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Discretion to Decline to Exercise Jurisdiction

Published online by Cambridge University Press:  27 February 2017

Edward Gordon
Edward Gordon*
Affiliation:
Albany Law School, Union University
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Extract

The Nicaragua case raises anew long-unresolved questions about the circumstances in which the Court may or should decline to exercise its jurisdiction. It is far from self-evident, of course, that in the absence of a specific grant of discretionary authority the Court is entitled to abstain from judging the merits of a contentious case, once it is satisfied that its jurisdiction has been established. Its judgments, however, and some supportive scholarly writings, suggest variously that discretionary authority is inherent in the Court as a judicial institution; that it is to be inferred from language contained in Articles 36 and 38 of the Statute; that it is implicit in the nature of international law or the remedies available to the Court to fashion relief for violations of it; or that unless otherwise indicated it should be deemed implicit in, even coextensive with, express grants of jurisdiction. In this brief survey, I will suggest that as a general rule the discretionary authority of the Court derives principally from the political community’s tacit acceptance of the Court’s assertions of discretion; that this validation is ambiguous and tenuous, at best; and that it is in the institutional best interests of the Court to justify its exercise of discretion, in each instance, in a more candidly principled way than it has done in the past.

Type
Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits)
Information
American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 129 - 135
Copyright
Copyright © American Society of International Law 1987

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

2 See Nuclear Tests (Austl. v. Fr.; NZ v Fr.), 1974 ICJ Rep. 253, 321–22 (Judgment of Dec. 20) (Onyeama, Dillard, Jiménez de Aréchaga & Waldock, J. J., dissenting); see also 1 Rosenne, S., The Law and Practice of the International Court 308 (1965)Google Scholar.

3 Case concerning the Northern Cameroons (Cameroon v. UK), Preliminary Objections, 1963 ICJ Rep. 15, 29 (Judgment of Dec. 2); Nuclear Tests, 1974 ICJ Rep. at 259-60 (quoting Northern Cameroons).

4 Northern Cameroons, 1963 ICJ Rep. at 29.

5 See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) (in which Chief Justice Marshall said: “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given”). But see Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L. Rev. 543 (1985).

6 Nuclear Tests, 1974 ICJ Rep. at 271.

7 Rosenne has suggested that “dispute” is both the nucleus around which the concept “jurisdiction” is constructed and an expression of the object in connection with which the Court is empowered to make a judicial decision having binding force. 1 S. Rosenne, supra note 2, at 292 n.1. Thus viewed, “dispute” seems to be a core concept underlying and transcending all questions of jurisdiction, presumably including that of discretion to abstain from exercising it. For all practical purposes, this transforms “dispute” into a synonym for the always elusive wordconcept justiciability. But see text accompanying note 8 infra.

8 This is one of several matters taken up in the present article that I have considered at greater length and from a somewhat different perspective in “Legal Disputes” under Article 36(2) of the Statute, in The International Court of Justice at a Crossroads (L. F. Damrosch ed. 1987) [hereinafter cited as “Legal Disputes”], as well as, more tentatively, in an earlier article, Old Orthodoxies amid New Experiences: The South West Africa (Namibia) Litigation and the Uncertain Jurisprudence of the International Court of Justice, 1 Denver J. Int’l L. & Pol. 65 (1971).

9 See Doc. 913, IV/1/74(1), 13 UNCIO Docs. 381, 392 (1945).

10 1929 PCIJ, ser. A, No. 20, at 19 (Judgment of July 12).

11 1931 PCIJ, ser. A/B, No. 41 (Advisory Opinion of Sept. 5).

12 The Charter uses “dispute” in Articles 1, 2, 12, 32–38 and 52, only once in specific reference to matters coming before the Court. The Statute generally uses the word “case” when referring to a matter upon which the Court is called upon to render judgment. Other than in Article 38(1) and Article 36(2), it refers to a “dispute” only in the sixth paragraph of Article 36, when it says that in the event of a “dispute” as to whether the Court has jurisdiction, “the matter” shall be decided by the Court; and in Article 60, when it says that “in the event of a dispute as to the meaning or scope of [a] judgment, the Court shall construe it at the request of any party.” Neither reference seems to represent a coded reference to a concept transcending all other aspects of the Court’s jurisdiction.

Further evidence of the absence of any intention to invest “dispute” with a technical meaning is provided by the likelihood that in directing the Court to look to certain sources of international law in deciding “such disputes as are submitted to it,” Article 38(1) refers not only to a “dispute” submitted pursuant to Article 36(2) and to a “dispute” over the meaning or scope of one of the Court’s own judgments pursuant to Article 60, but also to a “case” or a “matter” submitted to it pursuant to Article 36(1), or, for that matter, to a request for an advisory opinion submitted pursuant to Article 65. This is one of the subjects taken up at greater length in “Legal Disputes,” supra note 8.

13 U.S. Const, art. III.

14 See, e.g., Estreicher & Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U.L. Rev. 681 (1984).

15 See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 21 (Judgment of May 24); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 433–35, paras. 92–95.

16 It might be argued that respect by the Court for national sovereign prerogatives—e.g., in regard to individual or collective self-defense—has a libertarian objective, in that it increases the likelihood that peaceful democratic states will find ways successfully to resist predatory incursions by hostile, antidemocratic neighbors. The Nicaragua case does not seem to have presented ideal circumstances for testing this line of reasoning.

17 The Judgment of the Court in 1966 in the South West Africa Cases may be mentioned in this respect.

18 Cf. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71, 114(1984).

19 See Aerial Incident of 27 July 1955 (Isr. v. Bulg.), 1959 ICJ Rep. 127, 142 (Judgment of May 26) (Lauterpacht, Wellington Koo & Spender, JJ., dissenting). Cf. Anglo-Iranian Oil Co. case (UK v. Iran) (jurisdiction), 1952 ICJ Rep. 93, 154-55 (Levi Carneiro.J., dissenting).

20 Lauterpacht, H., The Function of Law in the International Community 168 (1933)Google Scholar.

21 Id. at 170.

22 See generally Chafee, Z., Some Problems of Equity 1–102 (1950)Google Scholar.