From Wikipedia
International Court of Justice
"ICJ" redirects here. For the commission, see International Commission of Jurists.
Not to be confused with the International Criminal Court.
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 Palacein The Hague, Netherlands. Its main functions are to settle legaldisputes submitted to it by statesand 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, the United Stateswithdrew from compulsory jurisdiction in 1986,. The US now only accepts the court's jurisdiction on a case-by-case basis. Chapter XIV of the United Nations Charterauthorizes the UN Security Councilto 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
Main article: Judges of the International Court of Justice
Public hearing at the ICJ.
The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assemblyand 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 nationalityto 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 lawand 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 Chinauntil 1971, the People's Republic of Chinafrom 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 moralcharacter", 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 unanimousvote of other members of the Court. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the Nicaragua Case, the USAissued a communiqué suggesting that it could not present sensitive material to the Court because of the presence of judges from Eastern blocstates.
Judges may deliver joint judgments or give their own separate opinions. Decisions and Advisory Opinionsare 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 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. 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 environmentalmatters (although this chamber has never been used).
Ad hocchambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (USAv 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 June 2010, the composition of the Court is as follows:
Results of the last election of 6 November 2008:
Jurisdiction
Main article: Jurisdiction of the International Court of Justice
As stated in Article 93 of the UN Charter, all 192 UN members are automatically partiesto 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, Switzerlandused this procedure in 1948 to become a party. And Naurubecame 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 jurisdictionis 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 statesmay be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determinationgroups 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 Procedurebelow.) 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 treatieswill 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 Iranhostage crisis, Iranrefused 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 reciprocitymay further limit jurisdiction. As of February 2011, sixty-six states had a declaration in force. Of the permanent Security Councilmembers, only the United Kingdomhas 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 Australiawho modified their declaration in 2002 to exclude disputes on maritime boundaries(most likely to prevent an impending challenge from East Timorwho gained their independence two months later).[17]
- 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 Albaniastating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
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 opinionis a function of the Court open only to specified United Nationsbodies 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 UNagencies could seek theCourt'shelp 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 opinionsin the List of International Court of Justice casesarticle. One such well-known advisory opinion is the Nuclear Weapons Case.
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 Nicaraguabrought 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. Furthermore, the most effective form to take action for the Security Council - coercive action under chapter VIIof the United Nations Charter- can only be justified if international peace and securityare at stake. The Security Council has never done this so far.
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 Libyafor the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the United Kingdomand 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 faciecould 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 Stateshad previously accepted the Court's compulsory jurisdiction upon its creation in 1946, but in Nicaragua v. United Stateswithdrew 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 Stateswas "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
Main article: Sources of international law
When deciding cases, the Court applies international law as summarised in Article 38of the ICJ Statuteprovides 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 59makes clear that the common lawnotion of precedentor 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 courtsin 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 Justice1978 (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 hea,ring of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctionsin United States law. Article 41 of the statute allows the Court to make such orders. The Court must be satisfied to have prima faciejurisdiction 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.
Criticisms
The International Court has been criticised with respect to its rulings, its procedures, and its authority. As with United Nationscriticisms 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.
