Reforming the ICJ

What Is Happening

The International Court of Justice (ICJ) was established in 1945 through the Charter of the United Nations.¹ As the “principal judicial organ” of the UN, it is mandated to adjudicate disputes between states, and to give advisory opinions regarding the appropriate course of action on international legal questions.² The Court’s function was informed by the circumstances under which it was established, as was the case with the UN as a whole, in the wake of two world wars. This context showed the international community, through an unprecedented contemporary scale, how wars could be waged not just against other polities, but against a people, motivated by unduly prejudice and deep disregard for human rights, dignity, and integrity. The establishment of the ICJ was a response to ensure the existence of a governance structure for the peaceful settlement of interstate conflicts going forward, and to create an accountability mechanism for mass-scale human rights violations. These aspirations are codified in the preamble of the Charter, which states, “We the peoples of the United Nations [are] determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”³ 

Despite the theoretical and universal ideals that informed its creation, the ICJ’s efficacy and legitimacy have repeatedly been called into question in recent decades. Doubts about the Court have been raised regarding its objectivity, its efficiency, and most notably, its legitimacy, mainly due to the lack of an adequate and potent enforcement mechanism for the Court’s decisions. A more recent case at the ICJ has resurfaced these doubts. In November 2019, the Gambia started proceedings against Myanmar. The case is based on allegations that Myanmar’s military, the Tatmadaw, has committed genocidal acts against the Rohingya population.⁴ The case details that in a military campaign that began five years ago, the Tatmadaw burned villages and carried out grave violence that killed men, women, and children in Rakhine state, leading nearly 750,000 people to flee to Bangladesh.⁵ In the filings, the Gambia argued that “[the Tatmadaw] and other Myanmar security forces began widespread and systematic ‘clearance operations,’ the term that Myanmar itself uses against the Rohingya group.”⁶

Myanmar has repeatedly objected to the ICJ case, claiming that the Gambia “lacks standing to bring the case,” and that there was no dispute between the two countries.⁷ In July 2022, the ICJ dismissed Myanmar’s objections, thus allowing the case to go forward. The Court concluded that any signatory to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, also known as the Genocide Convention, would be a valid claimant in the case against Myanmar.⁸ That said, it is unclear whether Myanmar will continue to participate in the proceedings, or comply with the eventual decision. The country has decried the “unsubstantiated condemnation of Myanmar on the matter,” rejecting the claims that a genocide took place in Rakhine.⁹ Likewise, in a press release titled “There Was No Genocide in Rakhine,” Myanmar’s Ministry of Foreign Affairs stated that it is “important for Myanmar that the Court reaches a factually correct decision on the merits of the case,” implying that the findings so far, which point to the systematic killing of the Rohingya, are incorrect.¹⁰

While UN Secretary-General Antonio Guterres said that he “trusts that Myanmar will comply with the Court’s order,”¹¹ the country has thus far shown no indication that it will do so. The only recourse for a defendant state that does not abide by the ICJ’s verdict is if the claimant seeks enforcement through the UN Security Council.¹² That said, decisions at the Security Council are subject to the veto power of the permanent members, the United States (US), the United Kingdom (UK), Russia, France, and China,¹³ meaning that the enforcement of ICJ verdicts is ultimately a political decision, not a judicial one. If Myanmar chooses not to comply with the ICJ’s decision and the Gambia refers the case to the Security Council, either China or Russia is expected to veto any enforcement measures against the country.¹⁴ 

This case illustrates the dilemmas surrounding the ICJ’s ability to deliver on its mandate, and raises questions about its role and legitimacy as a “World Court,” whose decisions are binding in theory, but not in practice. These tensions challenge not only the Court’s work itself, but also the parameters of global legal governance. As the principal judicial branch of the UN, the Court should not merely be the de jure reinforcer of existing international law and norms. Instead, it should develop the legal canon further by creating precedents and expanding the bounds for interpretation. Considering these implications, both practitioners and scholars have called for reform of the Court’s structure, decision-making mechanism, and especially, its enforcement capabilities. 

Why Is It Happening?

There are several reasons that have led to the Court’s legal and bureaucratic paralysis. To begin with, the ICJ has garnered widespread frustration regarding the pace of its decision-making. In its nearly 80 years in existence, the Court has adjudicated a total of 183 cases, corresponding to approximately two cases per year.¹⁵ For comparison, the European Court of Human Rights, which began its operations much later in 1959, has delivered more than 10,000 verdicts in its history.¹⁶ As the cases referred to the ICJ tend to be massive in scope and detail, it is unsurprising that the Court is only able to consider a limited number of cases each year. However, when evaluated in conjunction with the pace at which these cases resolve, which usually spans a number of years, the ICJ’s efficacy is questionable. 

