The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence
It has long been the dream of those anxious to increase the role of adjudication in international relations that the International Court of Justice (“ICJ,” “International Court,” or “the Court”) would act in the international arena as a superior court-a forum whose pronouncements would nourish, sustain, and help unify the jurisprudence of other international tribunals, whether of an ad hoc or standing nature, and of national courts handling international law issues. In the context of self-determination, the Arbitration Commission of the European Community’s Conference for Peace in Yugoslavia (“the Badinter Commission,” “the Commission,” or “the Arbitration Commission”) would appear, at first glance, to have taken significant steps toward bringing this dream to realization. From 1991-1993, the Badinter Commission rendered legal opinions relating to the break-up of the Yugoslav Republic (SFRY) and in so doing quoted liberally from the opinions and decisions of the ICJ and ostensibly relied on them in matters of both competence and substance. Upon closer examination, however, the Commission appears to have misused more than used the International Court’s jurisprudence. Far from serving as the lodestar for the Commission, that jurisprudence instead provided a reservoir of formulas (themselves not free of ambiguity) which were unquestioningly repeated and, in some cases, questionably extended by the Commission in inappropriate contexts. The long-range results of the Commission’s application of ICJ law could more plausibly harm than facilitate the goal of having self-determination questions adjudicated in judicial and quasi-judicial fora.