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Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction

57 Pages Posted: 15 Nov 2011 Last revised: 17 Nov 2013

Andrew L. Strauss

Widener University

Date Written: November 14, 2011

Abstract

The International Court of Justice — the global system’s oldest and most venerable tribunal — has failed to meet its full potential. This is in large measure due to the requirement that the Court may only assert jurisdiction over states with their consent, which is often withheld. To help correct for this failure, this article proposes that the Court be given a referral jurisdiction. Referral jurisdiction would empower the Court to issue advisory opinions on interstate disputes without the requirement of state consent. Standing in the way of nonconsent-based jurisdiction, however, is the problem of the Gordian Knot: The world’s most powerful countries who are best able to lead or block expansion of the Court’s jurisdiction have historically perceived their advantage to lie more with political muscle than expanded judicial process. Today, their power to block is manifest in the ability of each of the permanent five members of the United Nations Security Council to veto amendments to the treaty creating the Court. This article, however, suggests that there is a solution to the Gordian Knot problem. It proposes a legal strategy that would allow the United Nations General Assembly to establish referral jurisdiction without a treaty amendment. Having cut the Gordian Knot, this article goes on to make the case for referral jurisdiction. Specifically, it argues that (1) the proposal for referral jurisdiction is legal under the Charter of the United Nations, the Statute of the International Court of Justice, and other general principles of international law; (2) referral jurisdiction would further compliance with international law; and (3) its implementation would institutionally strengthen the Court. This article concludes by suggesting that the rise of many newly industrializing countries that may be willing to spearhead jurisdictional expansion portends new possibilities for cutting the Gordian Knot and, in the process, unleashing a promising era of global rule of law reform.

Keywords: International Court of Justice, ICJ, jurisdiction, international law, international organizations, referral jurisdiction, United Nations

JEL Classification: K33, N40

Suggested Citation

Strauss, Andrew L., Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction (November 14, 2011). Cornell International Law Journal, Vol. 44, No. 3, 2011; Widener Law School Legal Studies Research Paper No. 11-43. Available at SSRN: https://ssrn.com/abstract=1959565

Andrew L. Strauss (Contact Author)

Widener University ( email )

3800 Vartan Way
PO Box 69381
Harrisburg, PA 17106-9381
United States

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