The international court in decline
Eric A. Posner The New York Times
Thursday, January 13, 2005
Global justice I
CHICAGO In its final decision of 2004, the International Court of Justice in
The Hague decided that it had no jurisdiction to determine whether Serbia
and Montenegro had a valid legal claim against NATO countries that
participated in the intervention in Kosovo in 1999.
While few outside Belgrade probably paid much attention, the decision was
symbolically very important: It showed just how incapable the court is of
resolving disputes, and what little hope the new International Criminal
Court has of doing much better.
There is no doubt that in strictly legal terms, NATO's intervention violated
international standards. What was unclear was whether the court had
jurisdiction to act against it. In this, the court was in an unenviable
position: If it had held against the NATO states, they would surely have
ignored the judgment. By holding in favor of these states, the court showed
its irrelevance.
The decision was a fitting end to a dismal year for the court, which is the
United Nations' judicial organ. Earlier in the year, Israel rejected an
advisory opinion that held that its security wall in the West Bank is
illegal. The United States reacted lethargically to its third loss in a row
on the question of whether it is in violation of the Vienna Convention on
Consular Relations because police often fail to inform foreign citizens they
have arrested of their consular rights. Along with the Serbia case, these
two decisions were the court's only major actions in 2004.
And the year was not anomalous. Throughout its 60-year history, the court
has averaged only a few cases a year, and has rendered a decision in fewer
than 100 all told. By contrast, the World Trade Organization's settlement
system, in place for less than a decade, has already heard several hundred
cases, and the European Court of Justice, which hears disputes between
European Union members, has heard thousands of cases in its half-century
existence.
Most disturbing for supporters of the court of justice is that it has been
doing worse as it has aged. It hears cases at about the same rate today as
it did 50 years ago, even though the number of countries in the world has
tripled during that time. This means that the annual number of cases per
nation has declined by two-thirds even as global interaction has soared.
Increasingly, major states avoid the court. In the last 30 years, the
countries with the 10 largest economies have brought only two contentious
cases to The Hague.
Many major nations - China, Japan and Russia - have never been party to an
International Court of Justice case. Others, including France, Britain and
the United States, have lost whatever enthusiasm for the court that they
once had. In the court's first 20 years, these three states brought more
than a dozen cases; in the last 20 years, they have brought only one.
A principal reason for the decline of the court is that many countries have
restricted its jurisdiction over them. The main way that the court obtains
power is by having states submit to "compulsory jurisdiction" - that is,
file declarations in which they consent to be sued by any other state that
has filed a similar declaration. The founders of the court of justice hoped
that eventually all nations would submit to compulsory jurisdiction.
But since the court's early years, the fraction of the world's nations
subject to compulsory jurisdiction has declined from two-thirds to
one-third. And many countries that technically remain subject to compulsory
jurisdiction have used various tricks to ensure that it can be used against
them only in the narrowest circumstances.
For example, India excludes matters within its "domestic jurisdiction" and
concerning its territorial boundaries. Further, the biggest powers have
mostly opted out: At one time all permanent members of the Security Council
other than the Soviet Union consented to compulsory jurisdiction, but China,
France and the United States withdrew in the 1970s and 1980s, leaving only
Britain.
The other main avenue for the court of justice to obtain jurisdiction is on
a treaty-by-treaty basis. During its first two decades, nearly 200 treaties
were forged in which the signers conferred jurisdiction of disputes to the
court. Over the last 20 years, only about a dozen new treaties included
International Court of Justice oversight.
Why have countries abandoned the court? The most plausible answer is that
they do not trust the judges to rule impartially, but expect them to vote
the interests of the states of which they are citizens.
Statistics bear out this conjecture.
When their home countries are parties to litigation, judges vote in favor of
them about 90 percent of the time. When their states are not parties, judges
tend to vote for states that are more like their home states. Judges from
wealthy states tend to vote in favor of wealthy states, and judges from poor
states tend to vote in favor of poor states.
In addition, judges from democracies appear to favor democracies; judges
from authoritarian states appear to favor authoritarian states.
This is not to say that the judges pay no attention to the law. But there is
no question that politics matter.
History bears out this argument. From the beginning of the cold war, the
Soviet Union and its satellites refused to subject themselves to the
jurisdiction of a court they felt was dominated by representatives of
hostile countries. However, with decolonization, the composition of the
International Court of Justice changed, and many more judges came from newly
independent states that were unhappy with the Western-dominated
international legal system.
The watershed moment came when the court found the United States had
violated international law by mining Nicaraguan harbors in 1984.
America, which had long been the court's champion, rejected the judgment and
withdrew from compulsory jurisdiction.
Today, many of those with faith in international adjudication have switched
their allegiance from the International Court of Justice and the fledgling
International Criminal Court, which was established by treaty in 1998 and
has yet to begin operating.
But the criminal court has all the defects of its older sibling. Its
independent prosecutor and judges have every incentive to take account of
the political interests of the states of which they are nationals. With its
broad mandate to enforce ambiguous laws in a world that is overflowing with
war criminals, the criminal court's prosecutor and judges have enormous
discretion to pick defendants for maximum political effect.
The countries with the most to lose from politicized enforcement of
international law have refused to submit to the International Criminal
Court's jurisdiction, but they still must fear that their citizens, if
indicted, will be arrested while traveling.
In a sped-up version of the court of justice's history, the United States
has already expended considerable diplomatic effort to persuade parties to
the criminal court not to hand over any Americans who are indicted. Thus
even before it has had its first case, the International Criminal Court is
losing its ability to exercise its jurisdiction.
It needn't have been this way. America could have been a supporter of the
criminal court, if only the court's founders had agreed to make prosecutions
turn on Security Council authorization, which would have given the major
powers vetoes over prosecutions.
Without such assurances of immunity, America will be reluctant to turn over
war criminals to the court because doing so would legitimate an institution
that Washington sees as hostile to its interests.
At one time people hoped that the criminal court would render unnecessary
the cumbersome, ad hoc war-crimes tribunals like the one that has been
trying Slobodan Milosevic. This hope has been shattered.
It is hard to imagine a renegotiation of the International Criminal Court's
treaty in the near future, but if the body fails to accomplish anything of
value over the next several years, perhaps the issue of major power immunity
will be revisited.
Successful international organizations either adapt to great power politics
or they wither on the vine; it is a choice that the supporters of global
justice will soon face.
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