The International Court of Justice
The International Court of Justice
THE INTERNATIONAL COURT OF JUSTICE
The International Court of Justice was established at the San Francisco Conference in 1945. It is a successor to and resembles the Permanent Court of International Justice created at the time of the League of Nations, but its competence is wider, because membership in the League did not automatically require a nation to join the Permanent Court. The International Court, however, is a principal organ of the UN, so that all UN members automatically become parties to its statute, which, modeled on that of the Permanent Court, was adopted as an integral part of the Charter. By joining the UN, each country binds itself, in the words of the Charter, "to comply with the decision of the International Court of Justice in any case to which it is a party." If any party to a case violates this obligation, the other party "may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."
The Charter further provides that nonmembers of the UN may become parties to the statute of the court "on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council." Two such countries—Nauru and Switzerland—became parties to the statute in this way.
The rules under which the court is constituted and by which it functions are laid down in the statute and detailed in rules adopted by the court itself. The seat of the court is the Peace Palace at The Hague in the Netherlands, but it can meet elsewhere if it so desires. The judges are bound "to hold themselves permanently at the disposal of the Court."
The court is funded from the regular budget of the UN, to whose members its services are otherwise free of charge.
JUDGES OF THE COURT
The court consists of 15 independent judges, known as "members" of the court. They are elected "from among persons of high moral character" without consideration of nationality, except that no two judges of the same nationality may serve concurrently. They must be persons possessing the qualifications required in their respective countries for appointment to the highest judicial offices or be jurists of recognized competence in international law. No judge of the International Court of Justice may exercise any political or administrative function or engage in any professional occupation. When engaged in the business of the court, judges enjoy diplomatic privileges and immunities. A newly elected judge must "make a solemn declaration in open court that he will exercise his powers impartially and conscientiously." A judge cannot be dismissed except by a unanimous decision of the other judges that "he has ceased to fulfill the required conditions." No such dismissal has ever occurred.
As in any court, a judge may disqualify himself from sitting on a particular case. The statute enumerates certain conditions under which this disqualification is obligatory—for example, if a judge was previously involved in the case as a member of a commission of inquiry.
SIGNIFICANCE OF NATIONALITY OF JUDGES
The statute declares specifically that a judge has the right to sit on a case in which his own country is a party. Furthermore, any country that is a party to a case before the court may add a person to sit as judge on that case if there is not already a judge of its nationality on the court. If there are "several parties in the same interest," they may add only one judge to the bench. Such ad hoc judges are chosen by the respective states themselves and may, or may not, be nationals of the states choosing them.
NOMINATION AND ELECTION OF JUDGES
Two international conferences at The Hague, in 1899 and 1907, contemplated the establishment of a permanent international court, but the conferees were unable to agree on a system for electing judges. They did agree, however, on a convention establishing a Permanent Court of Arbitration. That convention provides that each country that is a party to it shall name four jurists as arbitrators who will be available to consider a concrete matter for international arbitration. When the Permanent Court of International Justice was established after World War I, a solution was found for the difficult problem of electing judges. The legal experts named as potential arbitrators under the Hague convention were given the right to nominate candidates, and the League of Nations elected the judges from among these nominees. This system has in essence been preserved by the UN. To ensure that candidates are not mere government nominees, they are proposed by the groups of jurists already established in the Permanent Court of Arbitration or by similar groups specially constituted in countries not members of that court; no national group may nominate more than four persons, and only two of those may bear the nationality of the group.
The list of candidates so nominated then goes to the UN. To be elected to a judgeship on the court, a candidate must obtain an absolute majority in the Security Council and the General Assembly, both bodies voting independently and simultaneously. If more than one candidate of the same nationality obtains the required votes, the eldest is elected. In electing judges to the court, delegates are requested to bear in mind that "the main forms of civilization" and "the principal legal systems of the world" should be represented at all times on the international tribunal.
