1. Introduction
The ICJ is caught in an inherent tension between its ambitious judicial mandate and its dependency on states. While the United Nations (UN) Charter makes the ICJ the UN’s principal judicial organ, the Court depends on whether states allow it to play this role. Against this background, this article focuses on one way for the Court to gain state support and help resolve this tension: by resort to judicial avoidance techniques.
After making the case for why it could be beneficial for the ICJ to practice judicial avoidance (Section 2), the article maps three different categories of judicial avoidance techniques at the Court’s disposal, and proposes a categorization based on their effects. It then assesses the specific potential that each category of avoidance techniques holds for the Court. At the outset, these techniques can be divided into merits-avoidance techniques (Section 3) and issue-avoidance techniques (Section 4). Merits-avoidance techniques enable the Court to dismiss a case before even addressing the merits. Issue-avoidance techniques allow the Court to proceed to the merits, but then to dodge certain issues during the review that follows. While these two categories of avoidance techniques allow the Court to sidestep certain elements of a case, I argue that they are not well suited to achieving the ultimate goal of resolving the tension in which the Court finds itself. Finally, the article turns to a third category of judicial avoidance techniques, comprised of one – so far underused – technique that holds more potential in this regard: the use of deferential standards of review (Section 5). It is submitted that this technique in particular merits further attention by the Court.
2. A case for judicial avoidance
With hindsight, the last seven decades might be described as the golden age of international law. They have seen the creation of a host of international organizations, an equally marked growth of international rules addressing state conduct, and an ever-growing number of rulings from the numerous international judicial bodies set up to enforce these rules.Footnote 2 All of this activity has contributed to considerably narrowing down the space for manoeuvring by states. One of the most notable developments has been the ‘judicialization of international relations’, meaning the increasing involvement of judicial bodies in the realm of international politics.Footnote 3
Lately, however, the pendulum seems to be on the cusp of swinging back. States increasingly argue for re-nationalization, especially in ‘sovereignty-sensitive’ areas, and recent changes in the European Convention of Human RightsFootnote 4 and ongoing debates about the role and propriety of international investment arbitrationFootnote 5 illustrate that some states have already begun to act accordingly. International courts and tribunals have become the target for criticism from those who lament that state conduct is being overly constrained and that courts are overstepping the boundaries of national sovereignty.Footnote 6 Such criticism is not new for the ICJ, and it has had the opportunity to develop a fine-tuned toolkit to meet such criticism.
As the ‘principal judicial organ’ of the UN, the ICJ shares the organization’s purposes,Footnote 7 including maintaining international peace and security (Article 1(1) UN Charter). Accordingly, the Court’s primary aim is to promote the peaceful settlement of disputes among the states. Furthermore, as any court does, it strives to promote norm complianceFootnote 8 and the realization of justice.Footnote 9 As the ICJ mainly acts through its decisions, contributing to these objectives presupposes that it issues decisions in the first place. This underlying idea, that the Court needs to issue decisions in order to fulfil its role, is what arguably motivated the UN General Assembly to recommend, on several occasions, that states refer their disputes to the Court.Footnote 10 The ICJ also participates in the activities of the UN by issuing advisory opinions. Accordingly, in principle, it should not decline to do so when its opinion its requested.Footnote 11 The Court’s recognition of this principle manifests itself in its pronouncement that only ‘compelling reasons’ may lead it to refuse to issue an advisory opinion once it has found it has jurisdiction.Footnote 12
The Court’s ability to issue decisions, however, depends on the states. Its jurisdiction for contentious proceedings is based on consent, ‘even if one might regret this state of affairs’.Footnote 13 So does its ability to issue advisory opinions: it is the states that ultimately stand behind the requests made by UN organs or authorized agencies. Furthermore, absent formalized effective enforcement mechanisms,Footnote 14 the Court is dependent on states’ willingness to implement its decisions.Footnote 15 Whether a state is willing to submit to the Court’s jurisdiction or to comply with its decisions depends on several factors.
First, a state’s perception of the Court’s legitimacy is potentially important.Footnote 16 The more the state perceives the Court as a legitimate institution, the more likely it is to consent to its jurisdiction and comply with its decisions (conversely, the less so, the less likely this becomes).
Second, Goodman and Jinks have argued that acculturation may be a factor in compliance: actors adopt ‘the beliefs and behavioral patterns of the surrounding culture’, regardless of their normative assessment of that pattern.Footnote 17 Applied to the situation of statesFootnote 18 dealing with the ICJ, this means that if there is a strong social norm among states to follow the Court’s decisions, an individual state will be inclined to comply as well. This mechanism would also work in favour of widespread consent to the Court’s jurisdiction, if such a norm were to exist.
