International Court of Justice


International Court of Justice
Cour internationale de justice
Established
1945
Jurisdiction
Worldwide, 193 State Parties
Location
The Hague, Netherlands


Authorized by
UN Charter
ICJ Statute
Judge term  length
9 years
Number of positions
15
Website
www.icj-cij.org
President
Currently
Hisashi Owada[1]





Peace Palace, seat of the ICJ
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. Its main functions are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. The ICJ should not be confused with the International Criminal Court, which potentially also has global jurisdiction.

Activities

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.[1]The Court's workload covers a wide range of judicial activity. To date, the ICJ has dealt with relatively few cases. However, since the 1980s there has been a clear increase in willingness to use the Court, especially among developing countries. After the court ruled that its covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986. The US now only accepts the court's jurisdiction on a case-by-case basis.[2] Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce World Court rulings. However, 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.

Composition

The ICJ is composed of fifteen 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. 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 did not have a judge on the Court from 1967–1985, because it did not put forward a candidate. 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 is no conflict of interest. A judge can be dismissed only by a unanimous vote of other members of the Court.[3] 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 could not present sensitive material to the Court because of the presence of judges from Eastern bloc states.[4] 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.[5]

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 choosing. It is 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 will 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.

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).[6] In that case, the parties made clear they would 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.[7]

Jurisdiction

As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the Court's statute.[8] 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 issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.

Contentious issues

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.[9] 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.
  1. 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.
  2. 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.[10] 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..[11]
  3. 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").[12] The principle of reciprocity may further limit jurisdiction. As of February 2011, sixty-six states had a declaration in force. 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).[13]
  4. 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.

 

Advisory opinion

Audience of the "Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo" 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 are 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 are inherently non-binding under the Statute of the Court. This non-binding character does not 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 is the official pronouncement of the principal judicial organ of the United Nations.[14]. One such well-known advisory opinion is the Nuclear Weapons Case.
Examples of contentious cases include:
  1. A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
  2. A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
  3. 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.
  4. A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.
  5. A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organization regarding their actions in the Kosovo War. This was denied on December 15, 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.

Law applied

When deciding cases, the Court applies international law as summarised in 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 is not 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 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. If the parties agree, they may also grant the Court the liberty to decide ex aequo et bono ("in justice and fairness"),[15] 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.

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 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.[16]                                  

                                             

REFERANCE

BOOKS
  1. Sk kapoor “International law and human rights”5th ed.(Kolkata law publication 2001).page.495
  2. Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ Reports 14, 158–60 (Merits) per Judge Lachs.
  3. This occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO), [1996] ICJ Reports 66.
  4. Rules of Court of the International Court of Justice 1978 (as amended on 5 December 2000). Accessed 17 December 2005. See also Practice Directions I-XII (as at 30 July 2004). I last visit on 21 -07- 2011.
JOURNAL
  1. Schwebel S "Ad Hoc Chambers of the International Court of Justice" (1987) 81 American Journal of International Law 831.
Web page
  1. www.un.org, Five judges elected to serve on UN International Court of Justic I last visit on 15-07-2011.
  2.  http://www.etaiwannews.com/etn/news_content.php?id=782887 I last visit on 18-07-2011.
  3. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, International Court of Justice, 27 February 1998
STATUTE
Statute of the International Court of Justice, 1945


[1]   Statute of the International Court of Justice1945. I last visit on 21 -07- 2011.

[2]   Ibid.
[4]   Sk kapoor “International law and human rights”5th ed.(Kolkata law publication 2001).page.495
[5]   www.un.org, Five judges elected to serve on UN International Court of Justic I last visit on 15-07-2011.

[6]   Ibid, Article ,60
[7]   Ibid.
[8]   ICJ Statute ,article 93
[9]   Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ Reports 14, 158–60 (Merits) per Judge Lachs.
[10]   Ibid, Article ,36
[11]   Schwebel S "Ad Hoc Chambers of the International Court of Justice" (1987) 81 American Journal of International Law 831.
[12]   Ibid
[13]   Rules of Court of the International Court of Justice 1978 (as amended on 5 December 2000). Accessed 17 December 2005. See also Practice Directions I-XII (as at 30 July 2004). I last visit on 21 -07- 2011.

[14]   Ibid, Article ,38
[15]   This occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO), [1996] ICJ Reports 66.

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