International Court of Justice

What do you do when you have an argument with someone that is difficult to solve? Have you ever heard of "conflict resolution"? Do you know what happens when whole countries find themselves in disagreement over something?

International Court of Justice International Court of Justice

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Table of contents

    In this article, we will look closely at the International Court of Justice (ICJ), which is the highest internationally recognised institution with the role of helping countries solve their conflicts. We will also look at the ICJ's history, its functions and limitations, and its powers.

    International Court of Justice definition

    The International Court of Justice (ICJ), also called the World Court or simply "the Court", is based in the Peace Palace in the Hague, Netherlands. The ICJ is the world's highest court and the main judicial organ of the United Nations.

    So what does it do? The role of the ICJ is to maintain international peace by helping to diffuse crises, normalising relations, and re-starting deadlocked negotiations through the settlement of disputes or by stating the law on the specific questions.

    International Court of Justice The Peace Palace StudySmarterFig. 1 The Peace Palace, the Hague

    History of the International Court of Justice

    The idea of an international court is centuries old. At the end of the 18th century, the Permanent Court of Arbitration (PCA) was created with the objective to ensure peace and curb the development of armaments. The PCS is the oldest organisation for the resolution of international disputes and the Peace Palace in the Hague, was built to house it.

    The PCS's remit was broad and it included resolving conflicts over territorial and maritime boundaries, human rights violations, state sovereignty, and trade disputes.

    Disagreements on how to appoint the judges of the PCA, as well as the breakout and then the end of World War 1, meant that the PCA was replaced by a court, not of arbitration, but of justice. This was the Permanent Court of International Justice (PCIJ).

    The main innovations brought by the founding of the PCIJ were:

    • its permanence;

    • the fact that the appointed judges better represented the world and all of its legal systems;

    • and the fact that its Statute was the first to list the laws it would draw from to reach its conclusions.

    These three factors meant that, over time, the PCIJ's ruling started developing international law.

    Between 1922 and 1940 the PCIJ heard around 30 cases and gave nearly as many advisory proceedings. Then, due to the outbreak of World War 2, the PCIJ and the League of Nations were dissolved and replaced respectively by the International Court of Justice and the United Nations in 1945.

    The ICJ's Statute, in turn, drew heavily from the PCIJ's.

    Arbitration vs Justice:

    Arbitration is a way of solving conflicts that historically precede judicial settlement. In an arbitration court, the conclusions of a dispute are reached by an independent third party and are binding for the disputing parties. In a Justice court, a bench of judges reaches their conclusions, based on the existing legislation, and through much stricter procedures.

    Rules of the International Court of Justice

    The court has 15 elected judges, there cannot be more than one judge from any one country, and, as a whole, they have to represent the main legal systems of the world.

    This leads to the Court having 3 judges from Africa, 2 from Asia, 2 from Latina America, 5 from western states, and 2 from eastern Europe.

    Although not mandatory, historically there has almost always been 1 judge from each of the 5 permanent members of the UN Security Council.

    The United Nations Security Council has 15 members, five of which are permanent. The permanent members are the USA, the UK, China, France, and Russia due to their victorious position at the end of World War II. The five permanent members are also called P5 or the "big 5", and their role has evolved with the history of the UN. Crucially, the role of a permanent member includes the right of veto.

    The 15 judges are elected to nine-year terms by the UN General Assembly and the Security Council. For continuity purposes, elections are staggered with a third of the judges being elected every three years. Judges can be re-elected.

    In turn, the judges elect their President and vice president who serve three-year terms.

    To encourage countries to bring cases to the Court, the Court allows for ad hoc judges. This means that, in addition to the 15 judges, and for the time the specific case is being dealt with, there can be also one judge representing the state bringing the case to the court and one representing the defending state.

    All UN countries can bring cases to the court, however, they are not automatically subject to rulings by the Court, as the Court's jurisdiction is subject to the individual states consenting to it permanently or on an ad hoc basis. Once they consent, they are automatically bound to comply with its decisions.

    The Court's decisions, assuming consent has been given, are binding and final, meaning they cannot be appealed against.

    Case with Ad hoc judges. There's a current case being considered by the ICJ over the use of the Silala aquifer and river between Chile and Bolivia. For this case, two ad hoc judges, one from each disputing country, have joined the panel of the ICJ.

