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The Successes and Limitations

of International Law and the
International Court of Justice
a
Keith Suter
a
International Law Association , NSW, 2001, Australia
Published online: 08 Sep 2010.

To cite this article: Keith Suter (2004) The Successes and Limitations of International
Law and the International Court of Justice, Medicine, Conflict and Survival, 20:4,
344-354, DOI: 10.1080/1362369042000285973

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 The Successes and Limitations of International
Law and the International Court of Justice
KEITH SUTER

International Law Association, NSW 2001, Australia

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The first two sections of this article deal with the irony that international law has
severe limitations, yet it also has a good record for compliance. The third section
introduces the International Court of Justice (ICJ), and the fourth section deals
specifically with the limitations of the ICJ. The article concludes with some ideas for
action. Its main point is that international law is often a neglected topic, even by non-
governmental organisations (NGOs). International law needs to be brought in from
the cold, and there should be more support from the NGO community for the ICJ.

KEYWORDS International Court of Justice International law Sovereignty

The Limitations of International Law

‘International law’ is the system of law that regulates the relations between
countries. With the increase of international organisations (such as the
United Nations and the European Union), international law also regulates
the relations between those organisations.
The most obvious limitation of international law is the lack of an
international ‘sovereign’ – some form of international government. ‘Law’ in
domestic terms is traditionally viewed as a set of commands backed up by
threats, such as the law against murder that carries the threat of a long
prison sentence. Domestic national or local laws (both of which are called
‘municipal law’) have a clear set of rules created by a parliament or congress,
and police forces, courts and prisons to ensure compliance.
International law is different from municipal criminal law. The rules are
often unclear, there is no international parliament or congress, no
international police force (INTERPOL is an information-sharing organisa-
tion rather than an enforcement one), the international courts are weaker
than domestic courts, and there is hardly any system to enforce compliance
with judicial decisions.
Second, international law is often out of date and tends to be Euro-
centred. These twin matters are derived from the evolution of international
law. Because there has not been an international government, there has been
no central authority to ensure that international law is up to date.

MEDICINE, CONFLICT AND SURVIVAL, VOL. 20, NO. 4, 344 – 354 (2004)
ISSN 1362-3699 print
DOI: 10.1080/1362369042000285973 # 2004 Taylor & Francis Ltd.
 INTERNATIONAL LAW AND THE INTERNATIONAL COURT OF JUSTICE 345

International law has evolved haphazardly and has reflected the power of
the world’s main countries (until the middle of last century, they have been
European) to enforce their thinking on the rest of the world.
An example of this is the width of the territorial sea: the strip of water
immediately off the coast in which the laws of the coastal country applies.
Until recently, Britain and most of the rest of the world took that width to
be three miles. Since the period of European global expansion beginning in
the late fifteenth century, the world’s most powerful countries have been
major maritime ones. They wanted a narrow territorial sea so as to give
their vessels the maximum ‘freedom of the seas’. In 1702, the Dutch jurist
Cornelius van Bynkershoek calculated that a cannon could fire a ball out
to three miles and this was therefore the maximum distance that a
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government could exert control off its shore. This remained the most
commonly accepted distance until the most recent UN Law of the Sea
Conference (which ran for most of the 1970s and concluded in 1982). The
distance is now 12 miles. The pressure to change it came from newly
independent countries that do not have large ocean-going fleets but which
have short-range fishing fleets which want to protect their own fishing
grounds.
The haphazard growth of international law may also be seen in the
issues it deals with. Because there has been no deliberate project to create
a global legal order, the matters covered by international law have been
those requiring immediate action, such as the obligations to execute
maritime pirates as the ‘enemies of humankind’ (irrespective of whether
or not they have attacked your own shipping) and to protect foreign
diplomats on official business in your country. As a new problem arose,
so an attempt was made to deal with it. The first project to draw
together a diverse range of government customs (to ‘codify’ them) and to
develop a branch of international law was probably the 1864 Geneva
Convention on the protection of war victims. This was done in the first
instance by a non-governmental organisation (NGO) (which became the
International Committee of the Red Cross), rather than by governments.
The main drive for the codification and progressive development of
international law has come about as a result of the creation of the UN in
1945.
The slow and unplanned evolution of international law has been another
reflection of the power of national governments. They grudgingly negotiate
a treaty only when they have to. They like to see themselves as the masters
of their own destiny, and it is only when they see that there is no alternative
but to have a treaty that they will negotiate one. Unfortunately for them, the
world is becoming increasingly interdependent and so there is a growing
need for treaties. More treaties between governments are now adopted than
ever before.
A third limitation of international law arises out of the way that,
ironically, a law works best when there is no need for it. In other words,
 346 KEITH SUTER

