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Public Interests in the International Court of Justice—A Comparison Between Nuclear Arms Race (2016) and South West Africa (1966)

  • Ingo Venzke (a1)
Abstract

In the present essay I compare the 2016 judgment of the International Court of Justice (ICJ) in Nuclear Arms Race (Marshall Islands v. United Kingdom) with the Court's 1966 judgment in South West Africa (Ethiopia v. South Africa; Liberia v. South Africa). A series of similarities between the two judgments are obvious: They are two of the three cases in the history of the Court in which the judges were equally split and the President had to cast his tie-breaking vote. The critique of the judgments has been exceptionally strong, in 2016 as in 1966. The core of the critique, then as now, has practically been the same—the Court retreats into an excessive formalism that protects great powers.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK), Preliminary Objections (Oct. 5, 2016) [hereinafter Nuclear Arms Race]. The Court delivered three very similar judgments in the cases against the India, Pakistan, and the United Kingdom. Vice-President Yusuf found that a dispute existed with the United Kingdom, but not with India or Pakistan. Only in the case with the United Kingdom were the votes equally split. When I speak of the 2016 judgment, I speak of that judgment.

2 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.) 1966 ICJ Rep. 6 (July 18) [hereinafter South West Africa].

3 Other instances are Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8) [hereinafter Nuclear Weapons]; Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles From the Nicaraguan Coast (Nicar. v. Colom.), Preliminary Objections (Mar. 17, 2016).

4 John Dugard, The SouthWest Africa/Namibia Dispute 292 (1973).

5 Jürgen Kocka, Comparison and Beyond, 42 Hist. & Theory 39 (2003).

6 Anthony D'Amato, Legal and Political Strategies of the South West Africa Litigation, 4 Law Transition Q. 8, 17 (1967); also see Ernest A. Gross, The South West Africa Case: What Happened?, 45 Foreign Aff. 36, 40 (1966).

7 South West Africa, Verbatim Record, C.R. 65/2 at p. 8; quoted in D'Amato, supra note 6, at 23.

8 South West Africa, Dissenting Opinion of Judge Jessup, 1966 ICJ Rep. 325, 387–389 (July 18).

9 See his speech at The Marshall Island's Nuclear Zero Cases in the International Court of Justice, The Lawyers Committee on Nuclear Policy Inc., at minute 6.02.

13 Such a reading of South West Africa was also offered by Cecily Rose in her contribution to the symposium A Court for the World? Trust in the ICJ 50 years after South West Africa, The Hague (Nov. 30, 2016). On the difficulties, see already André Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure, 23 Eur. J. Int'l L. 769 (2012).

14 South West Africa, supra note 2, at paras. 14, 31.

15 Judge Ammoun (Lebanon) replaced Judge Badawi but, as is common practice, he did not join the ongoing proceedings.

16 See South West Africa, Joint Dissenting Opinion of Judge Sir Percy Spender and Sir Gerald Fitzmaurice, 1962 ICJ Rep. 465 (Dec. 21).

18 Statute of the International Court of Justice art. 55 (“in the event of an equality of votes, the President … shall have a casting vote.”).

19 South West Africa, Preliminary Objections, 1962 ICJ Rep. 319, 342 (Dec. 21).

20 South West Africa, supra note 2, at 29.

21 Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 ICJ Rep. 3, para 33 (Feb. 5, 1970).

22 East Timor (Port. v. Austl.), 1995 ICJ Rep. 90 (June 30); also see Dissenting Opinion of Judge Weeramantry, 139 esp. at 172–4. For a comparison with South West Africa, see John Dugard, 1966 and All That: The South West Africa Judgment Revised in the East Timor Case, 8 African J. Int'l & Comp L 549 (1996).

23 Questions relating to the Obligation to Prosecute and Extradite (Belg. v. Sen.), 2012 ICJ Rep. 422 (July 20).

24 Nuclear Arms Race, Dissenting Opinion of Judge Crawford para 22.

25 Nuclear Arms Race, supra note 1, at para 41.

26 See generally, David Feldman, Public Interest Litigation and Constitutional Theory in Comparative Perspective, 55 Modern L. Rev. 44, 44 (1992) (“the scope of citizens to use judicial processes to advance public, political ends gives a discernible indication of social and legal attitudes to politics, the rights and responsibilities of citizenship, and the relationship between electors, legislatures, executives, courts and the disfranchised”).