One example is the Democratic Republic of Congo’s (DRC) case against Uganda, which began in 1999. The DRC claimed that Uganda had committed acts of armed aggression which were “in flagrant violation of the United Nations Charter and of the Charter of the Organization of African Unity.”¹⁷ It also demanded reparations from Uganda “for acts of intentional destruction and looting,” and the restitution of national property and resources, referring to Ugandan military groups’ invasion of eastern DRC, a region incredibly rich in minerals such as gold, diamonds, uranium, and copper, among others.¹⁸ The ICJ issued its first judgment on the matter in 2005. The Court found that the military intervention by Uganda, undertaken without consent from the DRC, was “of such magnitude and duration” that it constituted “a grave violation” of the prohibition of the use of force, codified in Article 2, Paragraph 4, of the UN Charter.¹⁹ For the next decade, Uganda filed counter-claims, which were rejected by the Court. In 2015, the DRC asked the Court to determine reparations after bilateral negotiations between the two countries proved unfruitful.²⁰ In 2020, the ICJ appointed a council of independent experts to deliver an opinion on the matter. Eventually, in February 2022, the Court awarded the DRC a total of $325 million in reparations, due to the damages Uganda caused to people, property, and natural resources in the country.²¹ From the day the case was filed to the day the ICJ delivered a final judgment, the case took more than 23 years to conclude.

A glance at the Court’s statistics shows that a majority of cases regularly last between three to five years, if not more.²² This means that the ICJ is only able to address a limited number of matters every year, and interstate disputes are not resolved in a timely manner. Considering that the founding principle of the ICJ is the maintenance of international peace and security, its slow litigation process stands to jeopardize adequate and prompt reconciliation of disputes. 

Relatedly, the lengthy process of being involved in a case at the ICJ entails immense costs for a state, from legal team fees to detailed fact-finding missions, as well as other bureaucratic costs. In 2020 and 2021, the Court itself spent nearly $30 million per year on program support, employee compensation, and other staffing costs.²³ The money spent on cases by claimant and defendant states is not public information, yet considering the global norms for the legal fees of highly qualified attorneys, as well as the number of hours spent working on the cases, it is possible to estimate that the costs surpass millions of dollars. For developing states, these costs can hinder their access to the ICJ, thus standing in the way of the deliverance of justice. 

To address this, in 1989, the UN established the Secretary-General’s Trust Fund to Assist States in Settlement of Disputes through the ICJ, in consultation with the President of the Court.²⁴ The fund provides financial assistance to states for expenses incurred in submitting a dispute to the ICJ, or for the execution of a Court judgment.²⁵ However, the Fund does not support states who are defendants in an ICJ case, that is, when they are the party in alleged violation of international law. This dynamic contradicts one of the foundational principles of international law: the presumption of innocence, also known as the “innocent until proven guilty” maxim. In other international courts, including the International Criminal Court, which tries individuals instead of states, this principle is commonly institutionalized in their statutes.²⁶ Conversely, for the ICJ, in which states, not individuals, are tried, the presumption of innocence is not codified. Considering that the ICJ is not technically a “criminal” court, the presumption of innocence might, at first glance, seem redundant. In practice, however, states might respond to criminal charges at the ICJ, such as genocide. As the Secretary-General’s Trust Fund provides financial assistance for bringing a claim to the ICJ, but not to responding to a claim, developing states who are respondents in a case face a significant financial burden for conducting their defense. This means that developing states are more vulnerable to unjust dynamics in the face of an alleged violation of international law. 

Another commonly cited shortcoming of the Court is its composition. Article 3 of the ICJ statute states, “The Court shall consist of fifteen members, no two of whom may be nationals of the same state.”²⁷ Judges are selected for 9-year terms by the UN General Assembly and the Security Council. Voting takes place simultaneously but separately at the two forums, and a candidate must have received an absolute majority of votes to be selected.²⁸ Considering the number of candidates and voters, this means that multiple rounds of voting may take place until a decision is made.²⁹ Additionally, to preserve “a degree of continuity,” one-third of the Court is selected every three years.³⁰ If a judge resigns from his or her post before the end of his or her term, a special election is held to elect a replacement to serve on the Court until the remaining term of the former judge is completed.³¹ 

