International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). As such, its primary role is to assist the other organs of the UN achieve the objective of the United Nations Charter (UN Charter); namely, the peaceful resolution of disputes between states. The Court fulfills this responsibility by resolving legal questions so that either the parties or the UN can find a political solution. The Court sits in the famous Peace Palace in The Hague, the Netherlands.

history

The ICJ is the successor to the Permanent Court of International Justice (PCIJ), which was forced to relocate to Geneva during World War II (1939–1945). Although the PCIJ continued with administrative matters, its operations effectively ceased. No mention of a world court occurred in the initial planning for postwar reconstruction (the Atlantic Charter and the Four Nations Declaration on General Security in Moscow). Instead, separate committees in Latin America, the United States, and Great Britain began discussions on the subject, the key issue being whether to retain the PCIJ or create a new international court.

The Inter-American Juridical Committee formed in January 1942 emphasized the need to maintain continuity with the PCIJ. In late 1942 the U.S. Special Subcommittee on Legal Problems favored the creation of a new court based on a revised statute of the PCIJ. A report of the Informal Inter-Allied Committee of Experts in England concluded in May 1943 that the PCIJ Statute should form the basis for a world court; however, it viewed a decision on whether the PCIJ should be that court as beyond the committee's competence. Even the Dumbarton Oaks Proposals remained inconclusive, despite mentioning an international court of justice.

Some consensus emerged when the Committee of Jurists, comprising representatives from a total of forty-four nations, as well as the PCIJ, met in Washington, D.C., on April 9, 1945, and drafted a new statute for the forthcoming San Francisco Conference. At San Francisco it was decided that a new court would be created, but one having continuity with the PCIJ by referring to the PCIJ Statute in Article 92 of the new court's statute, itself an integral part of the UN Charter.

On April 18, 1946, the League of Nations voted itself and the PCIJ out of existence. The very same day the ICJ held its inaugural session at the Peace Palace and heard its first matter, the Corfu Channel case, on May 22, 1947.

structure and jurisdiction

The ICJ is comprised of fifteen full-time judges, each a different nationality. In accordance with Article 9 of its Statute, the Court must represent the main forms of civilization and the world's principal legal systems. Thus, seats on the bench are allocated as follows: Western Europe and other states, five seats; Asia, three seats; Africa, three seats; Eastern Europe, two seats; and Latin America, two seats.

Members are elected independently by a majority in both the Security Council and the General Assembly and serve for nine years. Elections are staggered so that they are held every three years for five members, unless a member dies or resigns. The Court elects its president and vice president by absolute majority, and each holds office for three years. The president may cast a vote in split decisions.

In addition, ad hoc judges may be appointed to ensure that one member of the bench is the same nationality as each party in a dispute. This procedure has been criticized on the grounds that it destroys the international character of the Court and contravenes the legal principle that no man or woman should be a judge in his or her own cause.

To shorten resolution times, the ICJ Statute permits the creation of chambers: the Chamber of Summary Procedure, established annually and consisting of a president and vice president ex officio, and three other members; a special chamber, consisting of three or more members; and an ad hoc chamber that can be set up as required with as many judges as the Court determines and the parties approve.

Pursuant to its Statute, the Court can consider only questions of international law in both its advisory (Article 65) and contentious jurisdictions (Article 36). The Court exercises its advisory jurisdiction when a principal organ of the UN, such as the General Assembly, requests advice on a question of international law. Only states have standing to appear in the contentious jurisdiction, and a state must be a party to the ICJ Statute (all members of the UN are automatically a party). Further, this jurisdiction is consensual. Parties consent by a compromise, a special agreement between parties, or when a bilateral or multilateral treaty contains a clause referring disputes to the Court, and by a unilateral declaration made in advance accepting jurisdiction in a range of matters listed in Article 36(2) of the ICJ Statute (on compulsory jurisdiction). Such consent is usually subject to reservations excluding specific matters.

Article 37 of the ICJ Statute enables the ICJ to hear disputes that the PCIJ was entitled to hear by way of treaty. The Court resolves any questions regarding its jurisdiction.

strengths and weaknesses

Consensual jurisdiction is the Court's greatest weakness, since not all states have granted their consent. States can also withdraw their consent, and their reservations to Article 36(2) often render their consent meaningless. Second, when the Court seeks to invoke its compulsory jurisdiction, the risk of nonappearance by parties exists. There were many incidents of nonappearance during the 1970s and 1980s, the most famous being the U.S. absence in the Nicaragua case. The nonappearance of parties raises concerns that justice has not been done, arguably weakening the final decision. Alternatively, the legal process could be stymied.

States also have a history of noncompliance with the Court's rulings. Although the Court's judgments can be enforced through a Security Council resolution, no international police force exists to ensure compliance. Instead, enforcement is achieved by peer group pressure from other states.

Other criticisms include the following: the Court's reluctance to use provisional measures; its alleged lack of proactivity; its slow progress in hearing cases on the docket; and most controversial, the lack of standing for non-state entities.

