In today’s extremely interconnected world, the notion of justice is becoming increasingly globalized. Rather than the individual sovereignty of a nation denoting what is or is not politically, socially, or morally permissible, ethical standards for state behavior have been elevated onto a shared platform, where criticism is drawn from all corners of the world. Institutions such as the United Nations, International Criminal Court (ICC), and the International Court of Justice (ICJ), now serve as overarching checks against power abuses for anything from environmentally hazardous initiatives to crimes against humanity.
However, these international institutions are constantly at odds with the still-prominent value of national sovereignty. While they are regarded as the world’s supreme organizations, their supposed power is undermined by nations’ decisions to simply ignore their suggestions and edicts or remove themselves from international jurisdiction, as Australia did in 2002 to escape compulsory rulings in major maritime disputes. Since these institutions’ inception, they have represented ultimate guides for nations to look to and, in theory, follow; yet, this non-binding dynamic is also their fundamental downfall. The United Nations, the ICC, and the ICJ all revolve around mere suggestions, advisory opinions, or investigations — decidedly flexible language without the concrete enforcement power to meaningfully change state behavior.
This weakness is most problematic when applied to active international conflicts, which involve abuses of human rights, crimes against humanity, terrorism, and disruption of international peace—developments all antithetical to the core values and missions of supranational justice. Since any judgment put forward by the ICJ is never legally binding, the institution has no authority to physically intervene in an international dispute, even when there are high levels of violence. This limitation is especially concerning when conflicts last for extended periods of time and are unlikely to be resolved by only the two involved countries without international aid. Conversely, such an exogenous intervention to settle an internal dispute would be questionable, infringing upon the sovereignty of both implicated nations. As such, when the conflict is between two developing countries, international intercession can reinforce the historical characterization of the Global North as politically and morally superior, hiding imperialistic tendencies behind the mask of cooperative international aid. However, the complexity of intervention also implicates significant Western powers — such as the United States and the United Kingdom — which are regularly intertwined with conflicts in the Global South through funding or political support, or as primary actors. Again, for these powers and the nations with which they choose to partner, autonomy is a core concern.
With physical interference almost impossible without extending the powers of international institutions and violating national sovereignty, the ICJ is left to work with what it has: advisory opinions following independent investigations. Though it seems unlikely that suggestions to at-conflict nations will fundamentally resolve decades-long wars or dismantle apartheid systems, these ICJ findings can have an effect far beyond the scope of the parties in question. For example, these advisory opinions can influence the aforementioned Western superpowers that contribute to sustaining these conflicts. History has shown that ICJ rulings have swayed major players and ultimately impacted on-the-ground realities and enacted global change.
South African Occupation of Namibia
Namibia’s occupation by South Africa started in 1915, and it had been ongoing for 55 years when the ICJ produced an advisory opinion that deemed South Africa’s presence illegal. Up until then, the United Kingdom and United States had used their veto powers in the UN Security Council to support South African occupation, preventing the imposition of mandatory economic sanctions against South Africa. They argued that such sanctions would be ineffective and potentially harmful to the economies of neighboring countries. Since two powerful countries possessed this invaluable veto mechanism, the fate of the Namibian people was not in their own hands. In 1971, the ICJ called for South Africa to withdraw its administration immediately and for Member States of the United Nations to recognize the illegality of the South African occupation in Namibia. The ruling maintained that South Africa’s apartheid policies for Namibia were illegal under international law. Moreover, it emphasized the severity of the colonial abuse of power on the oppressed Namibians; it highlighted the resulting human rights abuses, such as discrimination and forced labor and centered the rights of the Namibian people to self-determination and independence.
Following the advisory opinion, international pressure mounted. As the ICJ instructed states to refrain from sending aid or other assistance to South Africa, both the United States and the United Kingdom were backed into a corner. The legal opinion played an important role in raising awareness about the illegality of South Africa’s actions and in building international support for the end of the apartheid regime. As such, the United States and the United Kingdom were persuaded to stop vetoing sanctions against South Africa, which contributed critically to the end of apartheid in South Africa and the transition to a democratic government in 1994. Moreover, Namibia attained its hard-won independence in 1990.
Notably, the ICJ did not directly impose rulings on either South Africa or Namibia, but rather contributed significantly to global discourse and escalated international pressure for change.
Chagos Marine Protected Area
Unlike with South Africa, which indirectly involved Western superpowers, the case of the Chagos Marine Protected Area involved a sovereignty and maritime dispute between Mauritius and the United Kingdom. The Chagos Archipelago is a group of islands in the Indian Ocean that was separated from Mauritius by the United Kingdom in the mid-1960s, in order to establish a US military base on one of its largest islands. During this process, the Chagossians from the islands were forcefully evicted from their rightful homes, sent to either Mauritius or Seychelles, and they consequently faced high levels of poverty and discrimination.