there is a set of shared assumptions that means that a law is internalised by

individuals. For example, a driver in an isolated part of Britain will tend to
follow the road traffic rules even though there is no police force around
because the driver has internalised the rules to such an extent that they are
an automatic part of that person’s behaviour.
There is no set of internalised international norms. But the globe may be
slowly evolving towards such a set of norms. This is the basic assumption of
internationally-minded NGOs. For example, there is a growing acceptance
of the ideas contained in the 1948 Universal Declaration of Human Rights,
and so there is a slowly evolving international human rights regime. But the
world at present contains many conflicting views. A disturbing trend is the
growth of religious fundamentalism. Fundamentalists define themselves on
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the basis of what separates them from the rest of the world – rather than on
what unites all people. This undermines the creation of an international set
of norms to be followed by all humans in all countries.
International law is, then, still slowly evolving. Some principles are
centuries – if not thousands of years – old, such as those on pirates and
diplomats already cited. Only in the last half century has there been such an
interest in developing treaties that bind governments on an increasing range
of issues. There is a clear trend towards the growth of international law in
both scope and depth, but it has a long way to go before it has universal
acceptance by all governments.

Why is International Law Followed?

Given such a dismal overview of international law, it could be asked: why is
international law followed at all? Ironically, international law has a good
record for compliance.
The mass media tend to focus on examples where international law is
broken, such as Iraq’s August 1990 invasion of Kuwait, and assume that
chaos is the international norm. But when a country’s law of murder is
broken, no one claims that somehow there is no law against murder or that
it is pointless having such a law – instead, attention is given to seeing what
else needs to be done to make that law more effective and to track down the
criminal in the meantime.
If international law did not exist, we would notice it immediately. Our
letters could not be sent overseas, we could not fly or sail overseas, we
would be unable to telephone overseas, our radios and televisions
transmissions would be chaotically jammed by overseas broadcasts, and
we would not be able to export or import goods. There would be
international chaos.
In fact, a great deal of international law is working a great deal of the
time. Indeed, we take it for granted. One reason for all this progress is that
international law is now largely a matter of specific treaties which
governments have a say in developing. Thus, international law has a
 INTERNATIONAL LAW AND THE INTERNATIONAL COURT OF JUSTICE 347

strength which municipal law does not have: the governments to be bound
by it have a say in its creation and can decide whether or not to be bound by
it. Municipal law, by contrast, is decided by a parliament or congress; a
person may like to smoke, for example, but they have no choice but to
accept a law banning smoking in public places. Of course, the disadvantage
of this method of creating international law is that the development of a
treaty can be hindered by the opposition of a country (for example, the Bush
Administration’s opposition to many new treaties, such as the Rome Treaty
creating the International Criminal Court and the Kyoto Protocol on
climate change).
Second, the obligations under international law are not a great burden
which governments resent. The obligations arise out of a common need for a
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treaty to govern arrangements over a common problem. International law