A third factor is the outcome of a cost-benefit analysis. A multitude of variables may be relevant in this regard, such as whether and to what extent the state views the ICJ as a useful institution. The more that is the case, the more likely will that state support the Court in order to retain the (perceived) advantages of its activity for the future.Footnote 19 Another variable in this cost-benefit analysis is the stance taken by a state’s internal actors. The higher the pressure to co-operate with the ICJ exercised for instance by domestic political actors, civil society and the judiciary, the more likely that state’s co-operation becomes.Footnote 20
Finally, the stance taken by the international community matters in this analysis.Footnote 21 Not co-operating despite a general expectation to do so would signal unreliability and disrespect for international law. States perceived as unreliable will likely face repercussions in the form of higher ‘costs’ for future transactions with other states, or even be confronted with unwillingness to conclude transactions in the first place. On the other hand, if there is a general expectation of co-operation among states, a state will reap the benefits if it lives up to this expectation. Co-operation will enhance its reputation among the international community, making advantageous transactions more likely.Footnote 22 Accordingly, the higher the peer pressure exercised by other states, the more likely a state’s co-operation with the ICJ becomes.Footnote 23
Whether the mechanism of acculturation works, and whether the cost-benefit analysis made by the states tilts in the ICJ’s favour, depends on whether there is a general rule or expectation to co-operate with the Court by submitting to its jurisdiction and complying with its decisions in the first place.Footnote 24 Thus, the key for the Court is to create (and maintain) an atmosphere in which state co-operation with it becomes widespread and regular.Footnote 25 It can strengthen this co-operation expectation by working on the states’ perception of its legitimacy, such as by relying on recognized methods of interpretation or by issuing ‘morally right’ decisions. What matters for the purposes of this article is that it may also do so by lowering the perceived cost of co-operation. In this regard, it is important for states to feel that the ICJ sufficiently takes into account their (individual and shared) preferences.Footnote 26
Among the preferences states have, the most important one is that the Court respects their national sovereignty. Visibly taking into account this concern may set in motion a self-reinforcing process. First, it is more likely that a state will co-operate with the ICJ when the Court respects this central value. Each instance of co-operation would further strengthen the dynamics of acculturation, and tilt the cost-benefit analysis more in the Court’s favour.Footnote 27 Accordingly, each individual instance of co-operation would induce more states to co-operate with the Court in the future. However, this process also works the other way.Footnote 28
Accordingly, it is crucial that the Court adequately acknowledges sovereignty. Defining such a concept is difficult, but it is likely to be common ground among states that core national interests as for instance national security fall within that term. One way for the ICJ to acknowledge these interests is by resorting to judicial avoidance techniques whenever they are at stake, meaning ‘techniques to dispose of cases or issues within cases where a decision seems unnecessary, inappropriate, or perhaps simply too controversial’.Footnote 29 While ‘avoidance [is often seen] as something that should be avoided’,Footnote 30 the use of avoidance techniques enables the Court to not pass judgment on certain questions and thus to not antagonize the state(s) in question.Footnote 31
Of course, this is a fragile equilibrium to achieve. States do not invariably expect the ICJ to pay respect to sovereignty in such a substantial way, particularly when they appear before the Court as applicant. Relying too heavily on avoidance techniques may make states that seek resolution of their disputes reluctant to initiate proceedings before the Court. In addition, it would put the ICJ at odds with its important role as enshrined in the UN Charter.Footnote 32 Accordingly, an over-use of avoidance techniques would result in a loss of relevance and credibility, also inducing states to settle their disputes elsewhere. Thus, the choice whether to resort to avoidance techniques requires strategic judicial considerations in every individual case. There is no magic formula.Footnote 33
The following sections present some avoidance techniques available to the ICJ that may help it to achieve this equilibrium. At the outset, they can be divided into merits-avoidance techniques and issue-avoidance techniques.Footnote 34 Merits-avoidance techniques enable the Court to avoid a pronouncement on the entire substance of a case (or request) and are available in the first phase of the proceedings.Footnote 35 Issue-avoidance techniques in turn enable the Court to give a decision on the substance or merits but to avoid a pronouncement on certain issues during that examination. I will then suggest a third category, comprised of one – so far underused – technique: the use of deferential standards of review.
3. Pronouncements serving as merits-avoidance techniques
Merits-avoidance techniques concern the question of whether the Court proceeds to a review of the merits at all, and tend to follow a binary, black-or-white logic. Examples of merits-avoidance techniques include the denial of jurisdiction, the denial of standing, and the denial that there is a dispute to adjudicate upon.
