The International Court of Justice (French: Cour Internationale de justice; commonly referred to as the World Court or ICJ) is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. It was established in June 1945 by the Charter of the United Nations and began work in April 1946. Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America). Its main functions the Court are settling, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.The ICJ should not be confused with the International Criminal Court, which potentially also has global jurisdiction. As provided in Article 92 of the United Nations Charter, the Statute of International Court of Justice. Prof. Stephen Goodspeed has rightly pointed out that, the new Court stepped into the shoes of the old and began its work in the same city, in the same place and in the same hall in which the previous Court delivered its high judgment. The ICJ performs its functions in the same building in which the permanent Court of International Justice had been undertaking its judicial functions. It is recommendable to note that the Permanent Court of International Justice did yeoman service to the development of International law. Its decisions broadened the scope of International law and contributed to its progressive development. Its advisory opinions were widely acclaimed by international society and led to the development of International Organization to a great extent. This is why after dissolution of the Permanent Court of International Justice along with League of Nations, its Statute was retained and it became the basis of the Statute of International Court of Justice.
Establishment and activities of ICJ
The creation of the Court represented the culmination of a long development of methods for the pacific settlement of international disputes, the origins of which can be traced back to classical times.Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements; good offices should also be added to this list. Among these methods, certain involve appealing to third parties. For example, mediation places the parties to a dispute in a position in which they can themselves resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party, so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.Mediation and arbitration preceded judicial settlement in history. The former was known in ancient India and in the Islamic world, whilst numerous examples of the latter are to be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe and in Papal practice.
The modern history of international arbitration is, however, generally recognized as dating from the so-called Jay Treaty of 1794 between the United States of America and Great Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of three mixed commissions, composed of American and British nationals in equal numbers, whose task it would be to settle a number of outstanding questions between the two countries which it had not been possible to resolve by negotiation. Whilst it is true that these mixed commissions were not strictly speaking organs of third-party adjudication, they were intended to function to some extent as tribunals. They reawakened interest in the process of arbitration. Throughout the nineteenth century, the United States and the United Kingdom had recourse to them, as did other States in Europe and the Americas.The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, and still more decisive, phase. Under the Treaty of Washington of 1871, the United States and the United Kingdom agreed to submit to arbitration claims by the former for alleged breaches of neutrality by the latter during the American Civil War. The two countries stated certain rules governing the duties of neutral governments that were to be applied by the tribunal, which they agreed should consist of five members, to be appointed respectively by the Heads of State of the United States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not being parties to the case. The arbitral tribunal’s award ordered the United Kingdom to pay compensation and it was duly complied with. The proceedings served as a demonstration of the effectiveness of arbitration in the settlement of a major dispute and it led during the latter years of the nineteenth century to developments in various directions, namely:sharp growth in the practice of inserting in treaties clauses providing for recourse to arbitration in the event of a dispute between the parties; the conclusion of general treaties of arbitration for the settlement of specified classes of inter-State disputes; efforts to construct a general law of arbitration, so that countries wishing to have recourse to this means of settling disputes would not be obliged to agree each time on the procedure to be adopted, the composition of the tribunal, the rules to be followed and the factors to be taken into consideration in making the award; proposals for the creation of a permanent international arbitral tribunal in order to obviate the need to set up a special ad hoc tribunal to decide each arbitrable dispute.
The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)
The Hague Peace Conference of 1899, convened at the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration. The chief object of the Conference, in which — a remarkable innovation for the time — the smaller States of Europe, some Asian States and Mexico also participated, was to discuss peace and disarmament. It ended by adopting a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.With respect to arbitration, the 1899 Convention made provision for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention — each such country being entitled to designate up to four — from among whom the members of each arbitral tribunal might be chosen. The Convention further created a permanent Bureau, located at The Hague, with functions corresponding to those of a court registry or a secretariat, and it laid down a set of rules of procedure to govern the conduct of arbitrations. It will be seen that the name “Permanent Court of Arbitration” is not a wholly accurate description of the machinery set up by the Convention, which represented only a method or device for facilitating the creation of arbitral tribunals as and when necessary. Nevertheless, the system so established was permanent and the Convention as it were “institutionalized” the law and practice of arbitration, placing it on a more definite and more generally accepted footing. The Permanent Court of Arbitration was established in 1900 and began operating in 1902.
