No Teeth, Many Tongues: International Law and the Court of Public Opinion

Despite a toothless international law, the ICJ mobilizes the public through advisory proceedings to legitimize the authority of their opinions.  

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^[1]

International law has long been criticized for having “no teeth,” meaning the international legal framework does not have an effective mechanism of enforcement.[2] The criticism surrounds the unenforceability of international law—rendering it “toothless.” International law’s limitations have become even more prevalent with recent highly politicized cases such as Ukraine v. Russian Federation and South Africa v. Israel.[3] Because of the “lack of teeth,” the criticized parties are not altering their actions in response to ICJ rulings, which calls into question the ICJ’s authority and the strength of international law in a greater sense.

The ICJ is the world’s highest international tribunal created by the UN to adjudicate disputes between nations and address issues of international law.^[4]  The ICJ can hear two kinds of cases: contentious cases, which are legal disputes made by states between states, or advisory proceedings, that respond to a request from the UN General Assembly or Security Council on legal questions.^[5]  For states, the major difference between a ruling in a contentious case or an advisory opinion is their legal obligation to comply with the ICJ’s authority. In contentious cases, states are given the opportunity to fully litigate before the ICJ and the ICJ returns a judgment which binds the parties. Conversely, an advisory opinion is not brought by states—the ICJ will respond to a request by UN bodies and produce an opinion that is not binding as a matter of international law.^[6]

In contentious cases the ICJ’s jurisdiction is based on the consent of the states involved in the dispute, either through submission or formal treaty.[7] Therefore, states accused of wrongdoing may not be legally bound by the rulings of the ICJ if they withdraw consent. Furthermore, because the ICJ does not have an enforcement mechanism, they cannot easily punish states that do not comply with binding orders. For example, in Nicaragua v. United States, Nicaragua sued the US for breach of customary international law, particularly the US’s intervention of its internal affairs.[8] While the US claimed that they were not subject to the jurisdiction of the ICJ, the ICJ still found jurisdiction and ordered the US to pay millions in reparations. However, to this day, the US has still not complied with this order.[9]

Even though ICJ already has limited ability to preside over issues and produce legally binding opinions, they have recently avoided even ruling cases on the merits, resulting instead in an increase in advisory opinions.^[10]  Of the twenty-seven advisory opinions given in the eighty years since the ICJ was established, seven of these opinions have been given since 2010—over twice the number of advisory opinions given in the twenty years prior.^[11]  There are strategic advantages to producing more non-binding opinions. While advisory opinions are usually seen to be weaker, they may be more significant than they seem. The increase in advisory opinions could be a way for the ICJ to better enforce its rulings through the court of public opinion.

Authorization by the public gives international law its legitimacy. The legitimacy of international law includes an “active belief” by citizens that the claims deserve respect or obedience, not restricted to a state’s own self-interest.^[12]  The legitimacy of international courts exists in three realms: legal legitimacy, moral legitimacy, and sociological legitimacy.^[13]  Legal legitimacy, or the power delegated to the ICJ through the UN Charter and statutory provisions, is often contested when the ICJ imposes jurisdiction over the states involved in the suit.^[14] However, the court of public opinion enforces two alternative methods of legitimacy: moral legitimacy, in which the court gains authority when its opinions are seen as “respect-worthy,” and sociological legitimacy, when the population of litigating states accept the authority.^[15]

The ICJ has been increasing its number of advisory opinions, a strategy which may strengthen the ICJ’s legitimacy. States often only choose to bring suit to international tribunals when there is a likelihood that the ICJ will rule in their favor or when they believe that the suit will generate favorable attention on the issue.^[16]  By giving an advisory opinion, the ICJ evades the complications of legal legitimacy because advisory opinions do not require states’ consent to be bound.^[17]  Furthermore, because advisory opinions are in response to requests from the General Assembly or Security Council, the issue has been somewhat publicly certified to have garnered enough global attention to allow the public to accept the ICJ’s authority. Additionally, because advisory opinions are not binding, they cannot be rejected by the states. Therefore, the ICJ can make public declarations of condemnation and in doing so, take a stance, without having to authorize their jurisdiction to comment increasing their moral and sociological legitimacy.