According to Article 36(6) ICJ Statute, it is the Court that ultimately decides whether it has jurisdiction. As a result of this ‘Kompetenz-Kompetenz’,Footnote 36 it enjoys a certain amount of factual latitude in this regard inasmuch as this provision puts the decision in the hands of the Court alone. This latitude creates the possibility of taking into account considerations of expediency.Footnote 37
The two other examples of merits-avoidance techniques are available when the Court examines whether a claim is admissible. Questions of admissibility directly relate to the Court’s judicial character, of which it is the sole guardian.Footnote 38 Protecting this integrity can only be done on a case-by-case basis, again resulting in some leeway for the Court. As Shany observes:
There may be occasions … when the exercise of jurisdiction would be undesirable from the viewpoint of an international court … Hence, international courts may prefer to avoid to adjudicate certain cases, and the rules of admissibility provide them with a legally valid method to [do so].Footnote 39
3.1 Denying jurisdiction
The judgment in the Aerial Incident of 27 July 1955 case illustrates how a negative finding on jurisdiction can serve as a merits-avoidance technique.Footnote 40 Bulgarian fighter planes had shot down an Israeli civil aircraft that had intruded into Bulgarian airspace. All 58 people aboard the plane were killed, including American, British, Canadian, French, South African, and Israeli citizens. Many Western nations protested; the United States, the United Kingdom, and Israel instituted proceedings against Bulgaria. Israel sought the Court’s declaration that Bulgaria was responsible for the aircraft’s destruction and the resulting loss of life and all other damage.Footnote 41
The Court, however, accepted Bulgaria’s claim that it did not have jurisdiction to adjudicate. It held that Bulgaria’s declaration accepting the Permanent Court of International Justice’s jurisdiction from 1921 had ceased to be in force with that court’s dissolution, and that accordingly Article 36(5) ICJ Statute could not confer jurisdiction on the Court when Bulgaria joined the Statute by virtue of becoming a member of the UN in 1955. Furthermore, it drew a distinction between signatory states present at the San Francisco conference in 1945, and all other states, to which Bulgaria belonged. According to the ICJ, Article 36(5) could not maintain the latter states’ declarations in force and was not intended to. Consequently, the Court did not have to address Bulgaria’s other preliminary objections, nor the merits of the case.Footnote 42
However, the Court’s reasoning is not entirely convincing, as a joint dissenting opinion by three judges indicated. For instance, had the Court considered the equally authentic French version of the ICJ Statute, it should have concluded that Article 36(5) indeed conferred jurisdiction upon the Court. The French version of Article 36(5) reads: ‘Les déclarations faites en application de l’Article 36 du Statut de la Cour permanente de Justice internationale pour une durée qui n’est pas encore expirée’,Footnote 43 and thus only refers to the element of time – and not to other causes of termination, as the majority held.Footnote 44 Furthermore, the dissenting judges objected to the majority’s position that the provision contained a distinction between the original signatory states and those that later acceded to the Statute.Footnote 45 During a time of tension and strained relations between the Western and the Eastern Bloc, however, proceeding the way it did enabled the Court to avoid adjudicating upon the merits of a politically sensitive case.Footnote 46
3.2 Denying standing
The Court also can turn the negative finding on standing into a merits-avoidance technique, as the South West Africa caseFootnote 47 and the NATO cases show. In the NATO cases, Serbia and MontenegroFootnote 48 had asked the Court to find that several NATO member states had violated inter alia the prohibition of the use of force by bombing several targets in its territory.Footnote 49 In addition, it had requested the indication of provisional measures. To found the jurisdiction of the ICJ, Serbia and Montenegro had invoked both Article 36(2) ICJ Statute and Article IX Genocide Convention.Footnote 50 The Court, however, rejected to issue provisional measures, observing the lack of prima facie jurisdiction ratione temporae under Article 36(2) ICJ Statute and the lack of prima facie jurisdiction ratione materiae under Article IX Genocide Convention.Footnote 51
However, when the Court went on to decide on the preliminary objections, it chose to rely on another finding to dismiss the cases: it held that Serbia and Montenegro did not possess standing under Article 35(1) ICJ Statute. The ICJ found that at the time of the filing of the applications, Serbia and Montengro had not been a member of the UN and accordingly had not been a party to the ICJ Statute by virtue of Article 93(1) UN Charter.Footnote 52 Furthermore, it held that the Genocide Convention could not give Serbia and Montenegro access to the Court by virtue of Article 35(2) ICJ Statute.Footnote 53 Consequently, the Court held that Serbia and Montenegro did not have access to the Court at the time of its applications, and dismissed the applications.
While the result, i.e., that the cases were discarded at this stage, did not come as a surprise, what is conspicuous is the justification employed by the Court in order to reach this result. Presumably, these cases would have not reached the merits stage in any case – the jurisdictional basis (both ratione temporae and ratione materiae) was too weak. However, while the decisions were issued unanimously, seven of the 15 judges criticized the majority for relying on this particular ground for dismissing the cases, inter alia because of its implications for other proceedings pending before the Court at the time, namely the Bosnian and the Croatian Genocide cases.Footnote 54 These cases had been brought by Bosnia and Herzegovina and by Croatia against Serbia and Montenegro in 1993 and 1999, respectively. The necessary implication of the finding in the NATO cases that Serbia and Montenegro did not have access to the Court between 1992 and 2000 normally would have been that the Court could not have reviewed the merits in those two proceedings as well.Footnote 55
Thus, while the negative finding on standing in the NATO cases was not used as a merits-avoidance technique in this instance, it seems that the ICJ relied on this finding as a forward-looking avoidance technique – an avoidance technique that it could resort to in the Bosnian and the Croatian Genocide cases.Footnote 56 It needs to be mentioned, however, that when the Court eventually addressed the question of Serbia and Montenegro’s access to the Court in the Bosnian and Croatian Genocide cases in 2007 and 2008, it refused to resort to this avoidance technique – it even went to considerable lengths to overcome this hurdle.Footnote 57
3.3 Denying that there is a dispute
The finding that there is no dispute between the parties to adjudicate upon constitutes a third merits-avoidance technique available to the Court. One example for this can be found in the Marshall Islands cases. Other examples for dispute-related avoidance techniques can be found in the Nuclear Tests casesFootnote 58 and the Georgia v. Russia case.Footnote 59
In the Marshall Islands cases, the Marshall Islands brought forward claims against India, Pakistan and the UK, alleging that they were in violation of customary international law (in the case of the UK, also of Article VI of the Treaty on Non-Proliferation of Nuclear Weapons) because they had ‘not pursued in good faith negotiations to cease the nuclear arms race’ and ‘negotiations leading to nuclear disarmament in all its aspects’.Footnote 60 Thus, over 40 years after the Nuclear Tests cases and 20 years after the Legality of the threat or use of nuclear weapons Opinion, the Court was again asked to pronounce on the thorny topic of nuclear arms.