works because it is in the interests of governments to have it working. In
other words, the common perception of law – as a command backed up by
threats – is now inadequate. Law is not only coercive and focused on criminal
behaviour, it is also facilitates co-operation. For example, it is not a criminal
offence in Britain to die without making a will. But there are laws regarding
wills to help me determine who will get my property on my death. The laws
are there to help me – and not just to punish me if I break them. I can die
without making a will if I wish or I can use the law to help me make a will.
International law is of the same order: it is establishing, on a growing range
of topics, sets of rules to help governments co-operate with each other.
Third, governments do not like to be seen breaking a law; they are very
concerned about their ‘image’. Governments go to great lengths to explain
how their actions are justified. A government that gets the reputation for
breaking the law in one area often gets the reputation for being unreliable
and so other governments become reluctant to have dealings with it, such as
providing foreign investment.
This represents a change from the past. The ‘divine right of kings’
permitted rulers to do as they wished. Rulers now realise that they are
operating in an interdependent world where there is limited room for
manoeuvre. International co-operation – rather than isolation – is a key
factor for economic and social development. A good reputation makes a
country more attractive to foreign interests.
Finally, there is the human dimension. Humans in all societies are
accustomed to working within rules. The rules may vary from one society to
another, but all societies agree on the need for some rules. This rule-abiding
mentality is carried over into those matters that have international
implications. If a problem arises, there is an automatic response to check
on what are the international rules, rather than to assume that there are no
rules or that there is no need to look for them.
International law therefore has a greater rate of compliance than might
first be thought. Despite indications by newspaper headlines, as already
noted, behind the scenes, out of the public eye, many treaties are working
 348 KEITH SUTER

each day all day. The world is slowly being knitted together by a network of
treaties.

The International Court of Justice

The roots of the International Court of Justice (ICJ) go back to an era – at
the beginning of the nineteenth century – when visionaries believed that war
could be outlawed and that governments could settle their disputes by using
an international court. This vision is still a long way from reality.
In 1899 the Russian Tsar convened The Hague Peace Conference. He had
been presented with a dilemma: he wanted to expand domestic social
welfare programmes (to undercut support for left-wing republican move-
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ments in Russia) but could not afford to do so while also maintaining high
military expenditure. Therefore, he hoped for an international peace
conference to ban war and so limit the need for military expenditure. That
grand aim failed, but the conference did lead to various small ways of
regulating how international war was fought.
One of the treaties was the Hague Convention for the Peaceful
Settlement of International Disputes. Countries that agreed to be bound by
that treaty agreed to settle their disputes by peaceful means, such as
through the new Permanent Court of Arbitration. The Permanent Court of
International Justice (PCIJ) was created in 1920 alongside the League of
Nations. Between 1922 and 1940 it dealt with 29 contentious cases
brought to it by countries, and it gave 28 Advisory Opinions to the
Council of the League of Nations.
During World War II thought was given to a new League and a new
international court. The ICJ Statute forms part of the UN Charter so that
a member of the UN automatically becomes a member of the ICJ. The
court still has the same two main tasks as the PCIJ. First, it handles
contentious cases brought to it by countries that have accepted its
jurisdiction. Its workload has varied. It was quite busy between 1946 and
about 1966. Then its work tailed off in the 1970s. Communist countries
and Third World countries boycotted it as a club for rich western
countries. Since the late 1980s it has been busier than ever before (and
much busier than the PCIJ ever was). Countries have now found greater
use for it; ironically about a third of recent cases have been disputes
between African countries. As of April 2004, the ICJ had delivered 79
judgements since 1946, dealing with such matters as land frontiers and
maritime boundaries, territorial sovereignty, the non-use of force, non-
interference in the internal affairs of countries, diplomatic relations,
hostage-taking, the right of asylum, nationality, rights of passage and
economic rights.1
The second task of the ICJ is to give Advisory Opinions to the main UN
institutions. These Opinions are not binding on the UN institutions that
ask for them – and no country is bound to take notice of any Opinion.
 INTERNATIONAL LAW AND THE INTERNATIONAL COURT OF JUSTICE 349

Since 1946, the ICJ has given 24 Advisory Opinions, concerning such
matters as admission to UN membership, reparation for injuries suffered in
the service of the UN, the territorial status of South-West Africa (Namibia)
and Western Sahara, payments for UN operations, status of UN human
rights rapporteurs, and the legality of the threat or use of nuclear
weapons.
The ICJ is composed of 15 judges elected to nine-year terms of office
by the UN General Assembly and Security Council sitting independently
of each other. It may not include more than one judge of any nationality.
Judges serve in their personal capacity and do not represent their
governments. Britain’s Dame Rosalyn Higgins QC is the first female
judge.
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Limitations of the ICJ

