United States as defendant in the World Court
James W. Pfister
The World Court, formally known as the International Court of Justice (herein ICJ) is part of the United Nations (herein UN), dated June 26, 1945, at the close of World War II. It was an extension of the Permanent Court of International Justice (herein PCIJ) founded as part of the League of Nations after World War I. The statute of the PCIJ was the model for the current statute of the ICJ, which is an integral part of the charter. What is the basis for the jurisdiction of the ICJ? What is the relationship between a judgment of the ICJ and domestic law? Is it self-executing? Does it preempt contrary domestic law?
The jurisdiction of the ICJ is voluntary: in the statute Article 36(1) states it “… comprises all cases which the parties refer to it ….” The parties, thus, consent to take the case to the ICJ in the basic conception. But nations can make the jurisdiction compulsory: a) Article 36(2) permits a nation to commit itself in advance to ICJ jurisdiction vis-à-vis any other nation which also so commits itself (the so-called Optional Clause); and b) a treaty’s dispute resolution clause can contain a commitment to go to the ICJ to settle disputes, Article 36(1). For example, the U.S. has some 80-plus treaties out there which commit the U.S. to accept ICJ jurisdiction.
An example of the said Optional Clause, Article 36(2), is the case, Nicaragua v. United States (1984), during the Reagan Administration. Nicaragua sued the U.S. over our support of the “contras,” a group trying to overthrow its government (the Sandinistas), accusing the U.S. of using military force against them and intervening in their internal affairs.
The United States had made a declaration by President Harry Truman on Aug. 14, 1946, to accept the Optional Clause. Nicaragua had accepted the Optional Clause earlier through the PCIJ on Sept. 24, 1929. Thus, the ICJ had jurisdiction. After the ICJ found, over U.S. objections, that it had jurisdiction, the U.S. refused to participate in further proceedings. Further, the Reagan Administration withdrew from the Optional Clause on December 1985, calling its decision, “… regrettable but necessary … in order to safeguard U.S. interests.”
Regarding jurisdiction of the ICJ based on a dispute-settlement clause, there is Mexico v. United States (2004), the Avena case. The United States was accused of violating a clause in the Vienna Convention on Consular Relations (VCCR). The clause required that a person from a foreign nation accused of a crime be given notice that under the VCCR he had a right to contact his consulate for help. Several arrests in the U.S. had not given that notice. The Convention, or treaty, provided in an Optional Protocol that disputes would be decided by the ICJ.
On March 7, 2005, Secretary of State Condoleeza Rice announced the withdrawal of the U.S. from said Protocol. “As a consequence, the United States will no longer recognize the jurisdiction of the International Court of Justice.” The case proceeded forward because the ICJ determines jurisdiction at the time of the filing of the case and cannot be withdrawn midstream with short notice. The ICJ would end up giving an order to review cases where no notice was given to determine whether justice was done (review and reconsideration).
The U.S. Supreme Court, pursuant to Mexico v. United States, on March 25, 2008, decided Medellin v. Texas. It held that ICJ judgments are not directly enforceable as domestic law in state courts. They are not self-executing and they do not, by themselves, preempt contrary federal or state law. Chief Justice Roberts relied on Article 94 of the UN Charter, which simply says, “each … Member … undertakes to comply with the decision of the International Court of Justice.” “Undertakes” is a word of future reference, addressed to the political organs of a member of the UN, not directly to its legal organs.
Two contentious cases were filed during the Trump Administration, one involving the PLO (Palestine), another involving Iran, where the ICJ recently found jurisdiction. What role should the ICJ play in international law? With the U.S.?
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at [email protected]
This article originally appeared on The Daily Telegram: James Pfister: United States as defendant in the World Court