However, as in previous proceedings, the ICJ ‘decided not to decide’.Footnote 61 It held that a dispute between the parties did not exist, and accordingly dismissed the Marshall Islands’ applications. Two points in the Court’s reasoning were crucial for this finding. First, it introduced an additional criterion for a dispute to exist: the Marshall Islands needed to show that ‘the respondent was aware, or could not have been unaware, that its views were “positively opposed” by the applicant’.Footnote 62 Second, while the ICJ initially referred to its traditional flexibility by holding that ‘[i]n principle, the date for determining the existence of a dispute is the date on which the application is submitted’, it then factually contradicted this position.Footnote 63 A desire of avoidance might have been the underlying cause for both those findings.
Contrary to the Court’s position that the ‘awareness’ criterion was already ‘reflected in previous decisions’, it amounts to the creation of an entirely new jurisdictional precondition not based in previous case law.Footnote 64 Furthermore, the Marshall Islands cases mark a departure from the Court’s ‘tradition of flexibility’Footnote 65 in jurisdictional aspects.Footnote 66 The Court had found in the past on several occasions that a dispute did exist, even if that dispute only ‘clearly manifest[ed] itself during the proceedings’, as long as there was a ‘start or … onset of [the] dispute prior to the filing of [the] application’.Footnote 67 On this occasion, it instead chose to ‘artificially stop the time of law and analysis at the date of submission of the request’.Footnote 68 Thereby, the ICJ refused to apply the established principle that it should overlook preliminary defects in an application if a new one would not be vitiated by the same defect, so as to avoid a circularity of procedure.Footnote 69
The Marshall Islands’ applications had posed a momentous challenge to the Court, a challenge to enter dangerous waters. Had the Court pronounced on the merits, it would have had to review the policy of nuclear deterrence, a cornerstone of the global security system. Furthermore, the application against the UK had involved the only Permanent Member of the UN Security Council that still accepts the Court’s jurisdiction under Article 36(2) of the ICJ Statute. By dismissing the cases at the jurisdictional stage, the ICJ avoided dealing with these sensitive issues, and avoided antagonizing powerful states. In the eyes of several commentators, the Court made ‘a deliberate choice not to entertain the case,Footnote 70 ‘and [hid] its evasion behind a façade of formalist legal reasoning’.Footnote 71 The decisions are regarded as an expression of the ‘ICJ’s trepidation to take jurisdiction over the “big cases”’.Footnote 72
3.4 Conclusion on merits-avoidance techniques
In the Nicaragua case, while dealing with contentions that the dispute was inadmissible, the ICJ observed that ‘[i]t must … be remembered that, as the Corfu Channel case … shows, the Court has never shied away from a case … merely because it had political implications’.Footnote 73 This statement implies that the ICJ has steadily rejected all claims for restraint that were based on the political nature of the matter. However, the cases discussed above represent instances in which it seems plausible that considerations of expediency and the desire to avoid hostile state reactions indeed motivated the Court to practice avoidance.Footnote 74 Shany argues that such behaviour is not illegitimate per se, pointing out that ‘case selection’ serves as an ‘important tool’ for international courts: it enables them to secure support from the relevant stakeholders.Footnote 75 In the same vein, Prott observes that:
[i]t would be rash to claim that … factual considerations play no part at all in the judges’ processes of reasoning. Of course they do, and any organization which completely disregards the views of persons on which its continued existence as a functioning institution depends, is likely to destroy the social acceptance and support which alone confer authority and power on it.Footnote 76
On the other hand, these cases also highlight the inherent limitations of this set of avoidance techniques. Resorting to these techniques merely permits the Court to avoid a matter entirely, therefore forcing it to operate in a binary, black-or-white logic. Relying on them implicates the Court’s institutional credibility to a significant extent and displeases the applicant side, which might be less inclined to resort to the ICJ in the future. In turn, not relying on merits-avoidance techniques might be interpreted by the respondent as the Court’s outright rejection of its (more or less) legitimate sovereignty concerns, and trigger adverse reactions on that state’s part. Thus, the use of merits-avoidance techniques not only seems less suitable to help the Court garner support and strength, but rather risks leading in the opposite outcome.
4. Pronouncements serving as issue-avoidance techniques
Even when proceeding to the substantial review of a case,Footnote 77 the ICJ may still exclude certain issues from its review. Avoidance techniques in that stage include the restriction of the scope of review, practising economy of argument, and the finding of non liquet.
4.1 Restricting the scope of review
The Kosovo Advisory Opinion shows how the ICJ can use the restriction of the scope of review as an issue-avoidance technique. The deeply divided UN General Assembly had asked the ICJ whether ‘the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo [is] in accordance with international law’.Footnote 78 This embroiled the Court in highly controversial questions of self-determination, remedial secession, territorial integrity, and statehood. With an aim to assert its judicial authority, the ICJ held that possible political implications did not constitute a reason for it to refuse to respond.Footnote 79 However, one may speculate whether such concerns did not in fact influence the Court majority – the opinion remained silent on self-determination and secession.