There is a predetermined number of judges that represent each region: Three judges are appointed from African nations, two from Latin America, three from Asia, five from Western Europe, and two from Eastern Europe.³² Considering the number of countries around the world, the limited composition of the Court has invited criticism as to whether the ICJ perpetuates a Eurocentric worldview, reminiscent of the global political order of the 1940s. For instance, the total population of Asia, which is a geographically expansive and culturally diverse region, currently surpasses 4.7 billion.³³ In comparison, Western Europe only accounts for approximately 200 million of the global population.³⁴ This means that, at the “World Court,” only two judges represent the Asian context while five judges are selected from Western Europe. Considering that ICJ judges are international public servants, not representatives of their respective nations, the regional or national composition of the Court might appear inconsequential. However, regardless of whether the opinions of the judges align with their national governments, this uneven composition continues to perpetuate outdated global power dynamics. It is also reminiscent of colonial narratives surrounding the competency and aptitude of non-Western populations. In the Court’s 77-year history, for instance, no judge from the Arabian Gulf has served as a Member of the ICJ.³⁵ 

Furthermore, the Court has repeatedly prioritized judicial restraint when adjudicating cases, meaning that it strictly abides by precedent and the text of the law, and tends to disregard political, social, and legal contexts in its decision-making.³⁶ This has resulted in the Court’s reluctance to utilize the “legislative power” that has been granted to it through Article 38 of the ICJ statute.³⁷ It states that, in addition to existing sources of international law, the Court has the power to “decide a case ex aequo et bono,” that is, according to “the right and good” or “from equity and conscience,” if all parties to the case accept such an application.³⁸ In other words, its statute allows the Court to extrapolate international legal principles and rules, based both upon existing sources of law and legal and social norms. Such an approach is key when the ICJ considers contemporary matters which were not relevant at the time when main sources of international law were composed, primarily during the 20^th century. Examples of such matters include environmental law, climate-induced migration, and modern means of war, like cyberattacks.³⁹ As the ICJ is reluctant to use its legislative powers, it risks not being able to address such contemporary questions. This has led to apprehensions that the ICJ, and the existing international legal canon it consults, are unequipped to adjudicate contemporary disputes. Although the international community is yet to witness such a case, considering the rapid progress of technology, the ICJ might soon be called upon to decide on a dispute regarding artificial intelligence or cyber warfare. If the Court continues its reluctance to stray from precedence, it might prove to be ineffectual in avenues in which it has no previous legislative opinions or verdicts. 

Lastly, the most prominent criticism of the Court involves the lack of an accountability and enforcement mechanism, making the Court subject to the political and diplomatic considerations of individual states, rather than being an institution that operates solely on the basis of international law. For one, the Court has “voluntary jurisdiction” over states.⁴⁰ In contentious proceedings, which are disputes brought before the Court by a unilateral application filed by one state against another, this means that the jurisdiction of the Court is dependent on the consent of the states which are parties to the case.⁴¹ This is codified in Article 38 of the Rules of Court, which states that “[no] action [will be] taken in the proceedings, unless and until the State against which such an application is made consents to the Court’s jurisdiction for the purposes of the case.”⁴²

In the ICJ’s history, voluntary jurisdiction has meant that states who do not agree with the Court’s decisions could bypass reputational costs that entail non-compliance by withdrawing from the jurisdiction of the Court. A prominent example is the 1985 case between Nicaragua and the United States.⁴³ The case considered the United States’ support and funding of right-wing rebel groups against the communist government of Nicaragua in the 1980s.⁴⁴ The ICJ determined that the United States’ support constituted a violation of international law, specifically of the obligation to not use force against another state and to not violate a state’s sovereignty.⁴⁵ Although the United States had initially accepted to be bound by ICJ jurisdiction, it withdrew this consent in October 1985, following the ICJ’s determination.⁴⁶ This illustrates that, as the Court operates on “voluntary jurisdiction,” states may choose to legitimately withdraw themselves from the the Court’s proceedings when faced with a case or a decision that they find disagreeable. Other than the possibility of enduring reputational costs, states face no consequences for such an act, as the Court itself cannot ensure compulsory jurisdiction. Rather than being an institution that regulates the behavior of states, the ICJ’s capacity to enforce international law is determined according to the preferences and political positions of individual states.

The Court’s inefficacy is emphasized by the fact that the singular enforcement mechanism for its verdicts is through the UN Security Council, where decisions are subject to veto powers and political conflicts. Notably, in the 1985 case between the United States and Nicaragua, the latter referred the case to the Security Council.⁴⁷ However, the United States vetoed the Security Council’s attempts to enforce the ICJ decision.⁴⁸ Over three decades later, the United States is yet to pay any compensation to Nicaragua. An international court whose verdicts are, in effect, unenforceable, does not possess a great deal of judicial legitimacy, and will instead continue to be regarded as an ornamental institution. 

What Is Being Done About it?

