As Professor Jackson noted, while authority means you have the right to do something, it does not guarantee that you have the capacity to do so. The International Court of Justice (ICJ), as the judicial body of the United Nations, has authority over UN member states. However, it’s capacity is limited. Although there are various modes of proving the ICJ’s jurisdiction to hear cases regarding international law, they lack an enforcement mechanism. I argue that, when it comes to matters requiring sanctions, judgments, etc., an institution’s capacity is only as great as its enforcement mechanism. A lack of enforcement mechanism, then, undermines the authority of the institution and only serves to reinforce state sovereignty. Further, I argue that states—as participants in and designers of the institution itself—protect their own sovereignty through the very construction of the ICJ.
Take for example, a case between State X and State Y brought to the ICJ. The Court has treaty-based jurisdiction. The ICJ sides with State Y, and, in its judgment, asserts that State X must pay retribution to State Y. The Court cannot force State X to do anything, so the disputing parties are left to essentially self-enforce any judgment. The ICJ’s relevancy, then, is quite immeasurable; though it retains the authority to make a judgment on the case, its capacity to do so is limited as it lacks any ability to ensure the judgment is carried out. Though the ICJ’s authority may be seen as a way to mitigate conflict which can arise from state sovereignty, its limited capacity actually reinforces state sovereignty, as either state in the case retains the right to refuse compliance, retaliate, etc.
Member states designed, participate in, and perpetuate the ineffective capacity of the ICJ, thereby covertly protecting their own sovereignty. The most prevalent example of this is that the UNSC has the ability to enforce ICJ judgments but, historically, has not done so. This suggests that the Security Council want to avoid impediments to state sovereignty (i.e. enforcement mechanisms), as this could affect their home-state if they are a party to the dispute, or could set a future precedent, putting their home-state’s sovereignty at potential risk. In this way, states preserve their sovereignty, as well as issues of power, territoriality, and security (all of which may be case-issues that the ICJ would preside over).
I never thought I would take such a realist-stance on a subject but analyzing the ICJ in this context is quite compelling to me. I struggle to think of any other compelling reason to explain why an institution’s capacity would be so obviously limited—and without objection—despite their authority.
Good tie in to our other class :-).
ReplyDeleteI think precedent is a key reason for lack of enforcement. The major powers don't want to do anything that might set themselves up to be on the wrong-side of a court ruling, and its enforcement, in the future. We're seeing some similar issues in the ICC reading this week as well. Major powers, maybe because of modern day norms, like the idea of justice and international judicial bodies, but they don't like them in practice.
This was one of the issues I grappled with when we did the debate and gave me a more pessimistic view of IOs than I originally had. Despite authority and jurisdiction, an institution like the ICJ is still at the mercy of power politics. I don't know how the international system can overcome this problem, but as long as it persists you have to question the legitimacy and real authority of these institutions.
I couldn’t agree more. I had used a similar example, the ICC, in support of my argument. When it comes to justice, while states agree to cooperate, sovereignty seems to prevail. I also agree with you on taking the realist stance on this topic. Realists’ argument that powerful states create institutions to exercise and perpetuate their influence, makes perfect sense in this instance. Where I would differ in my analysis though, is that democracies have different objectives from those of the non-Western hegemons. The United States, for instance, opposed the amendment to the ICC jurisdiction over the crime of aggression because of the “perceived uncertainty,” and I have to agree, as humanitarian interventions and military missions will not always be welcome in all states. This amendment could create obstacles to missions that are urgently needed. Russia’s leaders, on the other hand, would no longer be able to invade sovereign territories, however they would never be held responsible for their actions in Crimea and Georgia, as the amendment is not retroactive.
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