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)Footnote 1 with the Court's 1966 judgment in South West Africa (Ethiopia v. South Africa; Liberia v. South Africa).Footnote 2 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.Footnote 3 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.
The contentious proceedings in both Nuclear Arms Race and South West Africa were part of a much larger struggle. The applicants took pride in the fact that they did not act out of self-interest alone but were driven by a much larger desire—the struggle against racism in 1966 and against nuclear weapons in 2016. Both times the applicants turned to the ICJ when political processes had failed to deliver. And both times the Court let them down. While the Court's 1966 judgment in South West Africa remains “the most controversial judgment in its history,”Footnote 4 its 2016 judgment does come close.
The point of comparing Nuclear Arms Race with South West Africa is not to say that we have been there before and that nothing has changed. Above all the comparison raises questions as it renders the present more familiar and more peculiar.Footnote 5 The Court's judgment in 1966 was the first, and the one in 2016 the latest, in a series of cases that may be read as instances of public interest litigation—judicial action in support of causes that have not found effective recognition in the political process. When comparing the two judgments, I will focus on the classic question at the core of such public interest litigation: What are the characteristics of public interest litigation in these cases? To what extent can applicants litigate in the public interest? What does that ultimately say about the relationship between judicial and political processes, about social and legal attitudes to politics?
Litigating in the Public Interest—Then and Now
The judicial proceedings leading to the Court's 1966 judgment were a key part in the struggle against apartheid—the cause celèbre for newly independent and nonaligned states from the 1950s onward. The applicants, Ethiopia and Liberia, acted in consultation with African states and with their financial assistance.Footnote 6 With limited resources they hired a small team of mostly U.S. lawyers around Ernest Gross, a former U.S. representative at the United Nations. On the first day of the oral pleadings, Gross took pride in the fact that “the Applicants have not sought judicial recourse in order to secure a narrow material or selfish interest peculiar to themselves.” “Their legal interest,” he clarified, “encompasses nothing less than observance by the Respondent of the totality of its legal obligations under the ‘sacred trust’ of the Mandate.”Footnote 7 In his 1966 dissenting opinion Judge Jessup goes at great length to argue that, while there is indeed “no generally established actio popularis in international law, … international law has accepted and established situations in which States are given a right of action without any showing of individual prejudice or individual substantive interest as distinguished from the general interest.”Footnote 8
The Marshall Islands have suffered immensely from nuclear weapons. But upon filing its application with the Court in 2014, Tony de Brum, Foreign Minister and co-agent for the Marshall Islands, explained that “[n]ot only are the Marshall Islands fighting for what they believe to be good for the Marshall Islands. We are fighting for what we believe is the only solution in terms of peace and prosperity in the world.”Footnote 9 The proceedings in Nuclear Arms Race go back to the initiative of two NGOs, the International Association of Lawyers Against Nuclear Arms (IALANA) Footnote 10 and the Nuclear Age Peace Foundation.Footnote 11 The Amsterdam-based lawyer and Vice-President of IALANA, Phon van den Biesen, acted as co-agent next to Tony de Brum. The initial legal team included mostly lawyers linked with IALANA and with its UN office, the Lawyers Committee on Nuclear Policy.Footnote 12 IALANA provided financial assistance while the lawyers on the team worked pro bono.
Nuclear Arms Race and South West Africa testify to the shifting difficulties of public interest litigation before the ICJ.Footnote 13 The Court's 1966 Judgment denied the applicants’ standing on the ground that they had no “legal right or interest in the subject matter of the case.”Footnote 14 As may be well remembered, the Court thereby turned around from its 1962 Judgment on Preliminary Objections, to the great surprise and dismay of almost all observers. Its composition had changed slightly in the intervening years. Apart from the regular elections of 1963, Judge Badawi (Egypt) had died in 1965 and Judge Bustamante (Peru) was absent due to illness.Footnote 15 The Court's new President, Sir Percy Spender (Australia), and Judge Sir Gerald Fitzmaurice (United Kingdom), seized the opportunity to turn their joint dissent of 1962 into the new majority in 1966.Footnote 16 Together they persuaded Judge Sir Muhammad Zafrulla Khan (Pakistan) not to sit in the case (even though Judge Zafrulla neither recused himself, nor was a formal decision ever taken on the issue).Footnote 17 The remaining judges were evenly split and President Spender cast his vote to deny the applicants’ standing after all.Footnote 18
The 1962 Judgment had held that the applicants, like all former Member States of the League of Nations, have an interest in the effective performance of the “sacred trust” that the League had placed into the hands of South Africa as a mandate power in South West Africa.Footnote 19 The Court's 1966 judgment was the exact opposite and only allowed states to vindicate their “specific rights” connected to their individual interests.Footnote 20 Ethiopia and Liberia could not bring a case against Sought Africa's conduct as a mandate power for South West Africa, let alone against apartheid per se.