TERMS OF JUDGESHIPS
Judges are elected for nine years. To stagger the expiration of terms, the terms of five of the judges named in the first election (1946) expired at the end of three years, and the terms of five others at the end of six years, as determined by lot. Hence, five judges are now elected every three years. Reelection is permissible and frequently occurs. Every three years, the court elects its president and vice-president from among the judges. Unless reelected, judges chosen to fill a casual vacancy serve only for the remainder of their predecessor's term.
The composition of the court as of 6 February 2006 was as follows: President Rosalyn Higgins (United Kingdom); Vice-President Awn Shawkat Al-Khasawneh (Jordan); Judges Raymond Ranjeva (Madagascar); Shi Jiuyong (China); Abdul G. Koroma (Sierra Leone); Gonzalo Parra-Aranguren (Venezuela); Thomas Buergenthal (United States of America); Hisashi Owada (Japan); Bruno Simma (Germany); Peter Tomka (Slovakia); Ronny Abraham (France); Kenneth Keith (New Zealand); Bernardo Sepúlveda Amor (Mexico); Mohamed Bennouna (Morocco); Leonid Skotnikov (Russian Federation).
Normally, all judges sit to hear a case, but nine judges (not counting an ad hoc judge) constitute a quorum. The statute of the court makes provision for the formation of chambers for summary procedure, for particular categories of cases, or for an individual case. A Chamber for Environmental Matters were established by the court in July 1993. Since 1945, seven cases were referred to a chamber-in 1982, 1985, two in 1987, 1993, and two in 2002. A judgment delivered by a chamber is considered as rendered by the court.
PROCEDURE OF THE COURT
All questions are decided by a majority vote of the judges present. If the votes are equal, the president has the casting, or deciding, vote. The judgments have to be read in open court and are required to state the reasons on which they are based and the names of the judges constituting the majority. Any judge is entitled to append to the judgment a personal opinion explaining his or her concurrence or dissent. All hearings are public unless the court decides, whether at the request of the parties or otherwise, that the public should not be admitted.
Judgments are final and without appeal. An application for revision will be considered by the court only if it is based on the discovery of some decisive fact that at the time of the judgment was unknown to both the court and the party seeking revision. Should a dispute arise concerning the meaning or scope of a judgment, the court shall interpret it at the request of any party.
In order to simplify and expedite recourse to it, the court amended its Rules of Court in 1972. A completely overhauled set of rules, incorporating those amendments, was adopted in 1978. The latest version of the rules dates from 5 December 2000.
COMPETENCE AND JURISDICTION OF THE COURT
Only states can be parties in cases before the court. Hence, proceedings may not be instituted by or against an individual, corporation, or other entity that is not a state under international law. However, if certain rules are satisfied, a state may take up a case involving one of its nationals. Thus, the Nottebohm Case (Liechtenstein v. Guatemala), in which a judgment was rendered on 6 April 1955, involved a claim by Liechtenstein in regard to injuries sustained by a German-born, naturalized citizen of Liechtenstein as a result of certain measures that Guatemala had taken during World War II.
All countries that are parties to the statute have automatic access to the court and can refer any case they wish to the court. In addition, the Security Council may recommend that a legal dispute be referred to the court.
Under the Charter, nations are not automatically obliged to submit their legal disputes for judgment. At the San Francisco Conference, it was argued by some that the court should be given compulsory jurisdiction and that UN members should bind themselves to accept the court's right to consider legal disputes between them. This proposal would have meant that if one member filed a case against another member, the court would automatically, and without reference to the second member concerned, have the right to try the case. The proposal was rejected because some delegates feared that such a provision might make the statute unacceptable to their countries. Moreover, it was generally felt that since the disputants in an international court are sovereign states, they should not be summoned against their will to submit to the court's jurisdiction. Thus, the court cannot proceed to adjudicate a case unless all parties to the dispute have consented that it should do so. Such consent comes about mainly in one of the following three ways.
- There can be a specific agreement between the parties to submit a dispute to the court. This is the simplest method and the one employed in several recent cases.
- There can be specific clauses contained in treaties and conventions. Many treaties and conventions expressly stipulate that disputes that may arise under them, such as a claim by one country that a treaty has been violated by another country, will be submitted to the court for decision. More than 430 treaties and conventions, including peace treaties concluded after World War II, contain clauses to this effect, a fact which attests to the readiness of countries to agree in advance to accept judicial settlement.