The ICJ has made a great deal of progress. It has managed to survive all the
ideological struggles of the Cold War and the winding up of colonies. It has
a renewed sense of relevance – and a busy workload to prove it. In April
2004, the ICJ had 21 cases pending. It has lasted twice as long as the PCIJ
and (barring an accidental World War III) there are no signs of its demise.
But the ICJ is a long way from having the primary role in settling
international disputes that visionaries had for an international court a
century ago. There are six limitations: two are of a general nature and four
relate to the ICJ in particular.
First, there is a lack of a common global philosophy underpinning respect
for one system of international law. The distant roots of the ICJ go back to
disputes between the United Kingdom and the United States in the
eighteenth and nineteenth centuries, such as the 1794 Jay Treaty which
created a commission to settle disputes between both countries and then the
1872 settlement of legal disputes arising out of the role of the UK in the
1861–65 American Civil War. The details of these matters are not as
important, in this context, as the common philosophy they manifested: that
disputes should be settled peacefully. This was then taken up by the
(western) visionaries, a century ago, who wanted a permanent international
court which would implement one common system of international law.
There really was a belief a century ago – however naı̈ve it may seem today –
that the twentieth century would be the world’s greatest century, with
increasing peace and prosperity for all. An international court fitted that
optimistic mindset. Law and order was flourishing at home, why could it not
also do so overseas?
The 1914–18 World War shattered that western optimism. Then
communist governments after 1917 argued that international law was a
tool of capitalist imperialists and should be boycotted. Dictators from the
1930s onwards, notably Hitler and Mussolini, also had no time for an
international court because they thought that military force could settle all
 350 KEITH SUTER

international problems. Meanwhile, emerging new countries after 1945,

freed from colonialism, resented western values and so also ignored the ICJ
as a tool of western governments.
An aspect of how naı̈ve people (particularly in the internationally-
minded NGOs) can be is the assumption that somehow the UN is above
politics. In fact, it is among the most political of the world’s institutions.
For example, there is the assumption that national governments will act
for the long-term common global good rather than for narrow
nationalistic self-interest. Many NGOs may think in those terms, but
governments do not. In fact, governments act almost entirely out of
narrow nationalistic self-interest, which is often in terms of short-term
immediate gain, with little heed for tomorrow. If the world’s governments
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were more sensible, high-minded and visionary this journal would have far
fewer issues to examine, such as war, the exhaustion of natural resources
and pollution of the environment.
What all this means for the ICJ is that it is operating in a very hostile
international environment. Instead of complaining about how little it has
achieved, there should be a sense of wonder that it has managed to be
created at all and that it has operated for so long.
Second, there is the impact of national sovereignty. Many governments
have been unwilling to accept that the ICJ has an automatic right to hear
cases brought against them (‘compulsory jurisdiction’). According to the
basic principles of international law and national sovereignty, govern-
ments cannot be forced into accepting international obligations against
their will. Therefore, although 191 countries are members of the ICJ,
they do not necessarily accept its jurisdiction and so membership of the
UN and ICJ does not give the ICJ automatic jurisdiction over every
member-state. Less than half of the UN member states accept its
jurisdiction.
There are times when a country finds a use for the ICJ and others when it
does not. For example, in the mid-1970s, Australia led the ICJ case against
French nuclear testing in the South Pacific. France said that nuclear testing
was a matter of national security and so did not accept that the ICJ had the
right to interfere in its nuclear testing programme. It boycotted the ICJ case
brought by Australia. Fiji and New Zealand (although coincidentally it
stopped testing in the atmosphere). Currently Australia is embroiled in a
dispute with the new country of East Timor over dividing up the oil and
natural gas resources in the seabed between both countries. On 22 March
2002, Australia notified the ICJ that it no longer accepted the jurisdiction of
the ICJ on maritime boundary disputes, and in effect will boycott any
hearing that East Timor may bring against it.
Third, only nation-states can be parties to an ICJ case. This means that
only countries can bring a case and only countries can be defendants. In
Australia, for example, there are occasionally statements that Aboriginal
groups will take Australia to the ICJ because they disagree with a
 INTERNATIONAL LAW AND THE INTERNATIONAL COURT OF JUSTICE 351

