The International Court of Justice
Introduction
Based at the Peace Palace in The Hague, the International Court of Justice is one of the principal organs of the United Nations. The other five principal organs are located in the state of New York in the United States. The International Court of Justice is considered the United Nations principal judicial organ. The court has two official languages – English and French. Initially, the organ was named the Permanent Court of International Justice, initiated by the League of Nations. The international court proposal to handle international disputes was introduced in the late 19th century and mainly implemented in the early 20th century during the Hague Conventions. The decisions of the court have an international application. However, some states may not agree with them or view them as legitimate but they are legally valid and binding on the parties.
History of the International Court of Justice
Before the establishment of the Permanent Court of International Justice, the Permanent of Court of Arbitration was formed. The Permanent Court of Arbitration was established in the year 1899 by the Convention for the Pacific Settlement of International Disputes during the First Hague Peace Conference (PCA n.d.). One of the objectives of the Conference was to strengthen international dispute resolution through arbitration. Article 16 of the Convention established in 1899 stated that arbitration is the most effective tool to settle disputes not settled through diplomacy (PCA n.d.). The Permanent Court of International Justice was inaugurated by the League of Nations in the 19th Century after the Permanent Court of Arbitration was set aside.
The Permanent Court of International Justice was a project endowed on the Council of the League of Nations. The Council appointed an Advisory Committee of Jurists which prepared and submitted a report to the Council on the establishment of the Permanent Court of International Justice (Trindade n.d.). The PCIJ commenced operations on the 15th of February 1922 until the year 1940. In that period, the PCIJ had handled several matters. For instance, it settled 29 controversial cases and delivered 27 advisory opinions (Trindade n.d.). None of the advisory opinions related to the matters that led to the Second World War a few years later. The Permanent Council of International Justice formed the basis of the establishment of the International Court of Justice.
The International Court of Justice statute was inaugurated after its adoption in the San Francisco Conference. The statute borrowed heavily from the Permanent Council of International Justice; it was adjusted by the United Nations Committee of Jurists and the Fourth Committee of the United Nations Conference on International Organization (Trindade n.d.). The International Court of Justice was a major part of the United Charter because of its inclusion in the United Nations. The United Nations Charter includes the Court structure, competences, powers, and the law applicable. Article 92 of the United Nations Charter outlined that the International Court of Justice is the United Nation’s principal judicial organ and its functions were based on the Permanent Court of International Justice. Also, members of the United Nations were, by that fact, parties of the International Court of Justice.
Composition of the International Court of Justice
The International Court of Justice is composed of 15 independent judges and the registry. The judges are elected to office by the General Assembly and the Security Council. They each serve nine-year terms (Allam and Alheety n.d.). However, a third of the court is elected every three years to ensure there is a certain standard of continuity. The elections are held in New York in the United States on the annual autumn session of the General Assembly (International Court of Justice n.d.). The General Assembly and the Security Council vote at the same time but in separate places. A candidate has to receive majority votes on both sides to get elected. In that case, the elections take a long time to achieve the set parameters. In case a judge dies or resigns before the expiry of his or her term, a special election is held to choose a replacement that will fill in until the end of the term. The elections are independently held to uphold transparency of the exercise.
Before the elections are held, the state members of the International Court of Justice statute are accorded the chance to propose their preferred candidates. The proposals are not conducted by the government of the member states; they are conducted by members of the Permanent Court of Arbitration. States that are not part of the Permanent Court of Arbitration are also given the chance to take part in the nominations. Each group chooses a maximum of four candidates, two of whom may be of its nationality (International Court of Justice n.d.). The other two may be from other countries. The names of the nominated candidates should be sent to the Secretary-General within a specified time limit. The parameters regarding elections are set out in the Charter to avoid any hurdles during the election period.
Like other judges in ordinary and local courts, the judges have to be of exemplary moral standing. Their qualifications should meet their respective countries’ preferences for appointments in high judicial positions (International Court of Justice n.d.). The judges should promote the world’s civilization standards because the court does not include nationals from the same state. Their first order of business after taking office is making a declaration in open court that they shall exercise their powers impartially and responsibly. Dismissal of a member of the International Court of Justice depends on a unanimous decision of the other members that he or she is not meeting the conditions of their position. By doing so, each member is guaranteed the independence of his or her position as a judge in the International Court of Justice.
