Judicial Fairness: The International Courts of Justice

Almost all political instruments of governance need to be supplemented by third party institutions of dispute settlement. The United Nations Security Council, when it makes decisions based on a consensus among states with no partisan interest, could be included. When it operates in accordance with principles of fairness, the Security Council becomes analogous with a tribunal or jury. International environment management systems use fact finding, structured so as to justify expectations of fairness and impartiality, in conflict resolution. Although these and other third-party processes can contribute significantly to the legitimacy and perceived fairness of the international order, by far the most salient third-party process of the system is that of the International Court of Justice (ICJ). The ICJ is not the primary means of making international law, but only an international law which is subject to case-by-case interpretation via a credible third-party decision-making process is a serious norm. This chapter focuses on the ICJ's quest for structural impartiality through selection and tenure of judges, along with procedural aspects of defining the Court's jurisdiction.