27 Ryan M Irwin, Apartheid on Trial: South West Africa and the International Court of Justice 1960–66, 32 Int'l Hist. Rev. 619, 624 (2010); Gross, supra note 6, at 41–42. Also see National Policy Paper—South Africa, Part One, Department of State, S/P Files: Lot 72 D.

28 Gross, supra note 6, at 41.

29 D'Amato, supra note 6, at 31–33.

30 The wealth of resolutions is referenced in the applicant's memorial in Nuclear Arms Race, para 201.

31 See Nuclear Weapons, supra note 3.

32 See GA Res. 51/45 (Dec. 10, 2006) (115–22–32).

33 First Committee, Taking forward multilateral nuclear disarmament negotiations, UN Doc. A/C.1/71/L.41 (Oct. 14, 2016). See Dan Joyner, U.N. General Assembly Decides to Convene a Nuclear Weapons Ban Conference, Arms Control Law (Oct. 31, 2016).

34 GA Res. 2145 (XXI) (Oct. 27, 1966). See further, Taslim O. Elias, The International Court of Justice and Some Contemporary Problems 348 (1983).

35 D'Amato, supra note 6, at 43.

36 See especially South West Africa, Dissenting Opinion of Judge Jessup, 1966 ICJ Rep. 325 (July 18); Nuclear Arms Race, Dissenting Opinion of Judge Cançado Trindade.

37 UN Charter art. 92; Statute of the International Court of Justice art. 1. On the conceptions of the ICJ, see Armin von Bogdandy & Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication 36–63 (2014).

38 Nuclear Arms Race, Dissenting Opinion of Judge Robinson para. 70 (“the Court has written the Foreward in a book on its irrelevance”).

39 Letter from Dutch embassy in Monrovia to The Hague, July 22, 1966, NL-HaNa, Dutch Ministry of Foreign Affairs, Inv. Nr. 24849.

40 Sydney Morning Herald (July 20, 1966), Dutch Ministry of Foreign Affairs, Inv. Nr. 24849.

41 Quoted in Helmut Steinberger, The International Court of Justice, in Judicial Settlement of International Disputes 193–283, 226–7 (1974).

42 South West Africa, Dissenting Opinion of Judge Tanaka, 1966 ICJ Rep. 250, 276.

43 Taslim Olawale Elias, Africa and the Development of International Law 75 (Richard Akinjide ed., 1972).

44 Nuclear Arms Race, Dissenting Opinion of Judge Bennouna 2.

45 Nuclear Arms Race, Dissenting Opinion of Judge ad hoc Bedjaoui para. 22 (“mais pour ‘heure le danger le plus inquiétant reste l'excès de formalism,” author's translation). As the Court's President between 1994 and 1997, Bedjaoui notably read out the Court's Advisory Opinion in Nuclear Weapons, supra note 3. For his view on South West Africa also see Mohammed Bedjaoui, Expediency in the Decisions of the International Court of Justice, 71 Bri. Y.B. Int'l L. 1, 16–17 (2000).

46 Nuclear Arms Race, Dissenting Opinion of Cançado Trindade esp. para 11; Nuclear Arms Race, Dissenting Opinion of Judge ad hoc Bedjaoui.

47 Nuclear Arms Race, Dissenting Opinion of Judge ad hoc Bedjaoui para. 81.

48 South West Africa, Dissenting Opinion of Judge Jessup, 1966 ICJ Rep. 325, 355 (July 18).

49 Nuclear Arms Race, Dissenting Opinion of Judge Bennouna 3.

50 Georgia v. Russia, Separate Opinion of Judge Abraham, 2012 ICJ Rep. 223, para. 14 (Apr. 1).

51 Nuclear Arms Race, Declaration of President Abraham para. 9.

52 See The Battle for International Law in the Decolonization Era (Jochen von Bernstorff & Philipp Dann eds., forthcoming 2017).

53 Rosalyn Higgins, The International Court of Justice and Africa, in Themes and Theories 1056, 1071 (2009).

54 Nuclear Arms Race, Dissenting Opinion of Judge Robinson para. 68.

55 Thucydides, The History of the Peloponnesian War Book 5, Chapter 89 (431 B.C.). For a commentary in this vein also see Nico Krisch, Capitulation in The Hague: The Marshall Islands Case, EJIL: Talk! (Oct. 10, 2016).

56 Comment made at the symposium A Court for the World? Trust in the ICJ 50 years after South West Africa, The Hague (Nov. 30, 2016).

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