Both academics and practitioners have made recommendations to support the Court’s legitimacy and potency. A leading recommendation on this matter concerns expanding the acceptance of the ICJ’s compulsory jurisdiction.⁴⁹ This arises from Article 36, Clause 2 of the ICJ statute, also known as the “optional clause,” which affirms that UN member states can, at any time, declare their consideration of the ICJ’s jurisdiction to be permanent.⁵⁰ For states that have declared that they recognize the ICJ’s jurisdiction without qualification, any international legal dispute involving the state can be submitted to the Court without a prior requirement of consent.⁵¹ Currently, only 74 nations around the world have declared compulsory jurisdiction, only one of which, the United Kingdom, is a permanent member of the Security Council.⁵² This means that all other countries can withdraw consent from ICJ proceedings at any moment, as has been illustrated in the Nicaragua v. United States case in 1985, thus effectively prohibiting the Court’s decisions from being enforced. 

Voluntary jurisdiction ensures that states can preserve their political standing in the face of sensitive matters, but, for international legal governance, it also significantly diminishes the Court’s mandate. Recognizing this, there have been calls made to expand the reach of Article 36(2) of the ICJ statute.⁵³ In order to ensure that international disputes are resolved in a court of law, scholars have suggested that an objective and extensive inquiry must be carried out by relevant institutions to pinpoint the reasons why countries choose to forego the ICJ’s compulsory jurisdiction.⁵⁴ At the policy level, no such process has been undertaken thus far, meaning that there is no theoretical framework to support policymaking on this front. 

Moreover, policy actors and academics have called for establishing a norm to not veto enforcement requests for ICJ decisions at the Security Council. Specifically, ongoing campaigns, such as those by the Accountability, Coherence, and Transparency (ACT) group, and by the 2015 France-Mexico initiative to suspend the veto power in the face of mass atrocities, can address limiting permanent members’ veto power regarding the enforcement of ICJ decisions.⁵⁵ This can be done through the issuance of resolutions at the General Assembly (GA) that advocate for stopping states from obstructing ICJ judgments, which could discourage permanent members from doing so at the Security Council. Even though General Assembly resolutions are non-binding, they could represent a concrete step towards reforming the enforceability, or lack thereof, of ICJ verdicts.

Another frequently cited call for reform includes increasing the frequency and extent of the Court’s advisory opinions.⁵⁶ In addition to determining contentious cases, which are brought by one state upon another for alleged violations of international law, the Court can issue advisory opinions to provide guidance on legal matters in a more general sense. According to Article 96 of the UN Charter, the General Assembly, the Security Council, or a specialized agency, such as UNESCO or the World Health Organization, can request that the ICJ provide advisory opinions on “legal issues arising within the scope of their activities.”⁵⁷ Thus far, the ICJ has not made widespread use of advisory opinions, issuing only 28 since its inception.⁵⁸ Because such opinions are non-binding, they can provide flexibility to the ICJ to guide international policymaking in accordance with international law. As one of six branches of the UN, the ICJ can further its influence on intergovernmental affairs through the widespread use of such opinions, and shape the international legal governance structure for the greater good. 

What’s Next?

The late ICJ Judge Manfred H. Lachs wrote in 1992 that the Court is “the guardian for the international community, both within and without the United Nations.”⁵⁹ However, due to its limited composition, long-winded decisionmaking, and lack of an enforcement mechanism, the ICJ has fallen short of living up to the ideals that spearheaded its creation. These shortcomings can carry crucial implications going forward.

Doubts regarding the ICJ’s work can prove to be critical for the international order. The Court’s decisions serve as a crucial platform for the development of international law. As there is no global “constitution,” the international legal canon is built upon precedent, in reference to the ideals expressed in the UN Charter. Its decisions and reasonings are reflected in those of other international courts, including ad hoc or permanent tribunals, special courts, arbitration and conciliation institutions, and supranational courts with a regional focus. The calls for reforming the ICJ thus carry implications beyond the Court itself, and any reform is also bound to impact the canon of international law at large. 

In a fast-paced and mercurial era, forged by the rapid development of technology and digital avenues for the instantaneous conduct of diplomatic practices, the international community requires a “World Court” that can respond to its disputes, concerns, and paradoxes in a timely and adequate manner. If we are to remain committed to the aspirations that led to the establishment of the ICJ, we must be wary of a court of law that deems it acceptable for an interstate dispute to be resolved in 28 years, or for its decisions to go without enforcement. 

There is no question that it might prove desirable for some states to maintain the ornamental status of the ICJ. Any reform that expands the jurisdiction and capabilities of the ICJ stands to chip away at the core principle of international relations, that is, the reverence for sovereignty. States, however, must determine if greater freedom to act unilaterally on the international scene, and in line with their self-interests, is a desirable bargain in exchange for creating and maintaining a potent international legal governance structure.

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