The judges have several duties. For instance, they may not engage in any other form of occupation- they may not take up political or administrative positions. However, they may offer public lectures or get membership in scientific societies (Allam and Alheety n.d.). In other words, the judges should get consent from the court before they engage in other duties other than their judicial duties. In return, the judges enjoy attractive payment packages and privileges similar to heads of diplomatic missions. Each judge receives an annual remuneration of $176,437 plus $15,000 for the President as a special allowance (International Court of Justice n.d.). The judges are remunerated attractively to avoid their involvement in other occupations while serving their nine-year term.
The registry is also part of the composition of the International Court of Justice. The body is an integral part of the statute because it makes the connection between the court and other parties (Allam and Alheety n.d.). Members of the Registry also enjoy the privileges similar to heads of diplomatic missions enjoyed by the judges. The registry maintains a relationship with organizations that deal with legal matters and the general public. The registry informs the world of the work done by the court.
Treaties
Dating back to 1946, the International Court of Justice has contracted treaties between different member states. The treaties outline the jurisdiction of the court. A common practice concerning treaties developed where the states incorporated jurisdictional clauses whenever they were faced with disputes (International Court of Justice n.d.). The clauses provided that certain groups of disputes are subject to certain pacific dispute settlement (International Court of Justice n.d.). The clauses provided for other means to settle disputes, aside from heading straight to court. For instance, arbitration, mediation, and conciliation. However, if any of these methods fail to settle the dispute, other treaties state that the member states could seek recourse in court. Others state that disputes should be taken straight to court. The variance in dispute settlement options resulted in the creation of several treaties.
The Permanent Court of International Justice also recorded several treaties with the Secretariat of the United Nations while it was still in operation. These treaties are dated before the year 1946 when the International Court of Justice was inaugurated (International Court of Justice n.d.). For instance, the Convention concerning the rights of nationals and commercial and shipping matters signed on the 12th of May 1933 between Canada and France. The United Nations has a Treaty Series that lists all the treaties that have been formed between the signatory states. The most recent treaty is the multilateral treaty signed in New York. The treaty was named the International Convention for the Protection of All Persons from Enforced Disappearance, signed on the 20th of December 2006 (International Court of Justice n.d.). These treaties create peaceful relations between the member states.
The Jurisdiction of the International Court of Justice
The court, through the United Nations Charter, is mandated to settle disputes peacefully in line with the principles of International Law. Any state may file a declaration recognizing the court’s jurisdiction via the United Nations Secretary-General (Mingst n.d.). Several factors relate to the jurisdiction of the court. For instance, the only parties that can appear before the court are the member states (Allam and Alheety n.d.). The United Nations is not permitted to be a party to any matter before the court. Also, the disputing states have to consent to bring the case to the International Court of Justice. This way, the case if halfway solved because the parties have consented to solve the matter before the court.
The jurisdiction of the International Court of Justice is divided between contentious and advisory jurisdiction. Under the contentious jurisdiction, the form of the consent determined how the matter was brought before the court. For instance, a special agreement is provided in Article 36 of the United Nations Charter (International Court of Justice n.d.). These cases are brought to court via a notification in the Registry that states the names of the parties and the title of the dispute. Article 36 and 37 provide that the jurisdiction of the court included the matters provided for in the treaties and conventions (International Court of Justice n.d.). These matters are initiated in court through an application instituting proceedings. The written document should also include the subject of the dispute and the names of the parties for easier reference.
Most of the cases are brought before the court via written applications. If disputing member states opt and consent to recognize the jurisdiction of the court in handling legal issues, then they should bring the dispute through a written application before the court (International Court of Justice n.d.). If a member state does not recognize the jurisdiction of the court yet proceedings have been instituted against it, that state has the choice to accept the jurisdiction to enable the court to hear and determine the matter. The scenario is brought about by the forum prorogatum rule. The court also has the mandate to determine its jurisdiction if states are disputing over its jurisdiction. The jurisdiction of the court can be determined in different unrelated ways.