While the “toothless” argument around the lack of Security Council enforcement becomes prevalent here, ICJ opinions are enforced in a more decentralized way by shaping states’ response to parties involved in the dispute.^[18]  An advisory opinion allows international remedies to be achieved through a culmination of domestic action.^[19]  ICJ opinions have carried power in the past, acting as the grounds for states executing unprecedented sanctions against wrongdoers or supporting victim states through domestic policy such as in the issue of the Occupied Palestinian Territory.^[20] Therefore, while states may avoid compliance through any enforcement from the ICJ itself, they still face the constructive “teeth” of ICJ rulings through the court of public opinion, giving advisory opinions a quasi-binding effect. By relying on advisory opinions, the ICJ maintains its general neutrality and goodwill with states, while still influencing the outcomes it seeks to achieve.

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^[1] Reuters, Photograph of Bench of the International Court of Justice, Malaysia to Give Oral Submissions to ICJ against Israel, FMT (Feb. 20, 2024, 11:03 AM), https://www.freemalaysiatoday.com/category/nation/2024/02/20/malaysia-to-give-oral-submissions-to-icj-against-israel/.

[2] “No teeth” is a phrase commonly used to describe the inability of international bodies to enforce its norms. See Anne McMillan, Ukraine - The UN: Words, But No Teeth, International Bar Association, (March 16. 2022). https://www.ibanet.org/The-UN-words-but-no-teeth

[3] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.), Order (Jan. 26, 2024), https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf.

Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukr. v. Russ.) Order (Sept. 9, 2024), https://www.icj-cij.org/sites/default/files/case-related/182/182-20240909-ord-01-00-en.pdf.

^[4] Mariano-Florentino (Tino) Cuéllar and Oona A. Hathaway, The International Court of Justice’s Balancing Act, Carnegie Endowment for Int'l Peace (Jan.26, 2024), https://carnegieendowment.org/posts/2024/01/the-international-court-of-justices-balancing-act?lang=en.

^[5] How the Court Works, Int'l Ct. Just., https://www.icj-cij.org/how-the-court-works (last visited Feb. 26, 2025).

^[6] Eran Sthoeger, How do States React to Advisory Opinions? Rejection, Implementation, and What Lies in Between, Am. J. Int'l L. (Dec. 4, 2023), https://www.cambridge.org/core/journals/american-journal-of-international-law/article/how-do-states-react-to-advisory-opinions-rejection-implementation-and-what-lies-in-between/4AF4CED5401C7C89B2F4FB2EC327D2DA.

[7] Id. 

[8] Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Order (Jun. 27, 1986), https://www.icj-cij.org/sites/default/files/case-related/70/070-19860627-JUD-01-00-EN.pdf.

[9] Diane Desierto. Reopening Proceedings for Reparations and Abuse of Process at the International Court of Justice. Blog of the Eur. J. Int. Law. (Aug. 16, 2017) https://www.ejiltalk.org/reopening-proceedings-for-reparations-and-abuse-of-process-at-the-international-court-of-justice/.

^[10] Myrto Stavridi, The Advisory Function of the International Court of Justice: Are States Resorting to Advisory Proceedings as a “Soft” Litigation Strategy?, J.Pub. and Int’l Aff. (Apr. 22, 2024),

https://jpia.princeton.edu/news/advisory-function-international-court-justice-are-states-resorting-advisory-proceedings-%E2%80%9Csoft%E2%80%9D.

^[11] Advisory Proceedings, Int'l Ct. Just., https://www.icj-cij.org/advisory-proceedings (last visited Feb. 26, 2025).

^[12] Roger-Claude Liwanga and Casondra Turner, Demystifying the Legitimacy of International Tribunals: Case

Study of the International Court of Justice and Its Decisions on Armed Activities in the Congo, 35 Emory

Int'l L. Rev. 413, 421 (2021), https://scholarlycommons.law.emory.edu/cgi/viewcontent.cgi?article=1260&context=eilr.

^[13] See id.

^[14] See id. at 418–19.

^[15] See id. at 420-21.

^[16] Cuéllar (2024).

^[17] Tom Sparks, Reassessing State Consent to Jurisdiction. The Indispensable Third Party Principle before the ICJ, Max Planck Inst. for Compar. Pub. L. and Int'l L. (June 25, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3635621.

^[18] Cuéllar (2024).

^[19] Robert Ginsburg, Putin, Ukraine And International Law, Forbes (April 6, 2022, 12:28 PM). https://www.forbes.com/sites/robertginsburg/2022/04/06/putin-ukraine-and-international-law/.

^[20]cf. Cuéllar (2024).