The ICJ has one important advantage over the UN political organs: All parties are guaranteed a fair and impartial hearing. Despite concerns that its judges may be biased, studies have shown that in their decisions, they (even the ad hoc judges) willingly vote against their own national governments. One example involved Justice Stephen M. Schwebel (b. 1929) of the United States in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America). In his dissenting opinion, Judge Schwebel voted against the United States' position and held it was correct to divide the Georges Bank between the United States and Canada. He disagreed with the Chamber's line of delimitation because it gave the United States a significantly greater proportion of the Gulf of Maine, and therefore was "inequitable." Moreover, no evidence exists of judges ever having been influenced by their national government. By restricting itself to the legal issues involved, the Court remains free from the political considerations and entanglements found elsewhere within the UN. This enables the Court to fully exploit its expertise and significantly aids its ability to sift through dubious statements made by national representatives in the guise of evidence, crucial when assisting parties or advising the political organs of the UN. The integrity of the Court is its greatest strength.

the court's success

The ICJ, like any court, has been criticized for its individual decisions or advice given: for example, the controversial South West Africa cases, second phase (1966); the East Timor case (1995); or the nuclear weapons opinion (1986). However, the major criticism has been that the Court is ineffective. Given the consensual nature of the Court's jurisdiction and the highly political environment of international relations, this is no surprise. In the Nicaragua case (1986), for example, the United States withdrew from the case, revoked its Article 36(2) consent, and ignored the Court's determination of its liability.

Such criticisms ignore the results the Court can achieve [e.g., as a consequence of the Court's determination in the Libyan Arab Jamahiriya/Chad case (1994), a peace agreement was signed, and Libyan forces withdrew from disputed territory], and its often subtle successes. The Court's decision in the Nicaragua case played a crucial role in the U.S. government's decision to change its policy in Nicaragua and may have hastened the subsequent end to the conflict. Furthermore, many smaller states viewed the ICJ as standing firm against the world's most powerful state.

nicaragua v. united states

Nicaragua v. United States was a case heard by the International Court of Justice (ICJ) in 1986 concerning the United States' support of the Contra guerillas in Nicaragua's civil war and the mining of the country's harbors. The United States initially denied that the ICJ had jurisdiction in the matter. The ICJ disputed this claim, although the judges differed considerably among themselves regarding the extent of the court's powers.

The court issued its ruling in favor of Nicaragua on June 27, 1986. It found that the United States had broken its obligations under international law not to intervene in the affairs of another state; not to use force against another state; not to violate the sovereignty of another state; and not to interfere with peaceful commerce on the seas.

The United States' refused to accept the court's decision and withdrew of its previous acceptance of the court's jurisdiction. The United States also refused to pay the fine imposed by the Court. The case is often cited as an example of the ICJ's inability to enforce its rulings, often being disempowered by the same nations that created it.

Although the potential for noncompliance exists, the fact remains that many states willingly comply with international law, as it is continually developed through both the Court's decisions and advisory opinions. In the Pakistani prisoners of war case, the mere threat of legal proceedings resulted in the 1974 Simla Agreement between India and Pakistan.

Since the Nicaragua case a marked resurgence of interest in the Court has occurred. In January 2004 two matters were heard: the controversial Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for Advisory Opinion) and Avena and Other Mexican Nationals (Mexico v. United States of America), with nine cases currently being heard and an additional twenty-one matters pending. They included border disputes, questions of sovereignty , the legality of the use of force, assets seized during World War II, allegations of genocide, and maritime law.

The increased use of the Court, rather than violence, as a means of resolving disputes is the Court's greatest achievement, and proof that it successfully meets its responsibilities under the UN Charter.

See also: United Nations.

bibliography

Case Concerning East Timor. Australia v. Portugal. ICJ Report 89 (1995).

Coleman, Andrew. "The International Court of Justice and Highly Political Matters." Melbourne Journal of International Law 4, no. 1 (2003):29.

Corfu Channel Case (Merits). UK v. Albania. ICJ Report 4 (1949).

Gill, Terry. Litigation Strategy at the International Court: A Case Study of the Nicaragua v. United States Dispute. The Hague: Martinus Nijhoff, 1989.

Hensley, Thomas. "National Bias and the International Court of Justice." Midwest Journal of Political Science 12 (1968):568.

Highet, Keith. "The Peace Palace Heats Up: The World Court in Business Again?" American Journal of International Law 85 (1991):646.

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion). ICJ Report 22 1996).

Military and Paramilitary Activities in and Against Nicaragua. Nicaragua v. the United States of America. ICJ Report 392 (1984).

Peck, Connie, and Roy Lee, eds. Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court. The Hague: Martinus Nijhoff, 1997.

Rosenne, Shabtai. The World Court, What It Is and How It Works, 5th ed. The Hague: Martinus Nijhoff, 1996.

Szafraz, Renata. The Compulsory Jurisdiction of the International Court of Justice. The Hague: Martinus Nijhoff, 1993.

Stanimir, Alexandrov. Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice. The Hague: Martinus Nijhoff, 1995.

Territorial Dispute (Libyan Arab Jamahiriya/Chad) (Judgment). ICJ Report 6 (1994).

Tiefenbrun, Susan. "The Role of the World Court in Settling International Disputes: A Recent Assessment." Loyola of Los Angeles International and Comparative Law Journal 20 (1997):1.

Weiss, E. B. "Judicial Independence and Impartiality." In The International Court of Justice at a Crossroads, ed. Lori Damrosch. Dobbs Ferry, New York: Transnational Publishers, 1987.

Andrew Coleman