The Changing Process of International Law and the Role of the World Court

Abstract

The U.S. withdrawal of its declaration accepting the compulsory jurisdiction of the International Court of Justice and its withdrawal from the ICJ proceedings in the Nicaragua v. U.S. case caused a crisis of confidence in the Court that continues today. The underlying premise of advocates of ICJ jurisdiction has been that increased participation in ICJ jurisdiction would help resolve disputes and promote respect for the Court and international law. A new declaration by the United States, however, would be a triumph of form over substance. The United States has never effectively accepted the compulsory jurisdiction of the Court and the many proposals to re-accept it are similarly illusory. More importantly, the compulsory jurisdiction system assumes a level of agreement on both the substantive content of customary international law and on the process of norm creation that does not exist in the modern world.

The little used and nearly powerless World Court is not the proper institution to resolve fundamental disagreements about the content of norms and how international law is made. The Court lacks both the authority to do so and the power to impose its decisions. Unlike a domestic supreme court, the World Court is not the final interpreter of international law. Its jurisdictional mandate is limited to disputes voluntarily referred to it either by an ad hoc agreement or by a prior acceptance of jurisdiction. There is, as yet, no common ethos of values, no constitution with vague natural law provisions such as due process, equal protection, or natural justice entrusted to the Court to interpret and impose on all states.

Keywords: international court of justice, international law, compulsory jurisdiction, world court

JEL Classification: K33