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Guest post - The Justiciability of International Disputes and International Law’s Functional Reading: Some Thoughts on Account of the ICJ’s Recent Judgment
In light of the recent ICJ decision on the Interpretation of the Interim Agreement between FYROM and Greece, I would like to note some things that are interesting regarding the justiciability of international disputes. Traditionally, the Court in its jurisprudence has appeared monolithic and cliché, in essence advocating for the justiciability of all disputes, with an emphasis on their legal character. The recent ICJ decision seems to consolidate a new approach.
I have argued that justiciability should be discerned as lato and stricto sensu. The former comprises factors external to the theme of the dispute, yet hindering its adjudication. Justiciability stricto sensu encompasses cases where a clash of legal fields, escorted by a certain political narrative, is embedded in the nature of the dispute or the matter in question before the Court. The clash between these different legal fields, and simultaneously of political and historical narratives, obliges the international judge to declare the non-justiciability of the issue. This, because international law – due to the absence of hierarchy between the various legal fields – does not offer the judge the tools to prioritize on one field over the other without the endorsement of one side’s political narrative, thus exposing the international judge to accusations of partisanship.
The Court’s advisory opinion on the Construction of a Wall in the Occupied Palestinian Territories raised such issues of justiciability stricto sensu. The barrier was annulled, due to the fact that part of it was erected to protect Israeli settlements. This presented a paradox. Under international humanitarian law the settlements are illegal, yet under human rights law, their residents are entitled to protection of their right to life.
This paradox leads to an impasse. The Court would either have had to declare the barrier illegal due to illegality of the settlements, but without addressing the human rights aspect of the case, or that aspect would have had to be also addressed and the barrier encircling settlements would have been approved. In that case though, the Court would have been prone to accusations of compromising its judicial integrity by “koshering” international illegality. Given such dilemma, the issue should have been proclaimed non-justiciable on stricto sensu grounds.
Tuned to such a non-justiciability note, the recent judgment is noteworthy for the importance it renders this time to lato sensu justiciability factors, such as that of propriety.
Importantly, Judge Xue raised the issue explicitly in her dissenting opinion. According to the Judge, the declaratory character of the Court’s judgment coupled with its possible adverse impact on the name issue negotiations between the FYROM and Greece, should had led the Court to refrain from exercising its jurisdiction for reasons of judicial propriety.
Judge Xue’s opinion should not be interpreted as a solitary voice, but as depicting a continuing trend amongst the Court’s judges. This trend can be discerned immediately after the Court’s opinion on the Construction of a Wall in the Occupied Palestinian Territories and has already been depicted in the course of the Court’s advisory function in the advisory opinion on Kosovo’s unilateral declaration of independence.
Thus, it seems that after the opinion on the Construction of a Wall in the Occupied Palestinian Territories, we are witnessing a consistent gradual shift in the Court’s jurisprudence on the issue of justiciability. This shift is being expressed in the Court’s readiness to pronounce non-justiciability on the grounds of existence of alternative political channels or on the propriety of adjudication. All these issues had been raised in 2004 by Israel, but had been accordingly refuted.
Although this new approach is mainly prevalent in minority opinions, such as those of Judges Bennouna and Skotnikov in the advisory opinion on Kosovo and Judge Xue in the current case, its deep entrenching may be interpreted as a possible future turn amongst the Court’s majority.
The second issue in the ICJ’s recent judgment that signals a breakthrough in international jurisprudence is the functional reading of international law provisions it endorses, even tacitly. The Court never states this explicitly, but the majority of the judges seemed to have taken into consideration the prospects of FYROM's door to membership of NATO and the European Union being kept open.
In this respect, Judge Xue in her dissenting opinion is more articulate about the judges’ deliberations. Writing as a voice of dissent she probably feels less bound by any majority opinion constraints, stating that it was clear that the issue before the Court was one of "no settlement, no invitation."
Judge Xue appears more doctrinal on the issue, in the sense that she views the requested adjudication as referring in concreto to NATO’s particular decision. Once the latter is sealed, sealed is also the fate of FYROM’s petition to the Court. For Judge Xue, the fact that the Court cannot change NATO’s decision is a reason for asserting the case’s non-justiciable character.
On the contrary, her colleagues chose to perceive FYROM’s request in a broader, future context, entailing the possibility that the country will opt to apply for membership to other organizations or to reapply to NATO itself. In this case, the Court’s judgment would be useful and thus the Court heard the case. Indeed, although officially NATO declared this is not the case, FYROM officials have already expressed the view that the Court’s pronouncement reopens the road to membership in the Organization.
If that is the case, the recent judgment forms a distinct example of the Court taking into consideration functional parameters, such as FYROM’s Euro-Atlantic future, before issuing its decision. This differs of course from a judge’s mere political and personal motives, which albeit existent, remain always in the subconscious world of the judicial decision.
The issue obtains additional significance should it be seen in the context of recent developments and tendencies in international courts and tribunals in favour of a functional reading of international legal instruments.
For example, in the case of the Palestinian declaration to the ICC, by which Palestine accepted the Court’s jurisdiction pursuant to article 12(3) of the Rome Statute, some prominent international lawyers suggest that the Prosecutor should adopt a functional reading of the provision’s “state” requirement and admit Palestine as a party to the Rome Statute, with no prejudice to the issue of statehood. The Prosecutor has not yet decided on the matter. Nevertheless, there are indications he favours such a functional reading. For example, when asked about the recent Palestinian bid for UN membership, he responded that should the UN recognize the Palestine entity as a “state”, their bid to the ICC would be successful.
According to the Rome Statute, the ICC cannot accept Palestinian statehood retroactively, as of the time of the filing of the Palestinian declaration. Fulfilment of the “state” requirement is examined at the time an entity declares its intention to accept the Court’s jurisdiction. Any developments after the Palestinian declaration, including a possible finding by the UN as to Palestinian statehood, are neutral and should not be taken into account by the ICC; it can only consider the question of Palestinian statehood ex tunc.
However, a functional reading of the Statute’s “state” requirement would allow the ICC to reflect on a UN ruling and accept the Palestinian declaration ex nunc. In that case, a successful Palestinian bid for UN membership would not act as the legal base for the Prosecutor’s pronouncement, but as a supporting platform for it. It would also indicate an evolution in the field of statehood.
A functional reading would mirror the ICC’s need to adjust to the new legal landscape of Palestinian statehood. At the same time, a functional approach would constitute the mechanism through which such an adjustment would take place. The Rome Statute provisions would not change, but the way they are perceived would; like in domestic jurisdictions, where the judicial interpretation of unamended legal provisions may change with the advent of years.
This in turn raises questions about the limits of such functional reading of international provisions. These limits are underlined particularly in legal fields like international criminal law, which constitutes the bastion of positivism.
The issue becomes more acute in the realms of international judicial bodies, where the judge, due to the responsibility he holds in adjudicating on a matter, has to provide a sufficient legal base in order to substantiate his stance. Such legal base is put into doubt if founded on functional grounds, which by definition tend to be more abstract and more policy-oriented due to their non-positivist nature.
In its recent judgment, the ICJ opened the Pandora Box of functionalism in international law. Yet, while paving a path, at the same time the Court did not pay heed to demarcate it. This is unfortunate. The task is now left to the judge of the future.