Dame Rosalyn Higgins DBE United Kingdom The
International Court of Justice (known colloquially as the
World Court or
ICJ;
French:
Cour internationale de Justice) 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 should not be confused with the
International Criminal Court or a court exercising jurisdiction under
Belgium's
War Crimes Law, both of which also potentially have "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
states and to give advisory opinions on legal questions submitted to it by duly authorized international organs and agencies. The number of
decisions made by the ICJ has been relatively small, but there has clearly been an increased willingness to use the Court since the
1980s, especially among
developing countries, although the
United States withdrew from compulsory jurisdiction in
1986, meaning it accepts the court's jurisdiction on only a case-to-case basis.
Composition 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 is not already on the bench.
Ad hoc judges participate fully in the case and the deliberations, along with the permanent bench. Thus, 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. Although this system does not sit well with the judicial nature of the body, it is 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.
Ad hoc judges 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).
Chambers As of March 2007, the composition of the Court is as follows:
In addition to the President and Vice-President, the ICJ judges are:
President:
Lady Higgins DBE (
United Kingdom)
Vice-President:
Awn Shawkat Al-Khasawneh (
Jordan)
Raymond Ranjeva (
Madagascar)
Shi Jiuyong (
China)
Abdul G. Koroma (
Sierra Leone)
Gonzalo Parra Aranguren (
Venezuela)
Thomas Buergenthal (
United States)
Hisashi Owada (
Japan)
Bruno Simma (
Germany)
Peter Tomka (
Slovakia)
Ronny Abraham (
France)
Sir
Kenneth Keith KBE (
New Zealand)
Bernardo Sepúlveda Amor (
Mexico)
Mohamed Bennouna (
Morocco)
Leonid Skotnikov (
Russia)
Current composition Main article: Jurisdiction of the International Court of Justice Jurisdiction In contentious cases, 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 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.
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 ICJ's 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 its jurisdiction explicitly or simply pleads
on the merits. The notion arose in the
Corfu Channel Case (UK v Albania) in which it was held that letter from
Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
Contentious issues 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 consultative in character, though they are also 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.
Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as a "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.
Advisory opinion 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 will 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 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 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, in
Nicaragua v. United States the
United States had previously accepted the Court's compulsory jurisdiction upon its creation in
1946 but 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:
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.
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 was not a party to the ICJ statute at the time it made the application.
The ICJ and the Security Council Main article: Sources of international law Procedure 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. 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 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.
Preliminary Objections 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
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.
Applications to intervene Criticisms of the International Court range from its rulings, its procedures, to its authority. As with
United Nations criticisms as a whole, many of these criticisms refer more to the authority assigned to the body by member states through its charter rather than to problems with the specific composition of judges or their rulings.
"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 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.
Criticisms UN Economic and Social Council UN Secretariat UN Trusteeship Council List of treaties that confer jurisdiction on the ICJ International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for Rwanda International Criminal Court List of International Court of Justice cases Nicaragua v. United States Bosnia and Herzegovina v. Serbia and Montenegro Mundialization World citizen Global Security Institute International Human Rights Association Notes Rosenne S,
Rosenne's the world court: what it is and how it works 6th ed (Leiden: Martinus Nijhoff, 2003).
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