Municipal Courts’ Reception of ICJ Decisions
Oktawian Kuc, LL.M. (Harv.)
[email protected]
International Law Institute
University of Warsaw, Poland
The International Court of Justice is playing a profoundly significant
role in the international legal regime as the longest functioning
No. of identified permanent adjudication organ of the international community. It
Jurisdiction
judicial decisions “remains at the apex” of the international judicial world “with a rich
history, a universal subject-matter jurisdiction, and much
jurisprudence behind”. This jurisprudence has not only contributed
Australia
9
to peaceful development of international disputes, but also clarified
Canada
6
ambiguity of international law and supported its development.
China - Hong Kong
2
Surprisingly, not a lot of attention is given to the unique relationship
Colombia
3
or dialogue between the World Court and municipal courts. This
France
3
study on the reception of ICJ decisions by domestic adjudicators has
Germany
8
been designed to address this lacuna in the international legal
scholarship and fill the empirical gap in this regard.
Greece
1
Hungary
1
A municipal courts’ reception of ICJ decisions is, along their
India
1
enforcement, a form of reference to pronouncements of the World
Israel
5
Court by its national judicial counterparts. It concentrates on
Italy
9
supporting the reasoning of national courts in the cases with
Japan
1
international dimension or their fact-finding function in relation to
disputes already decided by ICJ. The notion similar to the reception
Latvia
2
is the enforcement of international decisions. The enforcement is
Morocco
3
aimed at securing any ICJ decision benefit for a judgment-creditor
Namibia
1
State or an interested third party with the utilization of municipal
Netherlands
5
judicial mechanisms and consequently institutionalized coercive
New Zealand
8
measures. This poster focuses only on the phenomenon of
Nigeria
1
reception.
Norway
2
For the purpose of the study, an ICJ decision is defined as any
Peru
1
formal pronouncement of “the principal judicial organ of the United
Philiphines
1
Nations”
or its chambers. This includes advisory opinions,
Poland
4
judgments on merits as well as jurisdiction and admissibility,
Sierra Leone
1
judgments rendered in first and any consequent phases of a case
Singapure
1
and also orders on provisional measures, but neither separate nor
Slovenia
1
dissenting opinions nor declarations of ICJ judges have been taken
South Africa
11
into account. Also orders having solely procedural character have
been excluded.
Spain
2
Switzerland
1
Similarly, municipal courts’ decisions shall be understood as
United Kingdom
28
majority rulings issued by any adjudicating body within national
United States
52
legal systems, both judicial and quasi-judicial. This notion embraces
Kosovo
1
of course trial courts of first instance, appellate courts, courts of
Turkish Cyprus
1
last resort of general jurisdiction, specialized courts: constitutional,
Total
176
administrative, claims court etc., and finally quasi-judicial bodies
with prerogatives to review administrative actions.
Types of references to ICJ decisions in identified municipal rulings
125
Authoritative evidence of international law
Authoritative treaty interpratation
29
Guidance in the field of international law sources
29
Evidence of facts
26
7
Explanation of international norm rationale
0
20
40
60
80
100
120
140
The survey proves that the reception of ICJ decisions by municipal courts is predominantly normative in
nature. First and foremost, national judges look upon judgments, orders and opinions of the Court to establish
scope and content of international norms. Thus, ICJ decisions are authoritative evidence of law – mainly
customary international rules and general principles of law. In quite a few situations it might be even argued
that some courts treat them as sources of international law, when excerpts from ICJ decisions or references
to them are sole bases for conclusions in national proceedings in regard to international law. Furthermore,
municipal courts refer to pronouncements of the Court for authoritative guidance in relation to treaty
interpretation. The ICJ decisions influence in an important manner the national judges perception of
international law in general and its sources in particular. In few instances, the justification of an international
rule establishment is also looked upon. Besides the normative dimension of the reception of the International
Court of Justice decisions, also factual determinations are referred to.