The court also has the mandate to interpret a judgement if parties are disputing over it. One of the parties can make a formal application requesting an interpretation or access the court through a special agreement (International Court of Justice n.d.). Tunisia filed an application concerning the Judgement delivered on 24th February 1982 about Continental Shelf (International Court of Justice n.d.). The same process applies to the revision of a judgement where one of the parties makes a discovery of fact and presents it to court. The party approaches the court through a written application. The court also has the ability and power to determine its jurisdiction if one or all the parties fail to recognize it.
The court also has the advisory jurisdiction that is available to public organizations. The procedure is available to some organs of the United Nations, specialized agencies and related organizations (International Court of Justice n.d.). Advisory proceedings commence with a written request addressed to the Registrar of the Secretary-General. The court then assembles states that may furnish the court with adequate information on the matter. The states of the requesting organizations are chosen first to assist the court in coming up with an advisory opinion (International Court of Justice n.d.). These advisory opinions are, however, not binding but they have moral authority in that the states can rely on them while making decisions.
Resolving Cases
Cases before the International Court of Justice may be resolved in three ways. For instance, the parties can solve their differences at any point in the proceedings, the states can halt the proceedings and withdraw the dispute, and the court can hear the matter and deliver a judgement at the end of the proceedings (Mingst n.d.). The decision of the court is final and the aggrieved party cannot appeal. The court deliberates over the disputes in private but the judgement is delivered in open court, in English and French. If any of the judges do not agree with the decision, he or she may file a separate opinion stating the reasons for the decision (Mingst n.d.). The court resolves and decides over different cases with the International Law as a reference.
Criticisms
Despite the different achievements of the International Court of Justice, the court’s success has been questioned by different groups. The criticisms began when the court was the Permanent Council of International Justice. The most common criticism being the disputes that the court can decide upon and how they are disposed of. The critics thought that the fact that parties had to consent before bringing their disputes to court was hypocritical (Park, 2017). The reason was that in recent years, some states had to give up their sovereignty for peaceful interactions with other states. Currently, some of the states have chosen not to accept the compulsory jurisdiction because the United States decided to reject the jurisdiction in the year 1986 (Park, 2017). The court stated that it had the jurisdiction to hear and determine the case between Nicaragua and the United States. France also withdrew its declaration after a dispute with New Zealand. The withdrawals exposed the flaws in the system and contributed to the critics’ argument.
Critics also thought that states are required to follow the decisions of the court, yet the court does not possess enforcement powers. The parties to the dispute have to go to the Security Council to have the judgement enforced (Park, 2017). The United Nations Charter states that the Security Council may take action if it deems fit, meaning that it is not mandatory. The parties are at the mercy of the Security Council who may or may not take action in favour of the member states. The court has been accused of taking political sides, especially in the United States and Nicaragua case (Park, 2017). The court ruled against the United States but the superpower accused the court of taking political sides hence it withdrew its acceptance of the jurisdiction. The impartiality of the court has also been questioned severally due to the composition of the judges. Critics thought that each member state should have representation on the judges’ bench. Ultimately, critics singled out specific cases, out of a million others that have been handled by the International Court of Justice; their arguments may be biased.
References
Allam, W. and Alheety, N. (n.d.). Public International Law.
International Court of Justice (n.d.). Advisory Jurisdiction. Retrieved June 8, 2020, from the ICJ website https://www.icj-cij.org/en/advisory-jurisdiction
International Court of Justice (n.d.). Members of the Court. Retrieved June 8, 2020, from the ICJ website https://www.icj-cij.org/en/members
International Court of Justice (n.d.). Treaties. Retrieved June 8, 2020, from the ICJ website https://www.icj-cij.org/en/treaties
Mingst, K. (n.d.). International Court of Justice. Retrieved June 8, 2020, from the Encyclopaedia Britannica website https://www.britannica.com/topic/International- Court-of-Justice
Park, L. (2017). The International Court and Rule-Making: Finding Effectiveness. U. Pa. J. Int’l L., 39, 1065.
PCA (n.d.). Permanent Court of Arbitration. Retrieved June 8, 2020, from PCA website https://pca-cpa.org/en/about/introduction/history/
Trindade, A. (n.d.). Statute of the International Court of Justice. Retrieved June 8, 2020, from the Audiovisual Library of International Law website https://legal.un.org/avl/ha/sicj/sicj.html