The Court has struck different tones since then. In Barcelona Traction (1970) it embraced the notion of erga omnes obligations in direct response to the fiasco of 1966 (and without any relevance for the case at hand).Footnote 21 East Timor (1995) showed limits as to what the erga omnes nature of obligations can do to establish the Court's jurisdiction.Footnote 22 But in 2012 the Court was at least confident enough to establish Belgium's standing in the case against Senegal by exclusively relying on the erga omnes nature of the obligation to prosecute or extradite torture suspects.Footnote 23 Judge Crawford could then rightly conclude in his dissenting opinion in Nuclear Arms Race that “[i]t is now established—contrary to the inferences commonly drawn from the Merits phase of South West Africa—that States can be parties to disputes about obligations in the performance of which they have no specific material interests.”Footnote 24
But with its 2016 Judgment in Nuclear Arms Race the Court has introduced a new hurdle according to which the respondent must have been “aware or could not have been unaware” of the existence of the legal dispute.Footnote 25 This threshold again works to limit access to the Court, especially for weaker states and for applicants who pursue public interests. Whatever sense the requirement of “objective awareness” might make in the settlement of concrete bilateral disputes, it creates new obstacles when applicants turn to the Court in order to supplement or remedy political processes.
Attitudes to Politics and the Role of the Court
The possibilities and limits for applicants to institute judicial proceedings in the public interests reveal social and legal attitudes to politics.Footnote 26 One would generally expect that the higher the hurdles for public interest litigation, the greater should be the trust in the political process. But in both 1966 and 2016 the ICJ raised the hurdles high for judicial action while there was no reason to trust that the political process would deliver. In fact, in both instances the proceeding's main aim was precisely to lend the political process a helping hand in pursuing the public interests.
Throughout the 1950s and 1960s newly independent and nonaligned states concentrated their struggle against apartheid on the United Nations General Assembly (UNGA). It became increasingly obvious that the UNGA Resolutions lacked the necessary bite. The Security Council was held back by the United States and United Kingdom, both of whom continued to cater to strong business interests in South Africa.Footnote 27 According to Gross, “[i]f any realistic prospect had existed that members of the United Nations would repress, rather than merely condemn, South Africa's violations of its clear and present duties under the Mandate, the hazards, burdens and, above all, the time involved in litigation would have been avoided.”Footnote 28
The applicants in South West Africa did not expect a binding judgment to work miracles on South Africa, let alone spell the immediate end of apartheid. They hoped that the judgment would tip the United States and the United Kingdom towards changing their policies in the Security Council.Footnote 29
The stymied political process was also the applicant's obvious target in Nuclear Arms Race. Time and again had UNGA Resolutions unanimously found that all states have an obligation “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”Footnote 30 The Court's unanimous Nuclear Weapons Advisory Opinion affirmed this obligation in 1996.Footnote 31 In beautiful harmony has the UNGA since then adopted a yearly resolution that restates the Court's Opinion.Footnote 32 But neither the Resolutions nor the Court's Opinion have left a trace on the ground. UNGA Resolutions could not hinder the buildup of the apartheid regime in the 1950s and 60s, nor can they hide the fact that no negotiations on nuclear disarmament have taken place since the 1970s.
The Marshall Islands thus turned to the Court in support of the political process. When the 2016 judgment made clear that no help was forthcoming from the judiciary, the Marshall Islands again fell back on what was there before: Shortly after the judgment the UNGA adopted a resolution to convene in 2017 a “United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.”Footnote 33
African states did the same in 1966. Immediately after the judicial process failed to deliver the desired outcome, they again acted through the UNGA to terminate South Africa's mandate for South West Africa and to place the territory under UN trusteeship.Footnote 34 But it was entirely clear to everyone that South Africa would not comply.Footnote 35
Judges in both 1966 and 2016 were divided over the question of what the Court should do when laudable causes do not find effective recognition in political processes. According to the majority it is tough luck if politics fails to deliver. The laudable causes, in any event, were not theirs. In 1966, the majority was white. In 2016, it included all the judges from countries possessing nuclear weapons. According to the minority, however, it is precisely the role of the Court to step in and advance the general interest where the political process fails.Footnote 36 This follows from its understanding as the World Court and the UN's “principal judicial organ”.Footnote 37 If it does not live up to that role, it will dwindle into irrelevance.Footnote 38