A few years later, in 1907, a second Hague Peace Conference, to which the States of Central and South America were also invited, revised the Convention and improved the rules governing arbitral proceedings. Some participants would have preferred the Conference not to confine itself to improving the machinery created in 1899. The United States Secretary of State, Elihu Root, had instructed the United States delegation to work towards the creation of a permanent tribunal composed of judges who were judicial officers and nothing else, who had no other occupation, and who would devote their entire time to the trial and decision of international cases by judicial methods. “These judges”, wrote Secretary Root, “should be so selected from the different countries that the different systems of law and procedure and the principal languages shall be fairly represented”. The United States, the United Kingdom and Germany submitted a joint proposal for a permanent court, but the Conference was unable to reach agreement upon it. It became apparent in the course of the discussions that one of the major difficulties was that of finding an acceptable way of choosing the judges, none of the proposals made having managed to command general support. The Conference confined itself to recommending that States should adopt a draft convention for the creation of a court of arbitral justice as soon as agreement was reached “respecting the selection of the judges and the constitution of the court”. Although this court was never in fact to see the light of day, the draft convention that was to have given birth to it enshrined certain fundamental ideas that some years later were to serve as a source of inspiration for the drafting of the Statute of the Permanent Court of International Justice (PCIJ).
Notwithstanding the fate of these proposals, the Permanent Court of Arbitration, which in 1913 took up residence in the Peace Palace that had been built for it thanks to a gift from Andrew Carnegie, has made a positive contribution to the development of international law. Among the classic cases that have been decided through recourse to its machinery, mention may be made of the Carthage and Manouba cases (1913) concerning the seizure of vessels, and of the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928) cases. Whilst demonstrating that arbitral tribunals set up by recourse to standing machinery could decide disputes between States on a basis of law and justice and command respect for their impartiality, these cases threw into bold relief the shortcomings of the Permanent Court of Arbitration. Tribunals of differing composition could hardly be expected to develop a consistent approach to international law to the same extent as a permanently constituted tribunal. Besides, there was the entirely voluntary character of the machinery. The fact that States were parties to the 1899 and 1907 Conventions did not oblige them to submit their disputes to arbitration nor, even if they were minded so to do, were they duty-bound neither to have recourse to the Permanent Court of Arbitration nor to follow the rules of procedure laid down in the Conventions.
The Permanent Court of Arbitration has recently sought to diversify the services that it can offer, alongside those contemplated by the Conventions. The International Bureau of the Permanent Court has inter alia acted as Registry in some important international arbitrations, including that between Eritrea and Yemen on questions of territorial sovereignty and maritime delimitation (1998 and 1999), that concerning the delimitation of the boundary between Eritrea and Ethiopia (2002), and that between Ireland and the United Kingdom under the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR). Moreover, in 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.
The work of the two Hague Peace Conferences and the ideas they inspired in statesmen and jurists had some influence on the creation of the Central American Court of Justice, which operated from 1908 to 1918, as well as on the various plans and proposals submitted between 1911 and 1919 both by national and international bodies and by governments for the establishment of an international judicial tribunal, which culminated in the creation of the PCIJ within the framework of the new international system set up after the end of the First World War.
The Permanent Court of International Justice (PCIJ)
Article 14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly. It remained for the League Council to take the necessary action to give effect to Article 14. At its second session early in 1920, the Council appointed an Advisory Committee of Jurists to submit a report on the establishment of the PCIJ. The committee sat in The Hague, under the chairmanship of Baron Descamps ( Belgium). In August 1920, a report containing a draft scheme was submitted to the Council, which, after examining it and making certain amendments, laid it before the First Assembly of the League of Nations, which opened at Geneva in November of that year. The Assembly instructed its Third Committee to examine the question of the Court’s constitution. In December 1920, after an exhaustive study by a subcommittee, the Committee submitted a revised draft to the Assembly, which unanimously adopted it. This was the Statute of the PCIJ.