First, the ICJ did not expand the scope of the already narrow question (despite several suggestions to that end).Footnote 80 It is noteworthy that in the past, the Court had already affirmed its freedom to go beyond the strict terms of the question. In the Certain Expenses opinion (which the ICJ cited, albeit in a different context), in a very similar situation,Footnote 81 it had asserted that it ‘must have full liberty to consider all relevant data … in forming an opinion’.Footnote 82 Self-determination and secession were highly relevant aspects of the Kosovo request. Second, the Court read the question in an even more constrained way, understanding ‘in accordance with’ as ‘not in violation of’.Footnote 83 This made it possible to focus exclusively on the violation of negative prohibitions and to dodge the more salient issues, most notably the self-determination entitlement.Footnote 84
The reactions to this silence have been varied. For several commentators, the narrow answer given by the Court was the only legitimate answer it could give. For instance, Pellet, analysing the Serbian choice to submit what was at face value a very narrow question, observes that ‘[t]he risk of playing a game is that you may be taken at your own word. This is exactly what happened in this case. The Court strictly kept to the question asked – and rightly so’.Footnote 85 Others have taken issue with the decision, criticizing that the Court ‘answer[ed] the question asked in the most direct manner, and via the shortest available route’.Footnote 86 Several judges also criticized the Court for not dealing with the underlying issues of the request.Footnote 87 One commentator called the opinion ‘a masterpiece of avoidance’, achieved by ‘stupefying formalism’.Footnote 88 Several commentators explain the ICJ’s approach with its general reluctance to delve into unsolved issues of ‘high politics’, where the ICJ faces a dilemma: it has to assert its authority without deciding in a way that might not find the states’ acceptance.Footnote 89 Answering the question but sidestepping the major issues might just have been the way out for the Court.Footnote 90 Whether the opinion issued by the Court was appropriate or not, it is clear that a more assertive answer would not have been legally precluded. The ICJ had a choice, and it made a choice.Footnote 91
4.2 Economy of argument
Another way to engage in issue-avoiding is through resort to ‘economy of argument’: the ICJ draws upon one specific issue or argument to decide the case, and leaves aside other issues raised in the proceedings. Apart from the question of whether the Court may or should delve into these ‘other’ issues at all,Footnote 92 it is clear that one effect of this approach is that the ICJ avoids dealing with these – potentially sensitive – questions. One example for this is the Arrest Warrant case.
The case was brought by the Democratic Republic of the Congo (DRC) against Belgium. Asserting universal jurisdiction, Belgium had issued an arrest warrant for the then incumbent Congolese Minister for Foreign Affairs. This prompted the DRC to turn to the ICJ, asking it to declare that Belgium should annul said warrant. Initially, the DRC had based its submissions on two different arguments – first, that the exercise of universal jurisdiction violated international law, and second, that the arrest warrant violated the accused’s diplomatic immunity. Its final submissions, however, only included the second strand, on which the Court exclusively based its judgment.Footnote 93
Concerning the legality of universal jurisdiction, the ICJ held that the non ultra petita rule barred it from addressing this point in the operative part of the judgment. However, the Court noted that it could have addressed this issue in its reasoning if ‘necessary or desirable’, and that it was logically prior to the question of immunityFootnote 94 – a point also stressed by several judges in separate opinions. In a plea to the Court to take up its role and provide guidance to the international community, three judges argued that, indeed, addressing this issue would have been ‘necessary’.Footnote 95 At the very least, the ICJ was not barred from addressing universal jurisdiction, and indeed did not think it was.
However, a pronouncement on this question could have produced unwanted consequences from the Court’s perspective. Indicating that universal jurisdiction could be lawfully exercised could have destabilized the conduct of international relations and antagonized states with leaders under threat by this principle. In turn, the opposite would have dealt a serious blow to the enforcement of human rights and disappointed others. Perhaps fittingly, Cot finds the Court’s decision to be an expression of ‘judicial politics’.Footnote 96
4.3 Non liquet
A holding of non liquet can also serve as an issue-avoidance technique, as illustrated by the Legality of the threat or use of nuclear weapons Advisory Opinion. The UN General Assembly had asked whether ‘the threat or use of nuclear weapons [is] in any circumstances permitted under international law’.Footnote 97 The Court did not decline to deal with this request (as it was urged to do),Footnote 98 and thus did not rely on a merits-avoidance technique to avoid a review entirely.
Core security concerns were at stake for virtually all states. For several states, nuclear weapons were the cornerstone of their defence strategy, and they would have most likely ignored a Court decision finding that the use of these weapons was unlawful. Many other states in turn regarded nuclear weapons as their ultimate menace. Discarding the request was not a feasible option for the Court, with the South West Africa judgment still looming in the background.Footnote 99 There seemed no good way out. In short, this ‘momentous’Footnote 100 question had the ICJ ‘caught between a rock and a hard place’.Footnote 101
It finally resolved the issue with its first ever finding of non liquet. The Court held that:
the threat or use of nuclear weapons would generally be contrary to the rules of international law … however, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.Footnote 102
This pronouncement made it possible for both sides to claim their victory. As Chesterman has pointed out, the decision might best be explained with judicial prudence exercised by a Court struggling to preserve its legitimacy vis-à-vis the states.Footnote 103 Koskenniemi observes in the same vein that ‘[t]he Court felt both the law and its own authority to be insufficient’ for reaching a definite conclusion.Footnote 104 The opinion showcases another tool the ICJ can use to avoid dealing with an issue in order to preserve its authority as a ‘political institution in a world of sovereign states’.Footnote 105
4.4 Conclusion on issue-avoidance techniques
While these three decisions can all be endorsed from a strictly legal point of view, the introduction of a certain measure of expediency in each of them seems palpable. They also illustrate the specific potential of issue-avoidance techniques: they enable the ICJ to take on the case or request, while at the same time avoiding certain isolated issues (which may, however, lie at the very heart of the matter). Thus, rather than functioning in the binary, black-or-white logic of merits-avoidance techniques, they allow the Court to proceed with a more subtle distinction between those questions to be treated and those to be discarded from its scrutiny.
