For a man with a remarkable level of expertise in his field, holding a senior position in a prestigious international institution, Peter Tomka is softly-spoken and approachable in discussion. Through these traits, the Slovakian President of the International Court of Justice, having studied international law in 5 countries, reveals a reverence for and understanding of the function and ideals of his organisation.
The Court, established in 1945 as one of the six principal organs of the United Nations, “is the only court with universal jurisdiction”, Tomka explains. “That means it can adjudicate cases relating to a variety of legal issues, and of course, jurisdiction covers the states.”
Bringing judicial authority to the global stage does not come easily, however. First of all, determining the Court’s jurisdiction proves problematic. Noting that “a case comes under the jurisdiction only if the two states involved accept it”, Tomka comments that the system is a compromise from when proposals for compulsory jurisdiction were not adopted in 1921, from the founding of the original Permanent Court of International Justice.
In a strangely constrained role then, judges like Tomka can only bring states to justice when they are asked to do so. Clearly these limitations can cause frustration to a man devoted to his work. “In my view the world has moved in more than 90 years, so there is a need to further strengthen the jurisdiction of the Court.” Nevertheless, these issues do not wound the President’s optimism for the future. “A promising route is to encourage states which have not yet made declarations recognising Court jurisdiction to do so.” Moreover, he explains that “the majority of disputes in today’s world are resolved, and also in the future will be resolved, through settlement by the parties.”
“I would say that this is always a preferable way of resolving disputes and reaching agreement,” he adds. Importantly, international law’s purpose is to maintain peace and security among nations, rather than simply labelling one state or the other as ‘guilty’. Tomka’s recognition of this fact provides a refined perspective on the Court’s role. “The existence of the Court and the possibility of bringing a case before it may sometimes have a positive impact – be conducive to reaching the settlement – because then parties, or at least one of them, may be a little bit more flexible.”
Tomka points to a case concerning aerial herbicide spraying by Columbia over land Ecuador considered as its own. The spraying took place to destroy plantations of coca used by rebels to finance activities against the Columbian government. “Shortly before opening our hearings, which were scheduled for the last day of December this year, the parties informed the Court that they had reached an agreement”, he says. “They appreciated the Court’s involvement and said that without such involvement, it would be much more difficult, if not impossible, to reach such a settlement out of Court.”
The Court has passed judgement on 154 cases, although this does include advisory opinions deliberated on at the request of other international organisations. I ask Tomka if settlement outside of court is always possible, given the large variety of cases this figure surely comprises. Of course, there are more troublesome examples: “If there is a region which is still a little bit more reluctant on the judicial settlement of disputes, it’s Asia,” he notes.
Here the issue of countries’ consent to the Court’s adjudication returns; “perhaps it’s due to some historical and cultural conditions in that part of the world, and that they are not so used to having affirmed rights in the Courts, or to resolving disputes in judicial bodies. Just to illustrate that, this is the region where there is no regional convention of human rights.”
Such differences in tradition and the conventions of law between nations prove to be one of the major obstacles between the Court’s practical reality and the consistent application of international justice. The judges themselves are, sometimes, even drawn from nations often involved in cases.
Academic work in the area has questioned if the Court is biased for this reason. In fact, the Court’s structure creates a deliberative, fair body: Tomka points out that “The Court consists of 15 judges, coming from different corners of the world, and it’s important that we have different backgrounds.”
I challenge him over whether his national identity, and time spent as a legal advisor to the Slovakian Foreign Ministry, influences his legal opinion. Tomka dispels the idea, saying, “I would not say there are national inclinations. Well, certainly one has a legal background, and I come from a country which has continental European traditions in written law, i.e. the role of the courts is to interpret statutes, not to create law.” This is exactly what the ICJ does. Furthermore, he concludes that the Court has a broader function – its decisions clarify international law through precedent, and “strengthen international order in this way.”
With these remarks it is clear that Tomka is a judge committed to the promotion of international justice rather than a specific nation’s interests. His international experience serves as an ideal tool to this end. I simply hope that the institution he leads can obtain enough international influence for his intentions to be made manifest.