The Assembly took the view that a vote alone would not be sufficient to establish the PCIJ and that each State represented in the Assembly would formally have to ratify the Statute. In a resolution of 13 December 1920, it called upon the Council to submit to the Members of the League of Nations a protocol adopting the Statute and decided that the Statute should come into force as soon as the protocol had been ratified by a majority of Member States. The protocol was opened for signature on 16 December. By the time of the next meeting of the Assembly, in September 1921, a majority of the Members of the League had signed and ratified the protocol. The Statute thus entered into force. It was to be revised only once, in 1929, the revised version coming into force in 1936. Among other things, the new Statute resolved the previously insurmountable problem of the election of the members of a permanent international tribunal by providing that the judges were to be elected concurrently but independently by the Council and the Assembly of the League, and that it should be borne in mind that those elected “should represent the main forms of civilization and the principal legal systems of the world”. Simple as this solution may now seem, in 1920 it was a considerable achievement to have devised it. The first elections were held on 14 September 1921. Following approaches by the Netherlands Government in the spring of 1919, it was decided that the PCIJ should have its permanent seat in the Peace Palace in The Hague, which it would share with the Permanent Court of Arbitration. It was accordingly in the Peace Palace that on 30 January 1922 the Court’s preliminary session devoted to the elaboration of the Court’s Rules opened, and it was there too that its inaugural sitting was held on 15 February 1922, with the Dutch jurist Bernard C. J. Loder as President.The PCIJ was thus a working reality. The great advance it represented in the history of international legal proceedings can be appreciated by considering the following:unlike arbitral tribunals, the PCIJ was a permanently constituted body governed by its own Statute and Rules of Procedure, fixed beforehand and binding on parties having recourse to the Court; it had a permanent Registry which, inter alia, served as a channel of communication with governments and international bodies; its proceedings were largely public and provision was made for the publication in due course of the pleadings, of verbatim records of the sittings and of all documentary evidence submitted to it; the permanent tribunal thus established was now able to set about gradually developing a constant practice and maintaining a certain continuity in its decisions, thereby enabling it to make a greater contribution to the development of international law; in principle the PCIJ was accessible to all States for the judicial settlement of their international disputes and they were able to declare beforehand that for certain classes of legal disputes they recognized the Court’s jurisdiction as compulsory in relation to other States accepting the same obligation. This system of optional acceptance of the jurisdiction of the Court was the most that it was then possible to obtain; the PCIJ was empowered to give advisory opinions upon any dispute or question referred to it by the League of Nations Council or Assembly; the Court’s Statute specifically listed the sources of law it was to apply in deciding contentious cases and giving advisory opinions, without prejudice to the power of the Court to decide a case ex aequo et bono if the parties so agreed; it was more representative of the international community and of the major legal systems of the world than any other international tribunal had ever been before it.
Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States and delivered 27 advisory opinions. At the same time several hundred treaties, conventions and declarations conferred jurisdiction upon it over specified classes of disputes. Any doubts that might thus have existed as to whether a permanent international judicial tribunal could function in a practical and effective manner were thus dispelled. The Court’s value to the international community was demonstrated in a number of different ways, in the first place by the development of a true judicial technique. This found expression in the Rules of Court, which the PCIJ originally drew up in 1922 and subsequently revised on three occasions, in 1926, 1931 and 1936. There was also the PCIJ’s Resolution concerning the Judicial Practice of the Court, adopted in 1931 and revised in 1936, which laid down the internal procedure to be applied during the Court’s deliberations on each case. In addition, whilst helping to resolve some serious international disputes, many of them consequences of the First World War, the decisions of the PCIJ at the same time often clarified previously unclear areas of international law or contributed to its development.
The International Court of Justice (ICJ)
The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had already for some years known a period of diminished activity. After its last public sitting on 4 December 1939, the Permanent Court of International Justice did not in fact deal with any judicial business and no further elections of judges were held. In 1940 the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality. It was inevitable that even under the stress of the war some thought should be given to the future of the Court, as well as to the creation of a new international political order.
In 1942 the United States Secretary of State and the Foreign Secretary of the United Kingdom declared themselves in favour of the establishment or re-establishment of an international court after the war, and the Inter-American Juridical Committee recommended the extension of the PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took the initiative of inviting a number of experts to London to constitute an informal Inter-Allied Committee to examine the matter. This Committee, under the chairmanship of Sir William Malkin ( United Kingdom), held 19 meetings, which were attended by jurists from 11 countries. In its report, which was published on 10 February 1944, it recommended: that the Statute of any new international court should be based on that of the Permanent Court of International Justice; that advisory jurisdiction should be retained in the case of the new Court; that acceptance of the jurisdiction of the new Court should not be compulsory; that the Court should have no jurisdiction to deal with essentially political matters.
Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.
