Revision of the South West Africa Cases, 7 Virginia Journal of International Law 1 (1966)
It is with the greatest reluctance that one suggests an e.~mination of the question of validity 'Vel nullity of a judgment of the International Court of Justice. The fabric of the authority of international adjudication is delicate and has been sorely strained in the recent past. If subjected to more stress, it may be irreparably torn asunder. Hugo Grotius, anticipating erroneous judgments, counseled that they be accepted with a detached stoicism. Grotius' counsel, from which, it may be noted, Pufendorf, Vattel and the majority of subsequent publicists have dissented, based itself on the nature and interests of the international system. It is not difficult to adduce policies for the immutability of international judgments. It is definitional, indeed truistic, of any organized community that the common interest takes priority over private interests. The common interest lies obviously in the stability of law and, derivatively, in the finality of judicial applications. However, it is equally obvious that a mature community which posits itself on an appreciation of the fundamental and inherent value of every human being seeks constantly to strike a balance between public and private interests - choosing that manner of safeguarding the public interest which imposes the fewest arbitrary restrictions on the rights of the individual. This balance is sought for a theoretical, doctrinal reason: belief in the inherent value of the individual. It is further desirable for a practical, political reason; that polity which, because of its principles, commands the respect and loyalty of its citizenry regulates itself more economically, persuasively and expeditiously.
These considerations bear directly on the question of the impregnability of international judgments. Adjudication is the most rational and just method of dispute settlement which humanity has thus far developed. In an emerging community in which adjudication is consensual rather than compulsory, faith in the process and willingness to resort to it for decision on vital matters will depend, to a significant degree, on the impression which international courts and tribunals communicate to potential litigants. International litigants, in contrast to their national counterparts, are free to take their disputes elsewhere or nowhere. Courts will be attractive loci of dispute resolution only if they evidence a capacity for accurate and just (if not infallible) legal decision and, at the same time, maintain enough internal vigor to correct those mistakes which inevitably occur. The demand that a legal system be strong enough to correct and compensate its mistakes is, after all, hardly immoderate. "Finality" is indeed a crucial element of social stability. Yet, as Rupert Emerson observed, the fact that primitive societies placed such a high premium on stability may have contributed in part to their remaining primitive. At this critical crossroad of world legal order, the future of international adjudication, if not global peace, may paradoxically depend on the capacity of our supreme judicial organ to say mea culpa.
Date of Authorship for this Version
Reisman, W. Michael, "Revision of the South West Africa Cases" (1966). Faculty Scholarship Series. Paper 676.