International Court of Justice
The International Court of Justice (known colloquially as the World Court or ICJ; French: Cour internationale de Justice) is the principal judicial organ of the United Nations. Its seat is in the Peace Palace at The Hague, Netherlands. Established in 1945 by the Charter of the United Nations, 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 authorised 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 USA withdrew from compulsory jurisdiction in 1986, meaning it accepts the court’s jurisdiction on only a case-to-case basis.
The ICJ is composed of 15 permanent judges elected 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. Elections take place every three years, with one-third of judges retiring 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 meantcommon 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. A judge can be dismissed by only 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 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.
Generally, the Court sits as a 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. Chambers judgments 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.
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 member nations, Switzerland used this procedure in 1948 to become a party; Nauru also 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.
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.
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 USA 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 tag of “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. Out of the 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 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.
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 cases include:
- Advisory Opinion of the International Court of Justice on the Israeli West Bank Barrier.
- An advisory opinion on the legality of the use (or threat to use) nuclear weapons.
- The opinion on Western Sahara, issued in 1975.
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 will be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the USA’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 UK 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 of America 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 United States 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 reparations.
Examples of contentious cases include:
- 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.
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.
When deciding cases, the Court applies international law as summarised in Article 38. 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 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. The Court operating under ex aequo et bono would act in some ways similar to a mediator. However, this provision has not been used in the Court’s history.
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.
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 domestic (US) 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.
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.
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.