- There can be voluntary recognition in advance of the compulsory jurisdiction of the court in specified types of disputes. Article 36 of the statute states that all parties to the statute "may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation."
Such declarations may be made for only a limited period if desired and with or without any conditions, or they may state that they will become operative only when a particular country or number of countries accept the same obligation. The most far reaching reservation that has been attached to a declaration is the condition that the court must not adjudicate any dispute that the country itself determines to be an essentially domestic matter. In effect, this reservation leaves the country free to deny the court's jurisdiction in most cases in which it might become involved. In general, the practical significance of many of the declarations is severely limited by the right to make conditions. As of February 2006, declarations recognizing the compulsory jurisdiction of the court had been made by 66 states, with a number of them excluding certain categories of dispute.
The jurisdiction of the court therefore comprises all legal disputes which the parties to the statute refer to it and all matters specifically provided for in the UN Charter or in treaties and conventions in force. In the event of a dispute as to whether the court has jurisdiction, the statute provides that the matter shall be decided by the court. Article 38 of the statute requires that in deciding the disputes submitted to it, the court shall apply the following: (1) international conventions establishing rules recognized by the contesting states; (2) international custom as evidence of a general practice accepted as law; (3) the general principles of law recognized by civilized nations; and (4) judicial decisions and teachings of the most highly qualified publicists of the various nations as a subsidiary means for determining the rules of law. In certain cases, however, if the parties concerned agree, the court may decide a case ex aequo et bono —that is, by a judgment in equity taken simply on the basis of what the court considers is right and good.
The Charter provides that the General Assembly and the Security Council may request the court to give an advisory opinion on any legal question and that other UN organs and specialized agencies, when authorized by the General Assembly, may also request advisory opinions on legal questions arising within the scope of their activities. In such cases, the court does not render a judgment but provides guidance for the international body concerned. Thus, advisory opinions by their nature are not enforceable, and, although the bodies may receive them with respect, they may not necessarily find it politic to act on them. In some cases, however, the requesting body will be committed to abide by the court's decision.
EXTRAJUDICIAL FUNCTIONS OF THE COURT
Many international conventions, treaties, and other instruments confer upon the International Court of Justice or its president the function of appointing umpires or arbitrators in certain eventualities. Furthermore, even when no treaty provision to this effect exists, the court or individual judges may be requested to carry out functions of this nature.
Review of the Role of the Court
In 1970, citing the relative lack of activity of the court, nine member states sponsored a General Assembly agenda item on a review of the role of the court. In an explanatory memorandum, they noted that the situation at that time was "not commensurate with either the distinction of the judges or the needs of the international community." Proposals for remedying the situation included a revision of the court's statute and rules of procedure, the appointment of younger judges and/or shorter terms of office, and wider acceptance of the court's compulsory jurisdiction.
The subject was debated at four subsequent sessions of the General Assembly, culminating in the adoption in 1974 of a resolution designed to strengthen the role of the court. The recommendations included the possible insertion of clauses in treaties that would provide for submission to the court of disputes arising from differences in their interpretation or application; acceptance of the compulsory jurisdiction of the court with as few reservations as possible; and greater recourse to the court by UN organs and specialized agencies for advisory opinions.
SURVEY OF COURT PRACTICE
Since the court's inauguration in 1946, states have submitted more than 100 legal disputes to it, and international organizations have requested 25 advisory opinions.
Of the cases submitted to the court by states, some were withdrawn by the parties or removed from the list for some other reason. In still others, the court found that, under its statute, it lacked jurisdiction. The remaining 92 cases on which the court has rendered judgment encompassed a wide range of topics, including sovereignty over disputed territory or territorial possessions, the international law of the sea, and commercial interests or property rights either of states or of private corporations and persons. (Examples of these types of disputes are given in the case histories below.)
