- ICJ redirects here, see also International Commission of
Jurists
The
International Court of 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
state and to give 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 also potentially 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.
The Court's workload is characterised 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, 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 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
Public hearing at the ICJ.
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. 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 did not have a judge on
the Court from 1967–1985, because it did not put forward a
candidate. The rule on a
geopolitical composition of the bench exists
despite the fact that there is 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 is 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 could not 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 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.
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 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.
Current composition
As of 6 February 2009, the composition of the Court is as
follows:
Results of the last election of 6 November 2008:
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 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
state 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.
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 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.
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 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 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, 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:
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"), 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 1990.
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.
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 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.
Building
See also
Notes
- Statute of the International Court of Justice.
Accessed 31 August 2007.
- ICJ Statute, Article 18(1)
- Case Concerning Military and Paramilitary Activities In and
Against Nicaragua (Nicaragua v USA), [1986] ICJ Reports 14,
158-60 (Merits) per Judge Lachs.
- 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.
- 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).
Accessed 17 December 2005.
- Schwebel S "Ad Hoc Chambers of the International Court of
Justice" (1987) 81 American Journal of International Law
831.
- www.un.org, Five judges elected to serve on UN
International Court of Justic
- etaiwannews.com,World's top court among nations gets new
judges
- The jurisdiction is discussed in the entire Chapter XIV of the
UN Charter
(Articles 92-96). Full text
- See the Nottebohm Case (Liechtenstein v Guatemala),
[1955] ICJ Reports 4.
- See List of
treaties that confer jurisdiction on the ICJ.
- Case Concerning United States Diplomatic and Consular Staff
in Tehran (USA v Iran), [1979] ICJ Reports 7.
- See Charney J "Compromissory Clauses and the Jurisdiction of
the International Court of Justice" (1987) 81 American Journal
of International Law 855.
- See Alexandrov S Reservations in Unilateral Declarations
Accepting the Compulsory Jurisdiction of the International Court of
Justice (Leiden: Martinus Nijhoff, 1995).
- For a complete list of countries and their stance with the ICJ,
see Declarations Recognizing as Compulsory the
Jurisdiction of the Court. Accessed 31 August 2008.
- Australia, East Timor strike oil, gas deal by Bob
Burton, Asia Times, 17 May 2005, accessed 4-21-06.
- The UN General Assembly Requests a World Court
Advisory Opinion On Israel's Separation Barrier, Pieter
H.F. Bekker, ASIL (American Society of International Law)
Insights, December 2003.
- Statute of the International Court of Justice, Article
38(2)
- Schwebel S "Ad Hoc Chambers of the International Court of
Justice" (1987) 81 American Journal of International Law
831.
- Statute of the International Court of Justice, Article 60
Further reading
- Rosenne S, Rosenne's the world court: what it is and how it
works 6th ed (Leiden: Martinus Nijhoff, 2003).
External links
's Christopher Greenwood, Brazil
) and Maurice Kamto (Cameroon) lost in the final
voting. The 3 new judges replaced UK
’s Raymond Ranjeva
(terms all expired on 5 February 2009).
in violation
of international law.
and Libya
on behalf of the people of Kashmir
over oppression against India
and charged
it with State terrorism directly
continuing violations of the international law.
area.
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.
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