Islamic Law States and the Authority of the International Court of Justice: TerritorialSovereignty and Diplomatic Immunity
Year: 2016
Type: article
Abstract: I INTRODUCTION The principal judicial organ of United (UN)--the International Court of Justice (ICJ)--adjudicates interstate disputes and issues advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies. (1) The Court has contributed to peaceful resolution of disputes by delivering justice in variety of issue areas including territorial sovereignty, maritime delimitation, and diplomatic relations. Throughout its history, ICJ has strived to transform its formal authority, as established in its Statute, (2) into authority in fact. Hypothetically, such transformation would occur if countries not only recognized Court's jurisdiction, but also acknowledged that ICJ's rulings impose an obligation to comply. (3) However, distinct features of ICJ's jurisdiction make it almost impossible for Court to establish authority over entire zone of its jurisdiction. Additionally, perhaps more so than other international courts (ICs) addressed in this issue, ICJ operates in an environment with attractive litigation alternatives that siphon cases away from it. Finally, ICJ is not always accepted as an authoritative adjudicator by its potential audience, especially if one considers broad range of substantive areas of law that might be seen as falling under ICJ's formal jurisdiction. This article considers Islamic law states (ILS) as least likely case for ICJ authority. The Court--already constrained by its specific jurisdictional design and choice of forum options--faces additional hurdles in building up its authority vis-a-vis ILS. This article asks: Why and under what conditions are ILS willing to accept ICJ's authority? This question is considered in context of two substantive areas of Id's jurisdiction: territorial sovereignty and diplomatic immunity. In territorial sovereignty cases, despite conflict between Islamic law's edicts regarding territorial ownership and international law, ILS sometimes use Id and respect its rulings. Yet although Id is able to attain narrow authority in territorial disputes it adjudicates, Court encounters number of constraints that preclude it from reaching intermediate authority. In diplomatic immunity cases, despite consistency between Islamic and international law regulating diplomatic protection, ILS are not particularly willing to accept Id's authority. The role of strategic considerations is evident across all ILS cases that make it to The Hague--regardless of relationship between Islamic and international law. Part II situates ICJ vis-a-vis other ICs and analyzes Court's distinctive features and their ramifications for Court's authority. Part III discusses category of ILS, highlighting two factors that can impact ICJ's authority in relation to ILS: distinctive doctrines of Islamic international law (siyar), and ILS' preference toward nonconfrontational dispute settlement. Part IV explores two issue areas in which relationship between ICJ and ILS can potentially vary: territorial sovereignty--in which international and Islamic law are at odds--and diplomatic immunity, in which Islamic law and international law coexist without conflict. II THE ICJ'S DISTINCTIVE JURISDICTION The ICJ was created as successor of Permanent Court of International The UN Charter defines ICJ as the principal judicial organ of United Nations and declares that [a]ll Members of United are ipso facto parties to Statute of International Court of Justice. (4) Notably, UN Charter requires peaceful settlement of disputes, identifying number of means to this end, including seeking a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. …
Author: Emilia Justyna Powell
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2290770549