5. A pronouncement serving as ‘issue within issue’-avoidance technique
There is one further stage in the merits review where the Court can resort to a particular avoidance technique: in the determination of the applicable standard of review. ‘Standard of review’ denotes the degree of intrusiveness of a judicial body’s review into the respondent’s behaviour, i.e., to what degree that body second-guesses the respondent’s determinations as to whether the conditions of a given norm are (not) met.Footnote 106 Determining the standard of review thus permits the ICJ to adjust the division of decisional power among the states and itself (‘who decides?’) on a continuum, ranging from an objective de novo review to complete acceptance of the respondent state’s assertions.
Scholars have extensively addressed standards of review, both in the national and international context.Footnote 107 Concerning the latter, they have in particular addressed the operation of standards of review in the international human rights regime,Footnote 108 trade law,Footnote 109 and investment arbitration.Footnote 110 Many of these scholars take a normative stance on whether or not deferential standards of review should be adopted. Several for instance base their claim for embracing this notion on considerations of expertise and/or democratic accountability. They submit that in certain situations, judicial bodies are lacking in this regard and should therefore defer to the primary-decision makers, the states.Footnote 111
The focus of this article is a slightly different one. Instead of advancing systemic legal justifications for adopting deferential standards of review, it focuses on the possible institutional advantages for the Court itself if it does. When the Court adopts a deferential standard of review, it defers to the respondent state’s assertions to some degree, thereby escaping the need to follow through to the last detail of an issue itself. Resort to this notion thus enables the ICJ to make pronouncements on a certain aspect, while still acknowledging the respondent state’s assertions and concerns. This makes it possible to use deferential standards of review as an avoidance technique: a technique that enables the Court not to avoid entire issues, but rather issues within issues.
Several characteristics render norms amenable to the application of deferential standards of review. Shany, addressing specifically the ICJ, holds this to be the case whenever the Court is called to apply ‘inherently uncertain’ or ‘flexible’ norms – more specifically, standard-type, discretionary, and result-oriented norms.Footnote 112 The ICJ is often tasked with the application of this type of norms. In addition, on several occasions, respondent states have (indirectly) asked the Court to apply deferential standards of review. This section considers three examples from the Court’s case law where the latter was the case, and traces possible motives for its refusal to do so. It concludes by arguing that the potential of this particular avoidance tool merits the Court’s further attention.
5.1 A deliberate ‘avoidance of avoidance’
The Oil Platforms case furnishes the first example where the ICJ deliberately chose not to resort to deferential standards of review as an avoidance technique. Iran had instituted proceedings against the US, claiming that the US had violated the bilateral Treaty of Amity by attacking three Iranian oil platforms in the Persian Gulf. While the Court’s jurisdiction was based on the Treaty of Amity – mostly dealing with economic aspects – the dispute essentially concerned reciprocal accusations of unlawful use of force.
The principal question the Court addressed was whether the US attacks on the platforms could be justified as measures ‘necessary to protect … essential security interests’ under Article XX(1)(d) of the Treaty. The US argued that this provision contained notions ‘not easily susceptible to judicial scrutiny’ and that a ‘very wide margin of appreciation’ should be applied. It contended that ‘[o]nce the State concerned has shown that it found itself compelled to act … the Court should allow … [a] wide area of latitude to the State’s assessment of necessity’.Footnote 113 It finally claimed that as it had acted in good faith, the ICJ should find that the attacks were justified.Footnote 114
The Court, however, declined to follow this line of argument. In the first place, it held that the interpretation of Article XX(1)(d) had to follow the customary law on self-defence.Footnote 115 Accordingly, the US first had to prove that it had been the victim of an armed attack by Iran. The ICJ did not merely accept that the US had been justified to believe it had been (as the US had argued it should), but instead applied an objective test.Footnote 116 Regarding the criterion of necessity, the Court observed that under the law on self-defence, this requirement ‘is strict and objective, leaving no room for any “measure of discretion”’.Footnote 117 Accordingly, it did not need to address the specific US claim for deference under Article XX(1)(d), but instead explicitly rejected the application of deferential standards of review concerning a state’s exercise of self-defence under customary law.
Why did the Court not resort to deferential standards of review in this case? An answer may be found by taking into account that the entire review of Article XX(1)(d), and incidentally the customary law on self-defence, was an obiter dictum. The question whether the US attacks were justified would have only arisen if the Court had concluded that there had been a breach of the Treaty of Amity in the first place – which it denied later in the judgment. This suggests that the ICJ had other motives – presumably, it wanted to uphold the effectiveness of the prohibition of the use of force in the context of the then-emerging debate about expanding the notion of self-defence.Footnote 118 If the Court wanted to uphold this rule, then, necessarily, it also had to reject all claims to apply a deferential standard of review.
