Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction

The International Court of Justice the global system\u27s 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\u27s most powerful countries who are best able to lead or block expansion of the Court\u27s 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

Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction

The International Court of Justice the global system\u27s 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\u27s most powerful countries who are best able to lead or block expansion of the Court\u27s 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

Should Citizens Be Democratically Represented In The 21st Century International System?

Democracy is increasingly the sine quo non of legitimate governance at the local, provincial and national levels

Is International Law A Threat To Democracy: Framing The Question

I\u27m Andrew Strauss and welcome to our panel: Is International Law a Threat to Democracy? We are lucky this afternoon to have with us a very esteemed and ideologically diverse panel

Creating And Conducting In-Class Simulations In Public International Law: A Producer\u27s Guide

I define an in-class simulation as any classroom exercise that attempts to depict real-life events. Simulations can be extremely elaborate attempts to enact complex proceedings, or they can be as simple as having two students spontaneously represent lawyers making opposing arguments during class discussion

Global Income Inequality and the Potential for Global Democracy: A Functionalist Analysis

The thesis that I wish to develop in this chapter is that a functionalist view of the development of global institutions suggests that the structural inequalities in global income that were a primary cause of the global economic crisis of 2008, and that continue to endanger the world economy, have the potential to provide the political preconditions for a global regime that can help redress those inequalities. To do so, however, such a regime must empower the less economically well off through representation, and the regime itself must have the practical ability to influence global economic policy. Such a regime, I will argue, must be fundamentally democratic in its character. If it were to be brought into existence, a democratic regime, representative of the global public, would likely weigh in on many issues beyond income inequality. Environmental concerns, including climate change, human rights, and international conflict resolution are only a few of the areas where a parliament might be argued to have salutary value. A focus on economic inequality as a matter of great saliency today, however, presents a useful case study for both the political viability and utility of such an institution

Climate Change Litigation: Opening the Door to the International Court of Justice

In March 2003, I wrote an article for the Environmental Law Reporter surveying potential international judicial forums where victims of global warming could bring lawsuits. In the ensuing six years, numerous lawsuits have been brought in the United States and in other countries, and environmentalists can now celebrate their first significant victory. In April 2007, based upon its finding that greenhouse gases are pollutants under Section 202(a)(1) of the U.S. Clean Air Act, the Supreme Court in Massachusetts v. EPA held that the U.S. Environmental Protection Agency (EPA) has the authority to regulate greenhouse gases. Though we are still in the early days of global warming litigation, these lawsuits are having a significant impact on the legal and political climate. In response to a good deal of popular and academic discussion suggesting that those most responsible for the global warming problem be held legally accountable, corporations in the carbon sector are becoming concerned about the extent of their potential legal liability. This concern is one reason they are coming to publicly accept the reality of anthropogenic-caused global warming, and the corresponding need for regulation of greenhouse gas emissions. Despite the significance of this litigation, however, global warming actions thus far have almost all been brought in domestic rather than international forums. The only exceptions are a petition by the Inuit to the Inter-American Commission on Human Rights, and petitions by environmental groups and others to UNESCO\u27s World Heritage Committee to include various natural sites as world heritage endangered by global warming

A Global Paradigm Shattered: The Jurisdictional Nihilism of the Supreme Court’s Abduction Decision in Alvarez-Machain

In the United States v. Alvarez Machain, the United States Supreme Court held that the United States could exercise criminal jurisdiction over a Mexican doctor who was abducted by agents of the American government from his office in Mexico and transported to the United States. As the Court\u27s first international law decision after the end of the cold war, this case set the stage for how it would approach the domestic application of international law in the post cold war era. Despite the importance of the case, the Supreme Court failed to articulate the conceptual understanding of the relationship between the domestic and international orders which led it to disregard international law. Working from the author\u27s own positivist theory of the relationship between the domestic and international realms, he explains why the decision lacks conceptual coherence and offers a structured analysis which leads to the conclusion that the Court should have applied the international law of jurisdiction

Cutting the Gordian Knot: How and Why the United Nations Should Vest the International Court of Justice with Referral Jurisdiction

The International Court of Justice — the global system\u27s 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\u27s most powerful countries who are best able to lead or block expansion of the Court\u27s 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