Many of the cases, including some that fall into the three categories just described, involve differences in interpretations of specific bilateral or multilateral treaties and other legal instruments. Thus, in the case of the rights of US citizens in Morocco (France v. United States), the court found, on 27 August 1952, that the prohibition of certain imports into Morocco had violated US treaty rights. However, it rejected the US claim that its citizens were not subject in principle to the application of Moroccan laws unless they had received the United States's prior assent.
The 25 advisory opinions requested by the General Assembly, Security Council, or authorized specialized agencies likewise have dealt with a variety of matters. The court, on 16 October 1975, rendered an opinion in response to a request made by the General Assembly at its 1974 session. The question concerned Western Sahara, which was passing from Spanish administration. Morocco, Mauritania, and Algeria, all bordering states, took conflicting positions on ties of sovereignty that might have existed before the territory came under Spanish administration. The court concluded that no ties of territorial sovereignty between Western Sahara and the Kingdom of Morocco or the Mauritanian entity had existed. In the decolonization of the territory, therefore, the principle of self-determination through the free expression of the will of its people should apply in accordance with the relevant General Assembly resolution.
Another opinion concerned the question of whether the costs of the peacekeeping operations in the Middle East and the Congo could, within the scope of Article 17 of the Charter, be regarded as expenses of the organization to be financed by contributions of member states, as assessed by the General Assembly. In its opinion, issued on 20 July 1962, the court concluded that the expenses of both operations could be regarded as expenses of the UN within the meaning of Article 17 of the Charter.
Recent advisory opinions were rendered in July 1996 in response to a request made by the World Health Organization on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict; and a request made by the UN General Assembly on the Legality or Use of Nuclear Weapons.
As of February 2006, 10 cases were pending:
- Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
- Gabcikovo-Nagymaros Project (Hungary/Slovakia)
- Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo)
- Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia and Montenegro)
- Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras)
- Territorial and Maritime Dispute (Nicaragua v. Colombia)
- Certain Criminal Proceedings in France (Republic of the Congo v. France)
- Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge(Malaysia/Singapore)
- Maritime Delimitation in the Black Sea (Romania v. Ukraine)
- Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua)
SOME CASE HISTORIES OF DISPUTES SUBMITTED TO THE COURT
Disputes over Territorial Claims and Territorial Possessions
In the Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands ), the court traced developments that had begun before the 1839 separation of the Netherlands from Belgium, and in its judgment, on 20 June 1959, it decided that sovereignty over the disputed plots belonged to Belgium.
In a dispute regarding sovereignty over certain islets and rocks lying between the British Channel island of Jersey and the French coast, the Minquier and Ecrehos Islands Case, the United Kingdom and France invoked historical facts going back to the 11th century. The United Kingdom started its argument by claiming title from the conquest of England in 1066 by William, Duke of Normandy. France started its argument by pointing out that the dukes of Normandy were vassals of the king of France and that the kings of England after 1066, in their capacity as dukes of Normandy, held the duchy in fee from the French kings. The court decided, on 17 November 1953, that "the sovereignty over the islets and rocks of the Ecrehos and Minquier groups, insofar as these islets and rocks are capable of appropriation, belongs to the United Kingdom."
In 1980, in a case brought by the United States concerning the seizure of its embassy in Teheran and the detention of its diplomatic and consular staff, the court held that Iran must release the hostages, hand back the embassy and make reparations. However, before the court fixed the amount of reparation, the case was withdrawn following agreement reached between the parties.
In the first frontier dispute between two African states, by a special agreement Burkina Faso and Mali submitted to a chamber of the court in October 1983 the question of the delimitation of part of the land frontier between them. In January 1986, the court ordered interim measures of protection in order to restore peace between the two states following armed hostilities at the end of 1985. The court gave its final judgment in December 1986, establishing the coordinates for the delimitation of the frontier.
In 1984, Nicaragua alleged that the United States was using military force against it and intervening in its internal affairs. The United States denied that the court had jurisdiction. After written and oral proceedings, the court found, however, that it had jurisdiction and that Nicaragua's application was admissible. The United States refused to recognize either this ruling or the subsequent 1986 judgment in which the court determined that the United States had acted in breach of its obligations toward Nicaragua, must desist from the actions in question, and should make reparation. The request by Nicaragua that the court determine the form and amount of reparation was withdrawn in 1991.