This declaration led to exchanges between the Four Powers at Dumbarton Oaks, resulting in the publication on 9 October 1944 of proposals for the establishment of a general international organization, to include an international court of justice. The next step was the convening of a meeting in Washington, in April 1945, of a committee of jurists representing 44 States. This Committee, under the chairmanship of G. H. Hackworth (United States), was entrusted with the preparation of a draft Statute for the future international court of justice, for submission to the San Francisco Conference, which during the months of April to June 1945 was to draw up the United Nations Charter. The draft Statute prepared by the Committee was based on the Statute of the PCIJ and was thus not a completely fresh text. The Committee nevertheless felt constrained to leave a number of questions open which it felt should be decided by the Conference: should a new court be created? In what form should the court’s mission as the principal judicial organ of the United Nations be stated? Should the jurisdiction of the court compulsory, if so, to what extent? How should the judges be elected? The final decisions on these points, and on the definitive form of the Statute, were taken at the San Francisco Conference, in which 50 States participated. The Conference decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and with the Statute annexed to and forming part of the Charter. The chief reasons that led the Conference to decide to create a new court were the following:
as the court was to be the principal judicial organ of the United Nations, it was felt inappropriate for this role to be filled by the Permanent Court of International Justice, which had up until then been linked to the League of Nations, then on the point of dissolution; the creation of a new court was more consistent with the provision in the Charter that all Member States of the United Nations would ipso facto be parties to the court’s Statute; several States that were parties to the Statute of the PCIJ were not represented at the San Francisco Conference, and, conversely, several States represented at the Conference were not parties to the Statute; there was a feeling in some quarters that the PCIJ formed part of an older order, in which European States had dominated the political and legal affairs of the international community, and that the creation of a new court would make it easier for States outside Europe to play a more influential role. This has in fact happened as the membership of the United Nations grew from 51 in 1945 to 192 in 2006.
The San Francisco Conference nevertheless showed some concern that all continuity with the past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on the basis of past experience, and it was felt better not to change something that had seemed to work well. The Charter therefore plainly stated that the Statute of the International Court of Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of Justice. In any event, the decision to create a new court necessarily involved the dissolution of its predecessor. The PCIJ met for the last time in October 1945 when it was decided to take all appropriate measures to ensure the transfer of its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat in the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, and the election of the first Members of the International Court of Justice took place on 6 February 1946, at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed the members of its Registry (largely from among former officials of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was submitted in May 1947. It concerned incidents in the Corfu Channel and was brought by the United Kingdom against Albania.
The Court began work in 1946 as the successor to the Permanent Court of International Justice. The Statute of the International Court of Justice, similar to that of its predecessor, is the main constitutional document constituting and regulating the Court. The Court’s workload is characterized by a wide range of judicial activity. The ICJ has dealt with relatively few cases in its history, but there has clearly been an increased willingness to use the Court since the 1980s, especially among developing countries. The United States withdrew from compulsory jurisdiction in 1986, after the court ruled that its covert war against Nicaragua was in violation of international law, and now only accepts the court’s jurisdiction on a case-by-case basis. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce World Court rulings, but such enforcement is subject to the veto power of the five permanent members of the Council. Presently there are twelve cases on the World Court’s docket.
Sources of law of ICJ
When deciding cases, the Court applies international law as summarized in of the ICJ Statute provides that in arriving at its decisions the Court shall apply international conventions, international custom, and the “general principles of law recognized by civilized nations”. It may also refer to academic writing (“the teachings of the most highly qualified publicists of the various nations”) and previous judicial decisions to help interpret the law, although the Court is not formally bound by its previous decisions under the doctrine of stare decisis makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. The Court’s decision binds only the parties to that particular controversy. Under 38(1)(d), however, the Court may consider its own previous decisions. In reality, the ICJ rarely departs from its own previous decisions and treats them as precedent in a way similar to superior courts in common law systems. Additionally, international lawyers commonly operate as though ICJ judgments had precedential value. Article 59 makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. If the parties agree, they may also grant the Court the liberty to decide ex aequo et bono (“in justice and fairness”), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. This provision has not been used in the Court’s history. So far the International Court of Justice has dealt with about 130 cases.
