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Innate Cosmopolitan Dialectics at the ICJ: Changing Perceptions of International Community, the Role of the Court, and the Legacy of Judge Álvarez

  • GEOFFREY GORDON

Abstract

Traditional conceptions of the international community have come under stress in a time of expanding international public order. Various initiatives purport to observe a reconceived international community from a variety of perspectives: transnational, administrative, pluralist, constitutional, etc. The perspectives on this changing dynamic evidenced by the International Court of Justice, however, have been largely neglected. But as the principal judicial institution tasked with representing the diversity of legal perspectives in the world, the Court represents an important forum by which to understand the changing appreciation of international community. While decisions of the Court have been restrained, an active discourse has been carried forward among individual judges. I look at part of that discourse, organized around one perspective, which I refer to as innate cosmopolitanism, introduced to the forum of the ICJ by the opinions of Judge Álvarez. The innate cosmopolitan perspective reflects an idea of the international community as an autonomous collectivity, enjoying a will, interests, or ends of its own, independent of constituent states. The application of that perspective under international law is put most to test in matters of international security, in particular where the interest in a discrete, global public order runs up against the right to self-defence vested in states. The innate cosmopolitan perspective has not, in these cases, achieved a controlling position – but, over time, it has been part of a dialectical process showing a change in the appreciation of international community before the Court, and a changing perception from the bench of the role of the Court in that community.

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1 See, e.g., volume 19 of the Leiden Journal of International Law (2006), dedicated to the work of Judge Álvarez.

2 Hambro, E., ‘Opinions Individuelles et Dissidentes des Membres de la Cour Internationale de Justice’, (1964) 34 Nordisk Tidsskrift for International Ret 181, at 192.

3 Zobel, K., ‘Judge Alejandro Álvarez at the International Court of Justice (1946–1955): His Theory of a ‘New International Law’ and Judicial Lawmaking’, (2006) 19 LJIL 1017, at 1039.

4 I. Hussain, Dissenting and Separate Opinions at the World Court (1984), 3.

5 Statute of the International Court of Justice, Art. 9. See Hussain, supra note 4, at 2–3.

6 See Hussain, supra note 4, at 7, 9, 264–5.

7 Ibid., at 264–6.

8 S. Rosenne, The World Court: What it is and How it Works (1995), 138–9.

10 See Hernández, G., ‘Impartiality and Bias at the International Court of Justice’, (2012) 1 Cambridge Journal of International and Comparative Law 183; Gross, L., ‘Limitations Upon the Judicial Function’, (1964) 58 AJIL 415.

11 It bears noting as well that I am also limiting the analysis to opinions of the ICJ and judges of the Court. I do not include potentially interesting arguments made by advocates before the Court or outside the Court.

12 Gordon, G., ‘The Innate Cosmopolitan Tradition of International Law’, (2013) 2 (4)Cambridge Journal of International and Comparative Law 906 (forthcoming).

13 Obregón, L., ‘Noted for Dissent: The International Life of Alejandro Álvarez’, (2006) 19 LJIL 983, at 1015.

14 J. Bartelson, Visions of World Community (2009), 9.

15 A. Álvarez, Le Droit International Américain: Son Fondement – Sa Nature d’après l’Histoire Diplomatique des états du Nouveau Monde et Leur Vie Politique et Economique (1910), 264.

16 Competence of Assembly Regarding Admission to the United Nations, Advisory Opinion, Judgment of 3 March 1950, [1950] ICJ Rep. 4, at 13 (Judge Álvarez, Dissenting Opinion).

17 International Status of South-West Africa, Advisory Opinion, Judgment of 11 July 1950, [1950] ICJ Rep. 128, at 175 (Judge Álvarez, Dissenting Opinion) (the last sentence, in the French, is ‘elle a des fins qui lui sont propres’).

18 Álvarez, A., ‘The Reconstruction and Codification of International Law’, (1947) 1 International Law Quarterly 469, at 479.

19 International Status of South-West Africa (Judge Álvarez, Dissenting Opinion), supra note 17, at 177.

20 Ibid., at 176.

21 See, e.g., Anglo-Iranian Oil Co. case, Jurisdiction, Judgment of 22 July 1952, [1952] ICJ Rep. 93, at 125 (Judge Álvarez, Dissenting Opinion).

22 Katharina Zobel also notes this ambiguity: ‘Judge Álvarez's concept of the role of the Court did not become very clear here, since he maintained on the one hand that the Court “creates the law; it creates it by modifying classical law”, but then said in the same sentence that it only declared what was the law.’ Zobel, supra note 3, at 1032.

23 Álvarez, supra note 18, at 473.

24 Ibid., at 476.

25 Álvarez, A., ‘New Conception and New Bases of Legal Philosophy’, (1918) 13 University of Illinois Law Review 167, at 180.

