Public Law & Legal Theory
Institutional analysis is an approach drawn from the social sciences that examines the ways in which an organization’s internal structures and external environment shape outcomes. There are many different kinds of institutionalism, but all have in common an emphasis on examining structures, as opposed to, say, the particular individuals who inhabit institutions, or the role of ideology at a macro level.1 Institutional analysis has been productively applied to courts and invites two related inquiries: what is the court’s institutional design, and what is its institutional environment?
Applying this approach to the International Court of Justice (“ICJ” or “Court”) requires identification of the relevant actors that shape the Court’s operating environment, as well as the ways in which they interact with the ICJ. It also requires examination of formal and informal rules, both inside and outside the ICJ, that frame these interactions. The attractiveness of any particular judicial institution, including the ICJ, will depend on the quality of the service it provides and the other options available. The former is in part a product of its institutional design while the latter is part of the institutional environment.
The formal institutional structures of the ICJ flow from the United Nations Charter (“Charter”) and the Statute of the Court (“Statute”). 2 These documents establish the Court and its relationships with other bodies. Neither has ever been amended, though there has been some informal evolution of the structures over time.
A good place to start is the statement in Article 94 of the Charter, repeated in Article 1 of the Statute, that the ICJ is the “principal judicial organ of the United Nations.” This tells us, first of all, that the ICJ is a court. This point may seem so obvious as to not even bear mentioning, but courts have their own institutional characteristics and distinctive modes of operating. As a judicial organ, the Court’s job is to adjudicate, as well as to provide authoritative interpretations of law, including under Articles 65-68 of the Statute, which allow for advisory opinions.
Second, the ICJ is an international court. Its primary jurisdiction is over states and their disputes. This means that states will play an important role in determining the ICJ’s workload and effectiveness.3 States decide whether to file cases, whether to comply with decisions, and whether to act in accordance with the rules pronounced by the Court. In this sense, states are both a primary audience for the court but also its clients.
Third, the Court is an organ of the United Nations (“UN”). This tells us that the UN and its organs form a major part of the ICJ’s institutional environment. The UN is not the only organization with which the Court interacts, but it plays an important role in selecting judges, providing funding, bringing requests for advisory opinions, and, potentially, in enforcing decisions. The relationship with the machinery of the UN conditions the performance and possibilities of the ICJ.
This Chapter will examine each of these points in turn. One of the themes that emerges from the analysis in each area is the gap between the formal institutional structures and the actual operation of the Court. The formal rules matter a good deal, but they do not explain everything about the way the Court works. In this sense, the Court has had to adapt to its environment.
Tom Ginsburg, "The Institutional Context of the International Court of Justice", Public Law and Legal Theory Working Paper Series, No.779 (2021).