Sample Research Paper On A Tedious Relationship: The Relationship Between The United States
And the International Court of Justice
After the Second World War, the United States and the International Court of Justice (ICJ) has maintained an awkward relationship with each other. The United States, for its part, adopts the primacy of the law in its own country, and to a certain extent, in the confines of the global community. In addition, the United States is one and continues to be one of the most active parties in various cases that have been bought before the Court (Murphy, 2008, p. 1).
The United States has made numerous appearances, more than any other nation. Nevertheless, it must be noted that the United States has never acquiesced to any decision of the Court that ran counter to American interests. For example, the United States refused to engage in any of the proceedings raised by Nicaragua in 1984, disengaged itself from mandatory jurisdiction of the Court in 1986, and as of recent times, removed itself from the jurisdiction of the Court over issues under the ambit of the Vienna Convention on Consular Relations (Council of Foreign Relations, 2014, p. 1).
The ICJ, successor to the Permanent Court of International Justice (PCIJ), is sanctioned by the UN to resolve conflicts between the more than 190 member States. The jurisdiction of the ICJ comes in three categories:”compulsory,” “special agreement,” and “treaty-based.” Of the 193 members of the United Nations, 70 of the members have acquiesced to submit to the mandatory jurisdiction of the Court. Here, it is understood that all international legal actions between member States can be submitted to the Court; however, for the Court to initiate proceedings, the parties to the conflict agree to be under the jurisdiction of the Court.
In addition, parties to disputes can come under the jurisdiction of the Court by way of “special agreement,” allowing them to be subjected to the jurisdiction of the Court only to resolve a specific issue; after this, these again will remove themselves from the jurisdiction of the Court (International Justice Resource Center, n.d., p. 1).
However, history bears out the fact that the United States never agreed to adopt the Covenant of the League of Nations; furthermore, the United States did not agree to adopt the separate policy that defined and established the PCIJ. Though the PCIJ had advocates in the United States, those from the realist and exceptionalist sectors argued that by subjecting the United States to the jurisdiction of the PCIJ would be significantly deleterious to American interests, and would damage American sovereignty.
Throughout the life span of the ICJ predecessor, from 1922 to 1945, the United States aggressively avoided participation in any case rendered to the Court, though the United States was represented on the Court. The United States joined the United Nations in 1945, becoming, ipso facto, a party to the law of the ICJ. Nevertheless, even within the UN, exceptionalists and realists were wont to reiterate their positions. Many posited that submitting to the jurisprudence of the ICJ and the UN would enslave the “free societies” of the States.
Moreover, the argument went further to state that the ICJ would displace the authority of the US Supreme Court regarding all of foreign conflicts that the United States may get embroiled in. However, the United States never completely embraced a global court that was mandated with far-reaching and unbridled powers. There are structural components geared to balance the motivation of States, inclusive of the US, to have an equitable, fixed judicial agency, and the desire of the international community to limit their vulnerability to the decision-culminating powers of the ICJ, and if exposed, to have their issues impartially heard and comprehended (Murphy, 2008, p. 19).
The withdrawal of the United States from the proceedings cultivated questions on the intent of the country to adhere to its commitments in the VCCR. It must be noted that the United States has long held to the principle of its non-adherence to the VCCR and the resulting consequences. The United States holds to the premise that Article 36 of the VCCR gives diminished protection guarantees for foreigners whose access to a consulate was rejected compared to those that are given to other nationals.
The disengagement of the United States from the ICJ is regarded as a major reversal of American foreign policy with regards to America’s participation in international conflict resolution systems, as the United States was one of the earliest and most active supporters of the mandatory conflict mechanisms to be used for infringements of the tenets of the VCCR. The immediate consequence of the US disengagement is that this constrained the participation of the US to initiate legal action against other States for infringements against American consul officials or American nationals in other countries. Stripping itself of the ‘Optional Protocol’ as a foundation for acquiring jurisdiction, the United States is highly unlikely to acquire jurisdiction over countries for infringements regarding ‘consular access rights’ or any tenet off consular law for that matter (Quigley, 2009, p. 264).
The function of the Court can hear two categories of cases: legal conflicts between member States and submitted to the Court for resolution and inquiries for consultative resolutions that have been given by the United Nation agencies and various dedicated agencies under the organization. In the disputes between States, it must be noted that only member States of the United Nations and other countries that have come participants to the Court’s jurisdiction and have come to accept that coverage can be participants in the resolutions of these cases.
The Court is well-equipped to hear cases if the conflicting States have acquiesced themselves to the jurisdiction of the Court. The State, being a signatory to the Charter of the United Nations, the member States holds that they will accept the jurisdiction and any decision that the Court may declare. Often times, States employ various tactics to delay or even restrict the Court from proceeding on the evaluation of the merits of the case.
These are traditionally conducted by claiming that the Court is bereft of jurisdiction or that the application for resolution cannot be considered before the Court. The issue is left for the Court to resolve; there are times that the parties to the case claim that the proceedings will impact on a legal point that the claimants are posing; here, these would ask that the Court refrain from hearing the case so as not to affect the points being raised by one or both of the claimants (International Court of Justice, n.d., p. 1).
The position of the United States, as essayed by the US Supreme Court and Department of State, shows that the continued rejection of the United States to be put under the jurisdiction of the ICJ carries serious ramifications. Not only will the United States be regarded as faulty on matters of law, but also as deceitful and abusing its position of supremacy to flaunt the law. It is held here that the United States must reform its position to bring the US into alignment with its obligations under international law. This would not only allow the US to protect its citizens abroad, but also to give credence to its positions in the area of international jurisprudence (Quigley, 2009, p. 304).
The United States here is on the proverbial ‘losing end’ of the argument in this light. US officials are sending the wrong signals to the global community that it demands universal acceptance of the international community of the tenets of the law, but it will only honor commitments that will further its interests. Here, US officials must work to bring the US credibility in its positions, not only in the challenges that the country has launched, but in the eyes of the global community as well.
Council of Foreign Relations (2014). “The United States and the ICJ.” Retrieved 7 January 2015 from <http://www.cfr.org/courts-and-tribunals/united-states-icj/p26905
International Court of Justice (n.d.) “How the Court works.” Retrieved 7 January 2015 from <http://www.icj-cij.org/court/index.php?p1=1&p2=6
International Justice Resource Center (n.d). “International Court of Justice.” Retrieved 7 January 2015 from < http://www.ijrcenter.org/universal-tribunals-treaty-bodies-and-rapporteurs/international-court-of-justice/
Murphy, S. D (2008). “The United States and the International Court of Justice: Coping with antimonies.” Retrieved 7 January 2015 from < http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1902&context=faculty_publications
Quigley, J. (2009). The United States’ withdrawal from International Court of Justice jurisdiction in consular cases: reasons and consequences. Duke Journal of Comparative and International Law Volume 19 pp. 263-305