Composition of the ICJ and the current composition
The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. This sometimes makes it necessary for a number of rounds of voting to be carried out. In order to ensure a measure of continuity, one third of the Court is elected every three years. Judges are eligible for re-election. Should a judge die or resign during his or her term of office, a special election is held as soon as possible to choose a judge to fill the unexpired part of the term. Elections are held in New York (United States of America) on the occasion of the annual autumn session of the General Assembly. The judges elected at a triennial election enter upon their term of office on 6 February of the following year, after which the Court proceeds to elect by secret ballot a President and a Vice-President to hold office for three years. All States parties to the Statute of the Court have the right to propose candidates. These proposals are made not by the government of the State concerned, but by a group consisting of the members of the Permanent Court of Arbitration designated by that State, i.e. by the four jurists who can be called upon to serve as members of an arbitral tribunal under the Hague Conventions of 1899 and 1907. In the case of countries not represented on the Permanent Court of Arbitration, nominations are made by a group constituted in the same way. Each group can propose up to four candidates, not more than two of whom may be of its own nationality, whilst the others may be from any country whatsoever, whether a party to the Statute or not and whether or not it has declared that it accepts the compulsory jurisdiction of the ICJ. The names of candidates must be communicated to the Secretary-General of the United Nations within a time-limit laid down by him/her. Judges must be elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juries consults of recognized competence in international law. The Court may not include more than one national of the same State. Moreover, the Court as a whole must represent the main forms of civilization and the principal legal systems of the world. In practice this principle has found expression in the distribution of membership of the Court among the principal regions of the globe. Today this distribution is as follows: Africa 3, Latin America and the Caribbean 2, Asia 3, Western Europe and other States 5, Eastern Europe 2, which corresponds to that of membership of the Security Council. Although there is no entitlement to membership on the part of any country, the Court has always included judges of the nationality of the permanent members of the Security Council. Unlike most other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously. In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. This has in fact never happened.
No Member of the Court may engage in any other occupation during his/her term. He/she is not allowed to exercise any political or administrative function, nor to act as agent, counsel or advocate in any case. Any doubts with regard to this question are settled by decision of the Court. A Member of the Court, when engaged on the business of the Court, enjoys privileges and immunities comparable with those of the head of a diplomatic mission. In The Hague, the President takes precedence over the doyen of the diplomatic corps, after which precedence alternates between judges and ambassadors. Each Member of the Court receives an annual salary consisting of a base salary (which for 2010 amounts to US$166,596) and post adjustment, with a special supplementary allowance of US$15,000 for the President. The post adjustment multiplier changes every month and is dependent on the UN exchange rate between the US Dollar and the Euro. On leaving the Court, they receive annual pensions which, after a nine-year term of office, amount to 50 per cent of the annual base salary. Although the Court is deemed to be permanently in session, only its President is obliged to reside in The Hague. However, the other Members of the Court are required to be permanently at its disposal except during judicial vacations or leave of absence, or when they are prevented from attending by illness or other serious reasons. In practice, the majority of Court Members reside in The Hague and all will normally spend the greater part of the year there.
As of June 2010, the composition of the Court is as follows:
|Abdul G. Koroma||Sierra Leone||Member||1994, 2003||2012|
|Awn Shawkat Al Khasawneh||Jordan||Member||2000, 2009||2018|
|Joan Donoghue||United States||Member||2010||2015|
|Ronny Abraham||France||Member||2005, 2009||2018|
|Sir Kenneth Keith||New Zealand||Member||2006||2015|
|Bernardo Sepúlveda Amor||Mexico||Member||2006||2015|
|Sir John Greenwood||United Kingdom||Member||2009||2018|
Competence of the court and its binding force
In contentious cases.- Article 34(1) of the Statute of I.C.J. provides that “Only States may be parties in cases before the Court.” Here, the consent of the State which wants to become a party before the Court is essential. The States which can thus appear before I.C.J. are from one of the three categories. The first includes all U.N. members who under Article 93(1) of the U.N. Charter are ipso facto parties to the Statute of the Court. Article 93(1) of the U.N. Charter provides that all members of the United Nations are ipso facto parties to the Statute of International Court of Justice. Article 93(2) describes their second category of States which are not U.N Members. They may, if they desire, become parties to the Statute. This Para provides, “A State which is not a Member of United Nations, may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.” These conditions were imposed upon Switzerland in 1947 and Leichtenstein 1950 to accept the Statute, the oblige, the obligations of U.N. Members under Article 94 of the U.N. Charter along with an undertaking to contribute equitably the expenses of the Court. The third category includes non-U.N. Members who wish to appear before the Court as parties in a particular dispute or class of disputes but without becoming parties to the Statute. This is possible under Article 35(2) of the statute.Prof. Bowett has described the third category of those non-U.N. Members who may also become party to the I.C.J. as follows:
“the third category includes non-U.N. Members who wish to appear before the court as parties in a particular dispute or class of disputes but without becoming parties to the Statute. This is possible under Article 35(2) of the Statute, and the Security Council by a resolution of October 15, 1946, imposed the conditions that such states should undertake to comply with the decision of the Court and accept the obligations of Article 94 of the Chapter, the Court itself fixes the amount due towards the expenses of the particular case.