In a case between Libya and Chad, the two countries submitted to the court a territorial dispute relating to the Aozou Strip in the Sahara. Libya's claim as made in the case extended far to the south of that strip of land. The court, in a judgment of 3 February 1994, found wholly in favor of Chad. After an agreement on the implementation of the judgment had been concluded between the two parties, Libyan forces, monitored by an observer force deployed by the Security Council, withdrew from the Aozou strip by 31 May 1994.
Disputes Relating to the Law of the Sea
The Corfu Channel Case (United Kingdom v. Albania ), the first case decided by the court, was brought before it at the suggestion of the Security Council. On 22 October 1946, two UK destroyers passing through the Corfu channel off the Albanian coast struck mines whose explosion caused the death of 46 seamen and damage to the ships. The British thereupon mineswept the channel. Albania claimed that it had not laid the mines. The court found Albania "responsible under international law for the explosions … and for the damage and loss of human life that resulted therefrom" and determined the compensation due to the United Kingdom at £843,947, equivalent to approximately us$ 2.4 million at that time. The court also found that the British mine-sweeping activities in Albanian territorial waters had violated international law. The unanimous rejection by the court of the British claim that the action was justified under the principle of "self-protection" constituted the first judicial finding that the use of force for self-help is in certain circumstances contrary to international law.
In 1981, Canada and the United States submitted to a chamber of the court a question as to the course of the maritime boundary dividing the continental shelf and fisheries zones of the two countries in the Gulf of Maine area. In its judgment of 12 October 1984, the chamber of the court established the coordinates of that boundary. On 3 June 1985, the court delivered a judgment in a dispute relating to the delimitation of the continental shelf between Libya and Malta that had been referred to the court in 1982 by means of a special agreement specifically concluded for that purpose. On 14 June 1993, the court delivered a judgment in a maritime delimitation dispute between Denmark and Norway. On 16 March 2001, the court delivered a judgment in a maritime and land dispute between Bahrain and Qatar. On 10 October 2002, the court decided a case between Cameroon and Nigeria over the question of sovereignty over the Bakassi Peninsula, over the maritime boundary between the two states, and over sovereignty over part of Cameroon in the area of Lake Chad.
Disputes Involving Commercial Interests and Property Rights
The Anglo-Iranian Oil Co. Case grew out of a law passed by Iran on 1 May 1951, terminating the concessions of the Anglo-Iranian Oil Co. and expropriating the company's refinery at Abadan, the largest in the world. On 5 July, the court ordered important "interim measures" enjoining the two governments to refrain from any action that might aggravate the dispute or hinder the operation of the company. The company was to continue under the same management as before nationalization, subject to such modification as agreed to by a special supervisory board, which the court requested the two governments to set up. A year later, however, on 22 July 1952, the court, in its final judgment, ruled that it lacked jurisdiction and lift ed the "interim measures." The court found that the 1933 agreement, which gave the Iranian concession to the Anglo-Iranian Oil Co. and which the United Kingdom claimed had been violated by the act of nationalization, was merely a concessionary contract between Iran and a foreign corporation. The court ruled that the interpretation of such a contract was not one of the matters in regard to which Iran had accepted the compulsory jurisdiction of the court. The controversy was settled by negotiations in 1953, after the Mossadegh regime in Iran had been replaced by another government.
The Barcelona Traction Case (Belgium v. Spain) arose out of a 1948 adjudication by a provincial Spanish law court of the bankruptcy of a company incorporated in Canada with subsidiaries operating in Barcelona. Belgium was seeking reparation for damages alleged to have been sustained by Belgian shareholders in the company as a result of the Spanish court's adjudication, which Belgium claimed was contrary to international law. The court, on 5 February 1970, found that the Belgian government lacked the standing to exercise diplomatic protection of Belgian shareholders in a Canadian company with respect to measures taken against that company in Spain.
(The complete text of all of the Court's decisions-from 1946 up to the present date-can be accessed at the ICJ's web site at www.icj-cij.org/icjwww/idecisions.htm.)