quick refresher, the international legal equivalents of our statutory law are treaties and customary international law (which requires (a) widespread State practice and (b) opinio juris – States’ subjective belief that they are ‘legally bound’ to act according to that practice). If the ICJ starts to base its decisions on what it considers nec- essary “to maintain peace,” instead of according to custom, it will unleash a tumultuous rollercoaster of unpredictability onto the international legal scene. States will no longer know what they are consenting to when entering into agreements. Take a minute to think about the colossal implications this could have on the future of international relations: States are going to feel pretty reluctant about engaging in international negotiations if they don’t know how their treaties will be interpreted. Beyond this, if we don’t limit the work of international courts to the application of the law, then where do we set the boundaries? What’s to stop them from deciding according to any other cause they deem worthy?
Take the case of the investment arbitration tribunals which interpret the Bilateral Investment Treaties (BITs) concluded between States. In a series of recent judgments, a number of these tribunals decided to throw a spanner in the works and morph from Legal Interpreters of BITs into self-appointed Guardians of Foreign Investors . One could question whether it is really a tribunal’s task to defend a putative investor, who did not agree to the terms of the BIT, and was probably not even known by the States at its conclusion. Shouldn’t BITs be interpreted according to the intentions of the States who are party to it, as per the ordinary canons of interpretation reflected in custom or the 1969 Vienna Convention on the Law of Treaties? The problem with allowing international courts to make decisions based on arbitrary goals, instead of on the law agreed to by States, is that these goals are not defined: nothing can stop the ICJ from promoting the maintenance of peace today, and then the interests of investors tomorrow. There is no certainty in this kind of system, and there can be no consent by the main agents of the international legal order: the ICJ may be the BNOC of international law, but the States are Brian Schmidt. International law only works because they give their consent to its application, and they only do this because they trust that the ICJ will interpret it according to defined legal principles. When courts and tribunals stop doing this, States lose their con dence, and the international legal order stops working.
This all comes down to what we think the role of international courts should be: should it be to favour certain values (such as the right of investors to access arbitration, or the maintenance of world peace)? Or should it be to apply the law? In an era of international cooperation, confronted by unparalleled global issues such as climate change, it is of utmost importance that States feel that they are able to rely on our international legal system. The only way for this to happen is if we leave the peace-maintenance and investor protection to the States – the ICJ should do what it does best and apply the law.