5.2 Human rights over deference
The Obligation to prosecute case provides the second example of the Court’s refusal to apply deferential standards of review. After previous efforts to hold the former Chadian president Habré criminally accountable for gross human rights violations (including torture) had failed, Belgium had filed a claim before the ICJ against Senegal, where Habré resided. It invoked a breach of the Convention against Torture (CAT) by Senegal, pointing to Senegal’s refusal to extradite him to Belgium and an alleged lack of effort to investigate over several years. Thus, Belgium’s goal to hold a former state leader accountable for some of the gravest human rights violations clashed with Senegalese concerns for its domaine réservé, embodied by the control over national criminal procedures.
For the ICJ, a central question was how strictly to apply the CAT provisions. By adopting a deferential standard of review, it could have signalled its respect for state autonomy in conducting criminal procedures. In fact, Senegal had argued that international law could not dictate ‘precisely how [it] should fulfil its … commitments, given that how a State fulfils an international obligation, particularly … where [it] must take internal measures, is to a very large extent left to the discretion of that State’.Footnote 119 Accepting this, however, would have inevitably weakened the effectiveness of the CAT.
First, the ICJ addressed Senegal’s obligation to conduct a preliminary enquiry against potential CAT offenders, and held that the choice of means in this regard is left to the state. However, based on an assessment of the CAT’s object and purpose, the ICJ then set a minimum standard for this enquiry, and objectively assessed whether this standard had been met.Footnote 120 Judge Yusuf criticized this approach, advancing that it is ‘erroneous to suggest … that a general standard’ exists for this assessmentFootnote 121 – thereby implying that primarily, the state ought to decide how to carry out this obligation.
Concerning Senegal’s obligation to prosecute, the ICJ first noted that the national authorities ‘remain responsible for deciding on whether to initiate a prosecution’, ‘thus respecting the independence of States parties’ judicial systems’.Footnote 122 However, pointing once more to the CAT’s object and purpose, the ICJ also observed that submission of the matter to the competent national authorities should take place ‘without delay’ and ‘as soon as possible’.Footnote 123 Again, individual judges did not agree. Judge Xue seemed to suggest that the applicable standard should be more closely related to reasonableness.Footnote 124 As she argued, Senegal should have been granted the necessary time to consider whether to extradite, and could not be found in violation during this process.
Accordingly, with resort to the object and purpose of the CAT, the ICJ declined to adopt a deferential standard of review. Its findings on the temporal scope of the obligation to prosecute are noteworthy: arguably, Senegal would have also failed to meet the reasonableness standard, making the establishment of a stricter standard unnecessary for the outcome of this case. It seems as if the ICJ purposefully set a strict standard to strengthen the CAT’s regime, comparable to the Oil Platforms case. As one commentator observed, ‘[t]he Court demonstrated that in interpreting [obligations to prosecute human rights offences], it was important … not to defer too strongly [to] the judgment of state governments’.Footnote 125
5.3 The margin of appreciation before the Court
The Whaling in the Antarctic case furnishes the third example of the ICJ’s reticence to apply deferential standards of review. Australia had contended Japan had violated its obligations under the International Convention for the Regulation of Whaling (ICRW) and the related Schedule (which forms an integral part of the Convention) with its JARPA II whaling program in the Antarctic. In defence, Japan (like the US in the Oil Platforms case) inter alia invoked a ‘margin of appreciation’ as a specific standard of review.Footnote 126 This sparked a debate about the role and place of the ‘margin’ in general international law.Footnote 127 The case involved the applicant’s interest to protect a global public good, whaling stocks, in a particularly vulnerable ecosystem. For Japan, the case involved a cultural matter of national prestige,Footnote 128 even more so as various international NGOs had been exercising pressure on Japan to stop whaling for decades.
The case hinged on whether JARPA II fell under Article VIII ICRW, according to which each contracting party may permit whaling by its nationals ‘for purposes of scientific research subject to such restrictions … as [it] thinks fit’.Footnote 129 Japan argued that it was in the best position to assess whether JARPA II was for purposes of scientific research. According to Japan, all the ICJ could assess was whether Japan could ‘reasonably regard [the program] as scientific research’ or not.Footnote 130 Both Australia and New Zealand (which had intervened) contended that Article VIII stated an ‘objective requirement’, leaving no margin.Footnote 131
The Court found that whether a whaling program ‘is for purposes of scientific research cannot depend simply on that State’s perception’.Footnote 132 It then examined whether JARPA II involved ‘scientific research’, and whether it was ‘for purposes of’ scientific research. In order to answer the second question, the Court examined whether its ‘design and implementation [were] reasonable in relation to achieving its stated objectives’. Here, the ICJ held that an ‘objective’ standard of review ought to be applied,Footnote 133 and concluded that JARPA II failed to meet this ‘objective reasonableness’ test. Accordingly, it found Japan to be in violation of its obligations under the ICRW and the Schedule.