In 2017, Mauritius looked to the ICJ for reparations. It challenged the historically accepted notion that the United Kingdom had any sovereignty over the Chagos Archipelago, arguing that the UK separation was illegal under international law. According to Mauritius, the United Kingdom had violated the principle of self-determination, the right to territorial integrity, and its obligations under the African Charter on Human and Peoples’ Rights — all values and principles enshrined in the UN Charter and fundamental to international peacekeeping. Moreover, Mauritius identified the fundamental power imbalance between the former colonial empire and itself, as an impoverished island nation, claiming that it had been coerced into agreeing to the separation in exchange for its independence in 1968. Further, the island nation argued that the United Kingdom’s forced removal of its indigenous population constituted a violation of international human rights law, as the Chagossian people consequently experienced immense intergenerational psychological and physical harm.
The ICJ’s advisory opinion not only affirmed these accusations, but also surpassed them. It decided that the initial separation was unlawful and that any continued UK administration of the islands was a breach of international law. Further, the ICJ contended that the creation of the Chagos Marine Protected Area (MPA) in 2010 was also reprehensible. The Court deduced that the purposeful protection of this marine area, which stretches around the Chagos Archipelago and prohibits all commercial fishing and extractive activities, was more sinister than a dedication to biodiversity. Rather, by ‘protecting’ this area, the United Kingdom purposefully prevented Chagossians from returning to their homeland islands — a desperate grasp to retain imperial control.
Although this advisory opinion seeks a righteous restoration of justice, it is not legally binding. The United Kingdom faced no criminal charges, and no army was sent to enforce ICJ rulings. However, since the ICJ is an institution with significant international weight, this published decision successfully influenced change. The shift in public opinion across a majority of UN member states, towards UK treatment of the Chagos Islanders, exemplifies how soft power operates within international relations, due to the work of these supranational justice systems. Although the United Kingdom initially refused the ruling, after several years of mounting compulsion from the international community, with an overwhelming majority of its allies supporting the ICJ’s anti-colonial commitments, the tide is finally turning. In post-brexit 2023, the UK government has had to recognize they are currently preserving a narrative where they stand against both their international friends, and every international institution of justice—a problematic and undesirable position.
As such, awareness, concentrated into political pressure, can often do the work of concrete jurisdiction without infringing on any nation’s individual freedom. As a result, international institutions can help entire nations gain sovereignty, dismantle apartheid regimes, rectify human rights abuses, and forge a path to international justice.
To The Future: Israel’s Occupation of Palestine
As the world becomes increasingly connected and the effects of international conflict become more globalized, the importance of the ICJ in wielding soft power grows. The Israeli occupation of Palestine since 1967 sits at the epicenter of this development. With support from the United States, Israel has long served as the West’s poster child of freedom and sovereignty in the Middle East, strongly opposing any intervention that would externally dictate the illegality or morality of its actions. However, while the ICJ producing a mere opinion would not dismantle Israeli hegemony, it may hold the power to progress towards ending the occupation of Palestine.
The recent investigation requested by the UN General Assembly to determine a ruling on Israel’s treatment of Palestinians brings hope for this outcome. Given the deaths of over 14,000 people at the hands of this conflict, this commission of inquiry will provide just answers regarding Israel’s ongoing discrimination and violations of self-determination, which the United Nations accredits to prolonged occupation, settlement, annexation, and restrictive policies that fundamentally target the multinational nature of Jerusalem’s inhabitants.
The Court will conclusively advise on the legal status of the occupation and how all states and international justice systems should address the conflict. Although previous UN reports have concluded that the occupation of Palestine is unlawful—citing its permanence and the continued refusal by Israel to cooperate with any reversal of its de facto annexation—the United Nations Independent International Commission of Inquiry recognized that an advisory opinion could have a more profound impact.
If the ICJ finds Israel guilty of human rights abuses or unlawful military rule, then, as in the past, there is hope that powerful nations will feel pressured to adjust their current positions. Of course, there are complications. The US-Israeli partnership is 75 years old and is backed with over US$50 billion in annual bilateral trade, missile funding agreements, and treaties. The United States was the first nation to recognize Israeli statehood, and US presidents from both sides of the political spectrum have expressed clear support—to the United States, Israel is a bipartisan friend with massive economic benefits. Still, if enough nations shift their views and more powerful leaders endorse the probable findings of the ICJ, a reversal in this problematic status quo might come to pass. In any case, the ICJ may not be as toothless as one would initially believe. At the very least, it contributes to important global discourse that can mount pressure on the international community to enact meaningful change. When other actors have failed to alleviate the suffering of Palestinians, the ICJ may be the spark needed to ignite a fire of crucial progress.