Prof. Bowett has differentiated the second and third category of non-U.N. Members by stating, “Whilst the second can participate fully in the scheme for compulsory jurisdiction under Article 36(2) – “The Optional Clause”, the third category can sign the Optional Clause but cannot rely on it as against States who are parties to the Statute(i.e., in categories 1 or 2) unless they specifically agree.” However, International Organizations have no locus standi as parties in a contentious case before the Court.
In respect of Advisory Jurisdiction Article 65(1) of the Statute of I.C.J. lays down, “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request”. In contrast to this provision, Article 14 of the League Covenant provided that “The Court may give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.” It may be noted in this context that Article 96(1) of the U.N. Charter provides that “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.” Further, Article 96(2) lays down that “Other organs of the United Nations and specialised agencies, which may at any time be so authorised by General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.” However, individual States have no power to request I.C.J to call for an advisory opinion. Their rights are limited to the extent of providing information to I.C.J in accordance with the provisions of Article 66 of the Statute of I.C.J.
Binding force of the decision of the court
Article 59 of the Statute of the International Court of Justice lays down that the decision of the Court has no binding force except between the parties and in respect of that particular case. It means that previous decisions of the Court are neither binding upon the States nor upon the Court. The decisions of the Court are not precedents yet they are important guidance for future decisions of the Court. They are evidence of what the Court considers to be the law; they are reliable indication of the future attitude of the court; for most practical purpose, they show, therefore, what International law is. In fact, they are to be a substantial degree incidental with the sources of law enumerated in the first three paragraphs of Article 38.
Jurisdiction of the court
The International Court of Justice acts as a world court. As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court’s statute. Non-UN members may also become parties to the Court’s statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court’s statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction)
In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organizations. This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of “diplomatic protection”, bring a case on behalf of one of its nationals or corporations.
Jurisdiction is often a crucial question for the Court in contentious cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court’s jurisdiction may be founded.
First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on “special agreement” or “compromise”). This method is based on explicit consent rather than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court’s jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court’s judgment.
Second, 36(1) also gives the Court jurisdiction over “matters specifically provided for … in treaties and conventions in force”. Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.
Third, Article 36(2) allows states to make optional clause declarations accepting the Court’s jurisdiction. The label “compulsory” which is sometimes placed on Article 36(2) jurisdiction is misleading since declarations by states are voluntary. Furthermore, many declarations contain reservations, such as exclusion from jurisdiction certain types of disputes (“ratione materia”). The principle of reciprocity may further limit jurisdiction. As of October 2006, sixty-seven states had a declaration in force. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court’s early years, most declarations were made by industrialized countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting a growing confidence in the Court since the 1980s. Industrialized countries however have sometimes increased exclusions or removed their declarations in recent years. Examples include the USA, as mentioned previously and Australia who modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later).
Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice‘s statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.
In addition, the Court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949) in which the Court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
Since States alone have capacity to appear before the Court, public (governmental) international organizations cannot as such be parties to any case before it. A special procedure, the advisory procedure, is, however, available to such organizations and to them alone.
Though based on contentious proceedings, the procedure in advisory proceedings has distinctive features resulting from the special nature and purpose of the advisory function. Advisory proceedings begin with the filing of a written request for an advisory opinion addressed to the Registrar by the United-Nations Secretary-General or the director or secretary-general of the entity requesting the opinion. In urgent cases the Court may do whatever is necessary to speed up the proceedings. In order that it may be fully informed on the question submitted to it, the Court is empowered to hold written and oral proceedings.
A few days after the filing of the request, the Court draws up a list of those States and international organizations likely to be able to furnish information on the question before the Court. In general, the States listed are the member States of the organization requesting the opinion, while sometimes the other states to which the Court is open in contentious proceedings are also included. As a rule, organizations and States authorized to participate in the proceedings may submit written statements, followed, if the Court considers it necessary, by written comments on these statements. These written statements are generally made available to the public at the beginning of the oral proceedings, if the Court considers that such proceedings should take place.
Contrary to judgments, and except in rare cases where it is stipulated beforehand that they shall have binding effect (for example, as in the Convention on the Privileges and Immunities of the United Nations, in the Convention on the Privileges and Immunities of the specialized agencies of the United Nations, and the Headquarters Agreement between the United Nations and the United States of America), the Court’s advisory opinions have no binding effect. The requesting organ, agency or organization remains free to decide, by any means open to it, what effect to give to these opinions.
Although without binding effect, the advisory opinions of the Court nevertheless carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between States.