government policy. They cannot. Particular ethnic groups and indigenous

peoples have no standing in their own right at the ICJ.
Incidentally, the limitation of the ICJ to affairs between nation-states is a
reason for the creation of the new International Criminal Court (ICC). The
ICC will hear cases brought against particular individuals accused of
committing particular crimes. The ICC, also based in The Hague, is
completely separate from the ICJ.
Similarly, a country cannot take a non-nation-state entity to the ICJ. The
most obvious example of such an entity is a transnational corporation
(TNC) – although it could try to take to the ICJ the country which has the
TNC headquarters on its territory. This is now a major limitation when it is
recalled just how much international economics and international politics
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are affected for good or ill by transnational corporations. Some TNCs have
an annual turnover greater than the annual gross national products of some
countries. They are a major factor in influencing public consumption tastes.
Today’s world is much more complicated than that of the PCIJ in 1922.
There were hardly any TNCs in existence in the 1920s. Now they are major
players in the international system.
Another form of non-state entity is the international NGO. Some NGOs
(such as Amnesty International, Greenpeace and International Physicians
for the Prevention of Nuclear War) are also major players in the
international system. The creation of the new ICC itself is an example of
this impact. Some NGOs were major campaigners (such as the World
Federalist Movement) for an ICC, and in terms of creating this new
international institution some NGOs were more important than most
governments, which were willing to let those NGOs do the work. But
NGOs cannot bring cases at the ICJ and no NGO can be brought before
the ICJ.
Fourth, there is no international enforcement system. Once an ICJ
decision is made, there is no automatic ‘police force’ to follow it up. The
matter could be referred to the UN Security Council, but here it would be
vulnerable to the veto system of the five permanent members. For example,
in the 1980s Nicaragua took the United States to the ICJ over the mining of
its harbours. When the US realised that the case was going badly, it walked
out of the ICJ and then vetoed attempts by the UN Security Council to
enforce the ICJ decision.
Fifth, not every dispute may be suitable for handling by an international
court system. An example concerns the Suez Canal in the late 1950s, when
Egypt was refusing use of the canal to ships trading with Israel. The US was
then on good terms with both Israel and Egypt, and urged both to take the
dispute to the ICJ, but both refused since the ICJ would give a clear decision
and neither side wanted to risk a clear judgement against it (governments
sometimes prefer a blurred result).
As at April 2004, the ICJ had been asked by the UN General Assembly
for an Advisory Opinion on the legal consequences of the construction of
 352 KEITH SUTER

the Israeli ‘security fence’ in the occupied Palestinian Territory. Israel

claimed that the ‘fence’ was designed to reduce the number of terrorist
attacks that had become more common since the collapse of the Oslo
Peace Process/Camp David conference in September 2000. By contrast,
the Palestinian Liberation Organisation claimed that the ‘fence’ con-
stituted an illegal ‘land grab’ by Israel by infringing upon the people’s
freedom of movement and economic well-being. It is hard to see what
will be gained from the Advisory Opinion. Israel and the PLO are so
politically divided that the Advisory Opinion (whatever it says) will only
inflame passions on one side or the other. International law can be a very
blunt instrument.
Finally, there are problems over the procedural aspects of the ICJ, such as
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evidence. In the municipal legal systems, the lower courts deal with facts
(what actually happened?) and the higher (appellate) courts deal with
matters of interpretation of the law and in ensuring due process. The ICJ has
to deal with both. Compared with the evolution of some municipal legal
systems that have evolved over the centuries (such as England’s), the ICJ
system is still new and unsophisticated.
ICJ judges are often appointed with a national appellate court, academic
or government background, and an interest in treaty creation (which is
useful for appellate work). But they may have limited experience in the
work of lower courts in sifting evidence. There is an assumption that
governments provide evidence honestly, and so the ICJ sees its task as
weighing up the legal arguments of both sides. But there is a risk that the
evidence may be accidentally or deliberately false. Finally, ICJ judges are
drawn from all over the world, so there may also be cultural differences in
how the evidence is interpreted.
To sum up, most of the world’s flourishing national legal systems have
evolved by trial and error (so to speak) over the centuries. The English
system (which is followed in many countries around the world, including
Australia) is a good example of how a system has become stronger as it has
evolved. The ICJ, by contrast, is a mere infant compared with that mature
legal system. Internationally-minded NGOs could argue that humankind is
gradually evolving towards a one-world system of international law and
practice but it will take time for a fully mature system to evolve – as it has
taken time for the English system to evolve.