    Case lacking consent. In 1973 Pakistan brought a case to the court against India in relation to prisoners of war. India states the court had no jurisdiction on the matter. Pakistan and India negotiated outside the Court and the case was removed from the Court's list.

    International Court of Justice functions

    The ICJ has 2 main roles:

    • Contentious proceedings: where the Court makes decisions over disputes between states ( these are also called contentious cases). Contentious proceedings take up 80% of the Court's work.
    • Advisory proceedings: where the Court responds to legal questions by the general assembly, security council, and other UN organs. This function can be for the purpose of interpreting international law or to support the peaceful resolution of a conflict between states bourne out of a legal matter.

    International Court of Justice: Contentious proceedings

    Contentious proceedings are when the court is asked, by one or more of its member states, to resolve a contentious issue arising with or against another state. A state can also bring to the court an issue affecting one or more of its citizens, who has been wronged by another state.

    In its rulings, the ICJ applies international law and conventions, human rights law, and, in special circumstances and if the states agree, it can use a broader sense of "fairness". Its rulings, in turn, have contributed to the development of international law.

    The ICJ hasn't got the power to enforce its own rulings. When necessary, the injured state can request for the UN Security Council to enforce the ICJ's decision.

    All UN member states, who are automatically members of the Court's statute, are entitled to bring disputes to it. Other non-UN states also have access to it under certain conditions which are decided each time by the General Assembly.

    Due to the length of its proceedings, the ICJ can, in relevant circumstances, impose precautionary measures on the countries involved while all the facts are looked at and a decision is made. These precautionary measures are automatically binding as their purpose is to prevent any further potential wrongdoing. Not respecting these precautionary measures is a breach of the state's international obligations, and whether the states abided by them or not, will be included in the final account.

    If a state is found, under ICJ rulings, to have carried out an internationally wrongful act, then the ICJ will expect the state to make full reparation to the injured state. It is not the ICJ's role to define what the reparation will involve, the Court will, instead, oversee the negotiation between the States, for them to reach an agreeable deal. If they cannot reach this, and if it their disagreement bears a legal nature, rather than a financial one, then they can submit a new case to the court.

    UN Security Council: this is the organ of the United Nations responsible for maintaining international peace and security.

    International Court of Justice: Advisory proceedings

    Advisory proceedings are when an organ of the United Nations (and not individual countries) asks the Court for its interpretation or opinion on a legal matter upon which its activities depend.

    Unlike contentious proceedings, and except in a few cases, advisory proceedings are not binding, therefore the answers of the Court do not have to be abided by. However, given the Court's authority and its role in preventing conflicts and maintaining peace, the Court's advisory opinions are regarded as contributing to the clarification and development of international law, and therefore they are very seldom not abided by.

    International Court of Justice facts

    The ICJ is the only UN body that is not based in the USA and it's different from the International Criminal Court because, unlike the latter, it does not try individuals due to their individual wrongdoings under international law, instead, as discussed, it deals with conflicts between states.

    Then ICJ has two official languages French and English, so all the cases, and the documents it produces, have to be in both languages.

    The Court is the only UN body that is administratively independent of the General Council and is seen as very economically efficient as its budget is less than 1% of the UN budget.

    The Court's hearings are public unless the parties involved decided to keep them private.

    On the 7th and 8th of March 2022 the ICJ held a public hearing at the Peace Palace on the request for the indication of provisional measures presented by Ukraine in relation to allegations of genocide by the Russian Federations. This hearing can also be found on the UN's website.

    International Court of Justice cases

    Since its first case in 1947, the ICJ has ruled over 183 cases as of the 22nd of April 2022.

    Initially, all applications for cases were entered into the Court's list; the cases that did not receive consent from the states involved were subsequently closed. In 1978, the rules were changed and now the Court's registrar only enters the cases that have received consent.

    Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania)

    The very first case was brought to the court by the United Kingdom against Albania over access to the Corfu channel. In 1946, United Kingdom's warships, while crossing the channel and entering Albania's territorial waters without consent were fired upon by Albania. Subsequent UK warships passing the channel struck mines and were damaged which lead to significant loss of life. The UK stated that it had the right to be there on a minesweeping mission. Albania stated that the UK had violated its sovereignty by being in the channel without its consent. The Court ruled that Albania should compensate the UK for the loss of life and should have made the UK aware of the risks involved in crossing the channel. However, the Court also was not persuaded by the UK's argument that its minesweeping mission was legitimate. The long-term significance of this case lies in providing the motivation to further develop the Law of the Sea with a specific focus on defining "innocent passage".

    In the Law of the Sea, the concept of innocent passage, allows foreign vessels access to other countries' territorial waters on the grounds that the passage does not compromise the peace and safety of the coastal state.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)

    Another significant case was the 1984 Nicaragua V United States case. The long and contentious background history between these two states dates back to 1909 when the US president ordered an armed intervention to overthrow the Nicaraguan president. Since then there have been repeated military and paramilitary interventions by the US against Nicaragua and in support of a political system in Nicaragua that would support US interests. Nicaragua brought this case to the ICJ who ruled in favour of Nicaragua. The US both questioned the jurisdiction of the court and subsequently withdrew its consent from the court. When the US refused to comply with the decision of the Court stating that it should pay reparation, the case was brought to the UN Security Council where the US vetoed it.

    This case led to the definition in international law of the right to self-defence. More crucially It also highlighted some of the shortcomings of the effectiveness of the ICJ.

    International Court of Justice criticisms

    One of the main points of criticism against the court is one of impartiality. In an article by Eric A. Posner and Miguel F. P. de Figueiredo1, in which they tested the charge of bias using statistical methods, the judges of the ICJ were found to be biased towards the states that appointed them and states with a similar level of wealth as theirs. Additionally, Posner and Figueiredo found some evidence to suggest that the judges were biased toward states with similar political systems and cultures to theirs. Such a study highlights how political alliances are perceived to influence the legal decisions of the ICJ.

    Another criticism of the ICJ is that there is no true separation between it and the Security Council. The permanent members of the Security Council can veto the enforcement of cases, as in the example above of Nicaragua v. USA. Whenever this happens, the authority and efficacy of the ICJ is undermined.

    Lastly, the Court is criticised due to the lack of representation of ethnic minorities within states. as discussed above, a state can choose to represent the interests of some of its citizens against another state, however ethnic minorities would be wholly unrepresented within this system.

    International Court of Justice - Key takeaways

    • The International Court of Justice is the highest court in the world.
    • The ICJ was founded in 1945 and it's a successor of the Permanent Court of Arbitration (PCA) and the Permanent Court for International Justice (PCIJ)
    • The ICJ has 15 elected judges who represent the main civilisations and legal systems of the world.
    • The ICJ has two main jurisdictions: contentious proceedings and advisory proceedings.
    • Contentious proceedings are brought to the Court by States and are binding following consent by the states.
    • Advisory proceedings are brought to the court by organs of the UN and are not binding.
    • The Court's rulings contribute to the continuous development of international law.
    • The Court is criticised on grounds of bias and lack of impartiality.

    References

    1. Eric A. Posner and Miguel F. P. de Figueiredo, Is the International Court of Justice biased?, The Journal of Legal Studies, Volume 34, Number 2, 2005
    2. Fig. 1 The Peace Palace, the Hague (https://commons.wikimedia.org/wiki/File:Den_Haag_Peace_Palace_(1).jpg) by Dierk Shaefer(https://www.flickr.com/photos/26480501@N06) licenced CC BY 2.0(https://spdx.org/licenses/CC-BY-2.0.html)
    Frequently Asked Questions about International Court of Justice

    What powers does the International Court of Justice have?

    The ICJ decides over disputes between states and gives advisory opinions to organs of the UN but it does not have enforcement powers for which it relies on the Security council.

    What does the international court of justice do?

    The ICJ decides over disputes between states and gives advisory opinions to organs of the UN

    What cases go to the International Court of Justice?

    Only legal, not political disputes, can be brought to the ICJ.

    Are the judgments of the international court of justice binding?

    The judgments of the ICJ are only binding following the states' consent.

    How does the International Court of Justice promote human rights?

    The ICJ promotes human rights by basing its decision on international law, including human rights law, and by continually developing human rights law through its advisory proceedings

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