Besides the above jurisdiction, I.C.J has another type of jurisdiction, known as “transferred jurisdiction”. Article 36(5) of the statute of I.C.J. provides “Declaration made under Article 36 of the statute of permanent Court of International Justice, and which are still in force shall be deemed as between the parties to the present statute, to be acceptance of the compulsory jurisdiction of the International Court justice for the period which they still have to run in accordance with their terms.” For instance, in case X and Y states conferred jurisdiction upon the permanent Court of International Justice for a period of 15 years and the P.C.I.J. was dissolved after the expiry of 5 years, International Court of Justice shall have jurisdiction for the remaining period of 10 years.
In Nicaragua vs. United States of America, the International Court of Justice has given in detail the interpretation of Para 5 of Article 36. This case was concerned with a dispute between Nicaragua and United States regarding certain military and Para-military activities in and against Nicaragua. In this case, Nicaragua contented that I.C.J. had jurisdiction in terms of the declaration of Nicaragua of 24th September 1929, under Para 5 of Article 36 and the declaration of United States of 14th August 1946, under Para 2 of Article 36 of the statute of the Court, the U.S. declaration was to remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate the declaration.”
On April 6, 1984, the United States withdrew unilaterally from the jurisdiction of the I.C.J. defying six months withdrawal notice rule. Thereupon Nicaragua formally sued United States in I.C.J. on April 9, 1984. In such situation, I.C.J. issued an order directing United States to cease and restrain from the mining of Nicaraguan waters or from blocking across to Nicaraguan ports in army war. In its judgment of November 1984, I.C.J. affirmed the rights of Nicaragua to sovereignty and to its political independence, not to be endangered by military and Para-military activities of United States. The Court rejected by 14 to 1 vote, the contention of United States that the Court had no jurisdiction and started its proceedings. The United States walked out of the case on January 18, 1985, defying the rules of the Court, although it rejoined I.C.J. in 1986 for the first time. Judge Nagendra Singh voted in favor of the above majority judgment. But he appended a separate opinion wherein he emphasized “that the jurisdiction of the Court as based on the Treaty of 1956 is clear, convincing and reliable.”
Beside this, Article 37 of the Statute of I.C.J. provides that “Whenever a treaty or Convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations or to the Permanent Court of International Justice, the matter shall, as between the parties to the present statute, be referred to the International Court of Justice.” In accordance with this provision, the International Court of Justice, exercised jurisdiction in Ambatlelos (Preliminary Objections) case, South-West African (Preliminary Objections), case and Barcelona Traction (Preliminary Objects) case.
Procedure to file cases before ICJ
The ICJ is vested with the power to make its own rules. Court procedure is set out in Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005). Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant who files a written memorial setting out the basis of the Court’s jurisdiction and the merits of its claim. The respondent may accept the Court’s jurisdiction and file its own memorial on the merits of the case.
A respondent who does not wish to submit to the jurisdiction of the Court may raise Preliminary Objections. Any such objections must be ruled upon before the Court can address the merits of the applicant’s claim. Often a separate public hearing is held on the Preliminary Objections and the Court will render a judgment. Respondents normally file Preliminary Objections to the jurisdiction of the Court and/or the admissibility of the case. Inadmissibility refers to a range of arguments about factors the Court should take into account in deciding jurisdiction; for example, that the issue is not justiciable or that it is not a “legal dispute”.
In addition, objections may be made because all necessary parties are not before the Court. If the case necessarily requires the Court to rule on the rights and obligations of a state that has not consented to the Court’s jurisdiction, the Court will not proceed to issue a judgment on the merits. If the Court decides it has jurisdiction and the case is admissible, the respondent will then be required to file a Memorial addressing the merits of the applicant’s claim. Once all written arguments are filed, the Court will hold a public hearing on the merits.
Once a case has been filed, any party (but usually the Applicant) may seek an order from the Court to protect the status quo pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctions in United States law. Article 41 of the statute allows the Court to make such orders. The Court must be satisfied to have prima facie jurisdiction to hear the merits of the case before granting provisional measures.
Applications to intervene
In cases where a third state’s interests are affected, that state may be permitted to intervene in the case, and participate as a full party. Under Article 62, a state “with an interest of a legal nature” may apply; however, it is within the Court’s discretion whether or not to allow the intervention. Intervention applications are rare — the first successful application occurred in 1991.
Judgment and remedies
Once deliberation has taken place, the Court will issue a majority opinion. Individual judges may issue separate opinions (if they agree with the outcome reached in the judgment of the court but differ in their reasoning) or dissenting opinions (if they disagree with the majority). No appeal is possible, though any party may ask for the court to clarify if there is a dispute as to the meaning or scope of the court’s judgment.
