The Doctrine of Non-Justiciable Disputes in International Law

JUSTICIABLE or Justiciability are not terms with which the average lawyer is conversant. He may have heard them used vaguely in the administrative law of several countries for the purpose of describing controversies removed from the jurisdiction of ordinary courts and entrusted to administrative authorities. He may also have learned that in certain countries, in writings dealing with compulsory arbitration in industrial matters, disputes relating to the existence, validity, or interpretation of collective agreements between employers and employees are described as prima flacie justiciable. But apart from this, he would be inclined to regard a justiciable dispute as one over which a competent court has jurisdiction, and he would argue that in a civilised country all disputes are justiciable. It would be difficult to contradict him. Within the state all conflicts between citizens are cognisable by courts which either pronounce on the merits or definitely dismiss the claim on the ground that, whatever its moral or other justification may be, it is not entitled to protection and enforcement by the law. In this latter case, the court, although not settling the dispute on the merits, disposes of it definitely by the implied prohibition of enforcing the claim through recourse to violence. In relations between states, where the limitations of recourse to force for the purpose of enforcing claims are of very recent growth and of an indefinite character, the doctrine of non-justiciable disputes connotes that by the very nature of international conflicts certain disputes between states are removed from the competence of international courts as a matter of binding obligation undertaken in advance. The respect in which this doctrine is held is widespread, and there are few departments of international law in which the conception of unfettered state sovereignty, carefully cloaked with the garb of a legal phrase, has entrenched itself more firmly. 277

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