26 Ibid., at 181.

27 Álvarez, supra note 18, at 479.

28 Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, Judgment of 28 May 1948, [1948] ICJ Rep. 57, at 70 (Judge Álvarez, Individual Opinion).

29 Ibid., at 69.

31 Corfu Channel case, Merits, Judgment of 9 April 1949, [1949] ICJ Rep. 4, at 41 (Judge Álvarez, Individual Opinion).

32 Admission of a State to the United Nations (Charter, Art. 4) (Judge Álvarez, Individual Opinion), supra note 28, at 67.

33 Competence of Assembly Regarding Admission to the United Nations (Judge Álvarez, Dissenting Opinion), supra note 16, at 13.

34 Samore, W., ‘The New International Law of Alejandro Alvarez’, (1958) 52 AJIL 41.

35 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 38, 100.

36 Ibid., at 100–1 (citation omitted).

37 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment of 2 Feb 1973, [1973] ICJ Rep. 3.

38 See supra, note 35, at 153 (Judge Singh, Separate Opinion).

39 Ibid., at 168 (Judge Lachs, Separate Opinion).

41 Ibid., at 236 (Judge Oda, Dissenting Opinion).

42 Ibid., at 238.

43 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226, at 257.

44 Ibid., at 263.

45 Ibid., at 270–1.

46 Ibid., at 271.

48 See supra, note 43, at 394, 407 (Judge Shahabuddeen, Dissenting Opinion).

49 Ibid., at 394–5.

50 Ibid., at 403.

51 See supra, note 43, at 296 (Judge Ranjeva, Separate Opinion).

52 Ibid., at 297.

53 Ibid., at 439–40 (Judge Weeramantry, Dissenting Opinion).

54 Ibid., at 441–2.

55 Ibid., at 291 (Judge Guillaume, Separate Opinion).

56 Ibid., at 293.

57 Ibid., at 311 (Judge Schwebel, Dissenting Opinion).

58 See supra, note 38, at 153 (Judge Singh, Separate Opinion).

59 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, [2003] ICJ Rep. 161, at 181.

60 Ibid., at 230–1 (Judge Higgins, Separate Opinion).

61 Ibid., at 244 (Judge Parra-Aranguren, Separate Opinion).

62 Ibid., at 247 (Judge Kooijmans, Separate Opinion).

63 Ibid., at 325 (Judge Simma, Separate Opinion).

65 Ibid., at 327–8.

66 Ibid., at 327.

67 Fisheries case (United Kingdom v. Norway), Judgment of 18 December 1951, [1951] ICJ Rep. 116 (Judge Álvarez, Individual Opinion).

68 Verzijl, J. H. W., ‘Publicity or Secrecy of the Deliberations in the Permanent Court of International Justice’, in The Jurisprudence of the World Court, (1965), Vol. II, at 114.

69 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, [2005] ICJ Rep. 168, at 190.

70 Ibid., at 223.

71 See supra, note 69, at 327 (Judge Elaraby, Dissenting Opinion).

72 Ibid., at 332–3.

73 Ibid., at 330.

74 Ibid., at 338 (Judge Simma, Separate Opinion).

75 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment of 20 July 2012, [2012] ICJ Rep. 422.

76 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, [2009] ICJ Rep. 139, at 175 (Judge Cançado Trindade, Dissenting Opinion).

77 Ibid., at 190.

78 Ibid., at 191.

79 Ibid., at 199.

80 Ibid., at 191.

81 See supra, note 75, at 553 (Judge Cançado Trindade, Separate Opinion).

83 Ibid., at 558 (emphasis in original).

84 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, [2011] ICJ Rep. 70.

85 Ibid., at 134–40.

86 Ibid., at 298 (Judge Cançado Trindade, Dissenting Opinion).

87 Ibid., at 321.

88 Ibid., at 240.

89 Ibid., at 308.

90 Ibid., at 322.

91 See, e.g., Lorca, A. B., ‘Alejandro Álvarez Situated: Subaltern Modernities and Modernisms that Subvert’, (2006) 19 LJIL 879, at 928.

92 See, e.g., Admission of a State to the United Nations (Charter, Art. 4) (Judge Álvarez, Individual Opinion), supra note 28, at 69.

93 Cf. Hernández, supra note 10.

94 International Status of South-West Africa (Judge Álvarez, Dissenting Opinion), supra note 17, at 176.

95 Lorca, supra note 91, at 914.

96 Kelsen, H., ‘Law, State and Justice in the Pure Theory of Law’, (1947) 57 Yale Law Journal 377, at 386.

* Assistant professor, Vrije Universiteit, Amsterdam; PhD, Vrije Universiteit Amsterdam; JD, Columbia Law School []. I would like to thank Wouter Werner and Roland Pierik for their advice and insights, as well as the editors and anonymous reviewers of the LJIL for their critical suggestions.

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