The important part of the inter-judicial dialogue between two legal regimes is the clarification of the status of
ICJ decisions in domestic legal order as well as polemic with results reached by the World Court. As far as the
effect of its judgments is concerned, most national courts consider respectfully those decisions on the basis of
judicial comity rather than any legal obligation. The Court determinations’ authority and persuasiveness not
their binding quality motivates the reception of ICJ decisions and this practice in universal. Some examples of
municipal courts’ assessment of the status of World Court’s rulings are presented in the middle of the poster.
Number of municipal courts’ decisions by decades in relation to ICJ decisions
rendered and ICJ decisions rendered discussing municipal rulings
120
In the course of the study, 176 municipal decisions have been identified, in which a reference to at least one ruling
of the International Court of Justice was made. These cases come from 32 jurisdictions: 30 States (including
multijurisdictional States as the UK) and 2 disputed territories. The distribution of cases among jurisdictions is
presented in the table above.
100
80
The collected domestic judicial decisions come from all inhabited continents. Most of them have been rendered
in Europe within 15 jurisdictions (69 rulings constituting 39,20 % of all cases) and North America only within 2
jurisdictions (58 rulings amounting to 32,95%). Nevertheless, national decisions from Africa, Asia and South
America are rather rare and correspond respectively to 9,66%, 5,68% and 2,27 % of all collected rulings. It also
needs to be stated that certain important State jurisdictions are absent in this study, including Argentina, Brazil,
China, Egypt, Indonesia, Mexico, Pakistan, Russia, or Turkey. Furthermore, the distribution of the identified
decisions, in which a reference to the jurisprudence of the International Court of Justice is present, among
different legal systems clearly indicates that civil law and mixed systems are underrepresented in the sample.
Identified municipal courts’ decisions
referring to the ICJ jurisprudence
by legal systems of the World
17
45
113
Common law system
Civil law system
Mixed system
60
40
20
0
1946-49
It is, therefore submitted, that certain major underrepresentations have
been identified during the process of collecting and analysing municipal
judicial decisions referring to ICJ decisions. Firstly, the tradition of
reporting cases is not widespread. Secondly, many – if not a majority - of
courts’ reports are not digitized making their screening unmanageable.
Thirdly, language skills play a key role in the process of case selection
and because of the author’s deficiencies in this regard, some significant
jurisdictions have not been taken into account. Finally, the selection was
based predominantly on available databases and indexes that of
themselves are not exhaustive.
1960-69
1970-79
1980-89
1990-99
2000-2009
2010-
Number of identified municipal courts' decisions
Number of cases concluded by ICJ
Until most recently, the phenomenon of municipal courts’ reception of the International Court of Justice
reasoning and conclusions was rather marginal. Beginning just in 2000, national adjudicators started on the
bigger scale noticing the ICJ jurisprudence and its significance for domestic proceedings involving questions of
international law.
1
Nevertheless, the collected material, in the opinion of the author, is impressive and more surprising in amount
that has been anticipated at the beginning of the study. This situation has enabled drawing some representative
and comprehensive conclusions concerning the reception of ICJ decisions on domestic level by judicial organs.
1950-59
Breard v. Green, 523 US 371 (1998); 2 Doe v. Nestle, S.A., 748 F.Supp.2d 1057 (C.D. Cal. 2010); 3 Hutchinson v. Newbury Magistrates Court, [2000]
EWHC QB 61; 4 Re Member of Parliament, ILDC 601 (HU 2003).; 5 Mara’abe v. Prime Minister of Israel, Supreme Court, Israel, Case no. HCJ 7957/04;
6 US v. Palestine Liberation Organization, 695 F.Supp. 1456 (S.D.N.Y. 1988); 7 German Consular Notification Case, Case no. 2 BvR 2115/01, ILDC 668
(DE 2006); 8 Vietnam Association for Victims of Agent Orange v. Dow Chemical Co., 517 F.3D 104 (2 Cir. 2008); 9 Repubblica Federale di Germania v.
Paolo Toldo, Court of Cassation, Italy, Case no. 14202/2008.