Enforcement of the judgment of the court
Article 94(1) of the U.N. Charter provides “Each members of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” A state which is not Member of the United Nations but it is a party to the statute, is also required to do so, as it is the essential condition for becoming a party to the statute according to the resolution of the General Assembly. Further, Para 2 of Article 94 provides, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
The above provision of the Article 94(2) of the charter is a procedure for appeal before the Security Council in case of non-compliance of court’s decision by a state party. The Security Council has discretion to opt between two different courses, either to make recommendations or to decide upon measures to be taken to give effect to the judgment of the court. Where the Security Council makes a recommendation, it may recommend to a party to comply with the decision of the court. But the Security Council is not bound to conform to the judgment of the court. Its solution may be different from the decision of the court. Under article 94(2) the aggrieved state is excluded from voting, where that state is not a member of the Council. But where the state which is not complying with the decision of the court is a permanent member of the Security Council, it can prevent the enforcement of the judgment by its veto.
ICJ and the Security Council
Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.’s non-compliance with the Court’s decision before the Security Council.
Furthermore, if the Security Council refuses to enforce a judgment against any other state, there is no method of forcing the state to comply.
The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdom and United States. The problem was that these sanctions had been authorized by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, prima facie could not be regarded as appropriate since the action was ordered by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations. Nevertheless the Court declared the application admissible in 1998. A decision on the merits has not been given since the parties (United Kingdom, United States and Libya) settled the case out of court in 2003.
There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.
Should either party fail “to perform the obligations incumbent upon it under a judgment rendered by the Court”, the Security Council may be called upon to “make recommendations or decide upon measures” if the Security Council deems such actions necessary. In practice, the Court’s powers have been limited by the unwillingness of the losing party to abide by the Court’s ruling, and by the Security Council’s unwillingness to impose consequences. However, in theory, “so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal,” and “by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party.”
For example, the United States had previously accepted the Court’s compulsory jurisdiction upon its creation in 1946, but in Nicaragua v. United States withdrew its acceptance following the Court’s judgment in 1984 that called on the U.S. to “cease and to refrain” from the “unlawful use of force” against the government of Nicaragua. The Court ruled (with only the American judge dissenting) that the United States was “in breach of its obligation under the Treaty of Friendship with Nicaragua not to use force against Nicaragua” and ordered the United States to pay war reparations.
Examples of contentious cases include:
- · A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
- · A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
- · A complaint by Pakistan on behalf of the people of Kashmir over oppression against India and charged it with State terrorism directly continuing violations of the international law.
- · A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.
- · A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organisation regarding their actions in the Kosovo War. This was denied on 15 December 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application.
Generally, the Court has been most successful resolving border delineation and the use of oceans and waterways. While the Court has, in some instances, resolved claims by one State espoused on behalf of its nationals, the Court has generally refrained from hearing contentious cases that are political in nature, due in part to its lack of enforcement mechanism and its lack of compulsory jurisdiction. The Court has generally found it did not have jurisdiction to hear cases involving the use of force.
Criticism in relation to the conclusion
The International Court has been criticised with respect to its rulings, its procedures, and its authority. As with United Nations criticisms as a whole, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings. Major criticisms include:
- “Compulsory” jurisdiction is limited to cases where both parties have agreed to submit to its decision, and, as such, instances of aggression tend to be automatically escalated to and adjudicated by the Security Council.
- Organizations, private enterprises, and individuals cannot have their cases taken to the International Court, such as to appeal a national supreme court’s ruling. U.N. agencies likewise cannot bring up a case except in advisory opinions (a process initiated by the court and non-binding).
- Other existing international thematic courts, such as the ICC, are not under the umbrella of the International Court.
- The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of even cases to which they consented in advance to be bound.
The measures to be taken by the Security Council may be either of the two kinds of action. The measures may be taken either under Article 41 or 42 of the U.N. charter. The decision may be taken by nine affirmative votes with concurring votes of five permanent members. So the decision of the Court cannot be enforced against a permanent member of the Security Council, as one finds in the case of Nicaragua vs. United States, where United State of America exercised veto against the decision of the Security Council. In nutshell, an effective and adequate procedure for the enforcement of judgment of the Court has still to be found out to ameliorate such a situation.However lastly it can be said that, the decisions of the Court are not precedents yet they are important guidance for future decisions of the Court. They are evidence of what the Court considers to be the law; they are reliable indication of the future attitude of the court; for most practical purpose, they show, therefore, what International law is.