Document Type

Article

Publication Date

Fall 2011

Publication Source

Cornell International Law Journal

Abstract

The International Court of Justice — the global system's oldest and most venerable tribunal — has failed to meet its full potential. This is in large measure due to the requirement that the Court may only assert jurisdiction over states with their consent, which is often withheld. To help correct for this failure, this article proposes that the Court be given a referral jurisdiction. Referral jurisdiction would empower the Court to issue advisory opinions on interstate disputes without the requirement of state consent. Standing in the way of nonconsent-based jurisdiction, however, is the problem of the Gordian Knot: The world's most powerful countries who are best able to lead or block expansion of the Court's jurisdiction have historically perceived their advantage to lie more with political muscle than expanded judicial process. Today, their power to block is manifest in the ability of each of the permanent five members of the United Nations Security Council to veto amendments to the treaty creating the Court. This article, however, suggests that there is a solution to the Gordian Knot problem. It proposes a legal strategy that would allow the United Nations General Assembly to establish referral jurisdiction without a treaty amendment. Having cut the Gordian Knot, this article goes on to make the case for referral jurisdiction.

Specifically, it argues that (1) the proposal for referral jurisdiction is legal under the Charter of the United Nations, the Statute of the International Court of Justice, and other general principles of international law; (2) referral jurisdiction would further compliance with international law; and (3) its implementation would institutionally strengthen the Court. This article concludes by suggesting that the rise of many newly industrializing countries that may be willing to spearhead jurisdictional expansion portends new possibilities for cutting the Gordian Knot and, in the process, unleashing a promising era of global rule of law reform.

Inclusive pages

603-658

ISBN/ISSN

0010-8812

Document Version

Published Version

Comments

Document is made available for download by permission of the publisher. Permission documentation is on file.

Journal subscriptions can be purchased here.

Publisher

Cornell International Law Journal

Volume

44

Issue

3

Place of Publication

Ithaca, NY

Download

Share

COinS