After 1966, newly independent and nonaligned states turned their back to the Court. With the exception of the joint proceedings in North Sea Continental Shelf (Germany v. Denmark; Germany v. The Netherlands), no single case was filed before the Court from 1962 until 1971. To recall the flavor of the reactions to the 1966 judgment: According to a Liberian newspaper, the judgment was a “travesty of human rights. … [T]he Court by its infamous decision spits in the face of its applicant by saying ‘you had no right to come here’. What an insult!”Footnote 39 And the Sydney Morning Herald wrote that “[t]his judgment will convince many that the ICJ is indeed a ‘white man's court’.”Footnote 40 In response to a 1970 UN questionnaire to “Review the Role of the International Court of Justice,” the representative of Ghana to the UNGA replied that the Court would be in a much better position if it did not “reflect outmoded conservative thought reminiscent of imperialism.”Footnote 41
Targets for Critique—Don't Aim at Formalism
A progressive role for the Court to step in where political processes fail would suggest modes of interpretation that are guided by the law's object, its purpose, and by the principle of effectiveness. Unsurprisingly then a common critique from dissenting judges and scholars has been the Court's excessive formalism. Judge Tanaka (Japan) lamented the 1966 Judgment's “strict juristic formalism”Footnote 42 and, before he joined the court, Taslim O. Elias, bemoaned the “legalistic, restrictive and narrow” mode of reasoning.Footnote 43 Half a century later, Judge Bennouna (Morocco) wrote a dissent in Nuclear Arms Race that could have been directed at South West Africa just as well: “[H]ow can [the Court ]shelter behind purely formalistic considerations which both legal professionals and ordinary citizens would find difficult to understand, rather than contributing, as it should do, to peace through international law, which is the raison d’être of the Court [?]”Footnote 44
The same holds true for Judge Cançado Trindade (Brazil) and for Judge ad hoc Bedjaoui (Algeria), who believes that “today the most unsettling danger remains an excess of formalism.”Footnote 45 In their opinion it leads to a jurisprudence deprived of all relevance for the future and for humanity.Footnote 46
As disheartening as the Court's formalism may have been in 2016 as in 1966, it is not a strong reason behind anything and therefore not much of a danger either. Judge Bedjaoui knows this when he deplores how the majority's reasoning easily reveals that its drafters had made up their mind in advance.Footnote 47 Formalism, as other modes of reasoning, follows choices that have already been made. Judge Jessup wrote as much in his 1966 dissent: Methods of interpretation are “a cloak for a conclusion reached in other ways and not a guide to a correct conclusion.”Footnote 48
In Nuclear Arms Race Judge Bennouna put the revealing spotlight on Judge Abraham (France), the Court's tie-breaking President.Footnote 49 In Georgia v. Russian Federation (2011) Judge Abraham had favored the Court's earlier jurisprudence on determining the existence of a dispute—a jurisprudence which he praised as “strictly realistic and practical … free of all hints of formalism.”Footnote 50 In contrast to the narrow majority of the judges at the time he had wished to uphold the Court's jurisdiction. In 2016, he was at pains to explain why in his opinion there is no dispute in Nuclear Arms Race. He retreats into formalist reasoning, claiming that his hands are tied by the Court's clear jurisprudence over the five intervening years.Footnote 51
The mode of reasoning does not make the difference, judges and their preferences do. In the wake of the 1966 judgment newly independent and nonaligned states thus focused on the composition of the Court. By 1969, African states had won two seats (at the expense of Latin America and Asia) and only two of the judges voting with the majority in 1966 were still on the bench. The Court changed under the impact of decolonization, as did international law more generally.Footnote 52 Change always seems to be just around the corner. With regard to the ICJ, however, it is unlikely that the 2016 judgment will be part of developments of a similar magnitude as those of the 1960s and 70s.
Conclusions: So Close!
Thinking of historical events as accidents diffuses critique and responsibilities. Before joining the Court, Rosalyn Higgins wrote of the 1966 judgment as an aberration.Footnote 53 This is also how dissenting Judge Robinson thinks of the 2016 judgment.Footnote 54 But both judgments were carried by half of the judges. They can hardly be understood as slips of the pen. For newly independent and nonaligned states, the 1966 judgment was a confirmation of their view that the Court was a white man's Court for a white man's international legal order. Many observers will likewise see the 2016 judgment as symptomatic of the fact that great powers may do as they please while the weak suffer as they must.Footnote 55 Both judgments turn their onlookers into hard-nosed realists, at least for a moment.
The next moment one might again see that the judgments were so very close. What difference would it have made if the Court had decided otherwise in 1966 or 2016? According to John Dugard, the Court's 1966 judgment delayed the end of apartheid by some ten to fifteen years.Footnote 56 Of course, as atomic physicist Niels Bohr once said, predictions are difficult, especially about the future. Had the Court accepted its jurisdiction in Nuclear Arms Race, a number of countries stood ready to intervene on the side of the applicant under Article 63 ICJ Statute. As in South West Africa, nobody expected a favorable judgment in Nuclear Arms Race to do wonders. But perhaps it could have worked to shift balances of opinions and votes on issues such as the renewal of the Trident nuclear weapon programs in the United Kingdom. The 1966 and 2016 judgments should be remembered not as aberrations but for what they are: Simultaneous testimonies to the influence of power over justice and of the possibility that it could have been the other way around.
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