Recommendations
International law in general and the ICJ in particular need to be brought in
from the cold. For example, the UN Decade of International Law came and
went with little impact. This was proclaimed by the UN General Assembly
to cover the period 1990–99 (up to the 100th anniversary of the first Hague
Peace Conference). In keeping with the way that international law itself is
neglected, little publicity was given to this Decade. Even natural supporters
 INTERNATIONAL LAW AND THE INTERNATIONAL COURT OF JUSTICE 353

of international law, such as UN Associations, failed to make the most of the

Decade, for example, by making it the basis of co-operation with
educational bodies and law firms in exploring ways of generating greater
respect for international law.
I make three proposals. First, there should be more attention to
international law. International law is a neglected subject. It is neglected in
academic institutions, such as university courses, where it is on the fringe
of both law and political science. Indeed, it is now possible (given the
large range of ‘optional courses’) for students to graduate in law or
international relations without having any systematic teaching in interna-
tional law.
International law is also neglected by NGOs. For example, environmental
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or human rights NGOs may campaign on particular treaties but few NGOs
are campaigning generally for the codification and progressive development
of international law. Even many UN Associations have neglected this
matter.
Second, there should be a campaign to encourage governments to accept
the compulsory jurisdiction of the ICJ. This should be part of a general
concern by citizens to expect a better standard of international behaviour
from their governments. There needs to be a general monitoring system by
NGOs on how governments are living up to – or failing to live up to – their
international obligations.
Third, because every international dispute may not be suitable for
settlement by the ICJ, greater attention should also be given to other
peaceful ways of settling disputes, such as mediation. The overall issue of
the peaceful settlement of international disputes is a neglected subject.
History is often written as the biography of generals and accounts of battles.
Work done in settling disputes without the use of force is often overlooked,
and so people grow up believing that war is the only way to settle disputes.
For example, Argentina has been involved in disputes over two sets of
islands in the South Atlantic. Most people know of one dispute (in 1982
with the UK over the Falklands/Malvinas) but very few are aware of the
other (with Chile over the Beagle Channel). The latter was settled by a
mediating team sent in by the current Pope. This outbreak of peace was
ignored by the mass media. War is covered by the mass media but peace is
not. This concern about the lack of ‘equal opportunity’ for peace should
stimulate campaigns for the introduction of peace studies and conflict
resolution training in schools and universities.
In conclusion, this is a very exciting era for international law. Although it
has old roots, its period of greatest growth has come only in the last half-
century or so, reflecting the increasing interdependence of the world. Even
governments grudgingly realise that international law is essential to facilitate
global co-operation. It is necessary that there is more public education on its
importance, in order to create a greater public expectation that more use
will be made of international law and the ICJ.
 354 KEITH SUTER

Acknowledgements
This article was based on a lecture to the Annual Conference of the Legal
Studies Association of New South Wales, Sydney, 2 April 2004.

Reference
1. International Court of Justice. At: 5 http://www.icj-cij.org 4 .
(Accepted 28 June 2004)

Keith Suter is an economic and social commentator, strategic planner, conference

speaker, author and broadcaster. He is a Professional Fellow with the Futures
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Foundation Australia, and Consultant on Social Policy at Wesley Mission, Sydney.

He is also Chairperson, International Humanitarian Law Committee of Australian
Red Cross (NSW), Chairperson, International Commission of Jurists (NSW) and
Director of Studies, International Law Association (Australian Branch). Between
1978 and 1999 he was at various times the national and state president of the United
Nations Association of Australia and in 1999 he was made a Life Member of the UN
Association. In 1986: International Year of Peace, he was awarded the Australian
Government’s Peace Medal. In 1994, he was voted ‘Australian Communicator of the
Year’.

Correspondence: GPO Box 4878, Sydney, NSW 2001, Australia