Everything about The International Court Of Justice totally explained
The
International Court of Justice (known colloquially 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, sharing the building with the
Hague Academy of International Law, a private centre for the study of international law. Several of the Court's current judges are either alumni or former faculty members of the Academy.
Established in
1945 by the
UN Charter, 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 ICJ shouldn't be confused with the
International Criminal Court, which also potentially has "global" jurisdiction.
English and
French are its two
official languages.
The Court's workload is characterised by a wide range of judicial activity. Its main functions are to settle
legal disputes submitted to it by member
states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies and the UN General Assembly. 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, and so accepts the court's jurisdiction only on a case-to-case basis.
Chapter XIV of the United Nations Charter authorizes the
UN Security Council to enforce World Court rulings, but this is subject to the veto of the permanent five members of the Council. Presently there are twelve cases on the World Court's docket.
Composition
The ICJ is composed of 15 judges elected to nine year terms by the
UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the
Permanent Court of Arbitration. The election process is set out in Articles 4–12 of the ICJ statute. Judges serve for nine year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.
Should a judge die in office, the practice has generally been to elect a judge of the same
nationality to complete the term. No two may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, this has meant
common law,
civil law and
socialist law (now post-communist law). Since the
1960s four of the five permanent members of the Security Council (
France,
Russia, the
United Kingdom, and the
United States) have always had a judge on the Court. The exception was China (the
Republic of China until
1971, the
People's Republic of China from 1971 onwards), which didn't have a judge on the Court from
1967-
1985, because it didn't put forward a candidate. The rule on a
geopolitical composition of the bench exists despite the fact that there's no provision for it in the Statute of the ICJ.
Article 2 of the Statute provides that all judges should be "elected regardless of their nationality among persons of high
moral character", who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law. Judicial independence is dealt specifically with in Articles 16-18. Judges of the ICJ are not able to hold any other post, nor act as
counsel. In practice the Members of the Court have their own interpretation of these rules. This allows them to be involved in outside arbitration and hold professional posts as long as there's no conflict of interest. A judge can be dismissed only by a
unanimous vote of other members of the Court. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the
Nicaragua Case, the
USA issued a communiqué suggesting that it couldn't present sensitive material to the Court because of the presence of judges from
Eastern bloc states.
Judges may deliver joint judgments or give their own separate opinions. Decisions and
Advisory Opinions are by majority and, in the event of an equal division, the President's vote becomes decisive. Judges may also deliver separate dissenting opinions.
Ad hoc judges
Article 31 of the statute sets out a procedure whereby
ad hoc judges sit on contentious cases before the Court. This system allows any party to a contentious case to nominate a judge of their choice (usually of their nationality), if a judge of their nationality isn't already on the bench.
Ad hoc judges participate fully in the case and the deliberations, along with the permanent bench. Thus, it's possible that as many as seventeen judges may sit on one case.
This system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases to the Court. For example, if a state knows it'll have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, that state may be more willing to submit to the Court's jurisdiction. Although this system doesn't sit well with the judicial nature of the body, it's usually of little practical consequence.
Ad hoc judges usually (but not always) vote in favour of the state that appointed them and thus cancel each other out.
Chambers
Generally, the Court sits as full bench, but in the last fifteen years it has on occasion sat as a chamber. Articles 26-29 of the statute allow the Court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation of
ad hoc chambers to hear particular disputes. In
1993 a special chamber was established, under Article 26(1) of the ICJ statute, to deal specifically with
environmental matters (although this chamber has never been used).
Ad hoc chambers are more frequently convened. For example, chambers were used to hear the
Gulf of Maine Case (
USA v
Canada). In that case, the parties made clear they'd withdraw the case unless the Court appointed judges to the chamber who were acceptable to the parties. Judgments of chambers may have less authority than full Court judgments, or may diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of chambers might encourage greater recourse to the Court and thus enhance international
dispute resolution.
Current composition
As of March 2007, the composition of the Court is as follows:
Jurisdiction
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 member nations,
Switzerland used this procedure in
1948 to become a party;
Nauru also became a party in
1988. Once a state is a party to the Court's statute, it's entitled to participate in cases before the Court. However, being a party to the statute doesn't automatically give the Court jurisdiction over disputes involving those parties. The issue of
jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.
Contentious issues (adversarial proceedings)
In contentious cases (adversial 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 organisations. This doesn't 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. (See
Procedure below.) 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 "compromis"). 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 industrialised countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting a growing confidence in the Court since the 1980s. Industrialised 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.
Advisory Opinion
An
advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court's advisory opinions are only consultative in character, though they're influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they're inherently non-binding under the Statute of the Court. This non-binding character doesn't mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it's the official pronouncement of the principal judicial organ of the United Nations.
Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as an indirect "backdoor" way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section
advisory opinions in the
List of International Court of Justice cases article. One such well-known advisory opinion is the
Nuclear Weapons Case.
The 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 don't 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's 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 authorised 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 couldn't order the requested provisional measures because the rights claimed by Libya, even if legitimate under the
Montreal Convention,
prima facie couldn't 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 hasn't 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's no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there's 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's 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 (see note 2).
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 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 wasn't 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 didn't have jurisdiction to hear cases involving the use of force..
Law applied
When deciding cases, the Court applies international law as summarised in Article 38. Article 38 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 isn't formally bound by its previous decisions under the doctrine of stare decisis. Article 59 makes clear that the common law notion of precedent or stare decisis doesn't 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.
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. The Court operating under ex aequo et bono would act in some ways similar to a mediator. However, this provision hasn't been used in the Court's history. So far the International Court of Justice has dealt with about 130 cases.
Procedure
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.
Preliminary Objections
A respondent who doesn't 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. These objections must be ruled upon by the Court before it can proceed on the merits. 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 isn't justiciable or that it isn't 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 hasn't consented to the Court's jurisdiction, the Court won't 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's within the Court's discretion whether or not to allow the intervention. Intervention applications are rare - the first successful application occurred in 1990.
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.
Criticisms
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 can't have their cases taken to the International Court, such as to appeal a national supreme court's ruling. U.N. agencies likewise can't 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 doesn't 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.Further Information
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