Four judges dissented from the judgment, of which two opted for a more lenient standard of review. Judge Owada argued that since Article VIII was an exception to the sovereign right of whaling, the decision whether and how to issue whaling permits ‘is primarily left to the discretionary decision’ of the state. The ICJ should therefore have abstained from reviewing the ‘concrete modalities’ of JARPA II and only examined whether Japan had been acting in good faith.Footnote 134 Judge Abraham in turn opted for a sort of ‘manifestness’ standard. According to him, the Court should only have examined whether there was ‘manifestly’ no reasonable relationship between JARPA II’s means and its scientific objectives.Footnote 135
5.4 Conclusion on standards of review
Accordingly, in all three cases, the ICJ narrowed down state discretion and imposed a (rather) strict standard of review, and prioritized the effectiveness of the applicable legal regimes. Nonetheless, these three cases also highlight this particular avoidance technique’s distinctive potential for the ICJ, as will be discussed next.
First, what sets this avoidance technique apart from the others is that it permits an even finer balancing on the continuum between total deference to the states and no restraint at all. Accordingly, the ICJ does not have to exclude a review of the substance of an application or request altogether or discard issues from its review. Instead, it may approach even sensitive questions while still avoiding findings that could prove damaging for its institutional well-being. It is a way for the Court to effectively and – most importantly, accurately – balance out the competing demands associated with its activity.
Concerning UK human rights law, the adoption of a generalized theory of deferential standard of review has been criticized as ‘non-justiciability dressed in pastel colours’.Footnote 136 Looking beyond the criticism, this quote also serves to illustrate the significant advantage of adopting such standards in the international sphere over all other avoidance techniques. The doctrine of non-justiciability – despite a forceful rejection by Lauterpacht over 80 years agoFootnote 137 – still makes its appearances before the ICJ.Footnote 138 As noted in the introduction, the states’ concerns for their sovereignty is no less, if not even more acute today than it was then. Adopting deferential standards of review represents a pragmatic way to deal with these assertions. Doing so enables the ICJ to fine-tune the weight given to state sovereignty – thus introducing gradations – while still making pronouncements that provide guidance for the international community and thus without having to cede completely to the sovereignty-based interests of the states. Thereby, the ICJ can assert its role, follow its mandate and avoid the states’ outright rejection at the same time.Footnote 139 In addition, as the Court becomes stronger as an institution, nothing prevents it from gradually reducing the degree of deference accorded to defendant states when determining the applicable standard of review, thereby constantly adjusting for the cost of co-operation for the defendant and similar states. To use an expression borrowed from Alexander Bickel: Adopting deferential standards of review enables the Court to ‘allow leeway to expediency without abandoning principle’.Footnote 140
Significantly, even merely discussing whether to adopt a deferential standard of review would be beneficial for the Court. As seen above, the other avoidance-techniques tend to be rather opaque, and the Court often hides the motives for their (non-)application behind legalistic pretexts. Additionally, the way it applies these techniques is inconsistent. Both these factors make it difficult for the states to anticipate the Court’s use of these techniques in future cases. In contrast, the rationales for applying deferential standards of review have already been systematized by scholars and other international courts and tribunals. The arguments for and against deferential standards of review more openly acknowledge their normative roots, their link to the principle of sovereignty and to the role of international courts. By building on this edifice of ideas, the Court can lay out more openly its perspective on sovereignty and self-perception of its role. Thereby, it can demonstrate political consciousness, rather than insisting on an artificial (and not very credible) distinction between the ‘political’ and the ‘legal’, and make its decisions more transparent.
This transparency is a key factor in making the Court’s decisions more predictable for states. Better predictability in turn enables states to better assess the costs for co-operating with the ICJ. States will be somewhat more inclined to refer to the ICJ if they can reasonably predict its behaviour.Footnote 141 Openly addressing the reasons why the Court is adopting a deferential standard of review (or even why not) may therefore raise the states’ willingness to submit to its jurisdiction.Footnote 142 Accordingly, the transparency associated with resorting to the standard of review notion might help the ICJ to secure crucial state support.Footnote 143
6. Conclusion
In an ‘ideal’ world, resort to avoidance techniques would not be necessary for the ICJ – it would be respected and its decisions implemented simply on the basis of its status in the UN system. However, reality is different. Due to the ICJ’s institutional design, states have a decisive influence on its effectiveness, and this situation is highly unlikely to change in the future. In this environment, resort to judicial avoidance techniques may be a pragmatic way for the Court to adapt to that reality. This article has outlined different judicial avoidance techniques at the ICJ’s disposal, proposing a categorization based on their effects: merits-avoidance, issues-avoidance and deferential standards of review. Drawing on the Court’s case law, I have analysed several cases in which it seems likely that a desire for avoidance was one factor that influenced the course of action taken by the Court. However, both merits- and issue-avoidance techniques hold significant risks for the ICJ. Resort to them has often been perceived as an abdication of its role as the principal judicial organ of the UN, and has provoked negative reactions from various states, scholars and civil society.
In contrast, resort to the third category, deferential standards of review, may function as a particularly nuanced and transparent avoidance technique. If used with strategic wisdom,Footnote 144 this avoidance technique will do little damage to the Court’s standing and prove particularly useful as a power-balancing tool. Judicious resort to deferential standards of review thus seems to be one of the most promising options available for the ICJ to acknowledge states’ interests in order to win their support and to be able to fulfil its mandate as envisaged in the UN Charter.
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