International Court of Justice
The International Court of Justice (abbreviated ICJ) is the principal judicial organ of the United Nations (UN). It settles legal disputes between member states and gives advisory opinions to authorized UN organs and specialized agencies. It comprises a panel of 15 judges elected by the General Assembly and Security Council for nine-year terms. It is seated in the Peace Palace in The Hague, Netherlands.
|International Court of Justice|
|Cour internationale de justice|
International Court of Justice Seal
|Established||1945 (PCIJ dissolved in 1946)|
|Country||Worldwide, 193 state parties|
|Location||The Hague, Netherlands|
|Judge term length||9 years|
|No. of positions||15|
|Since||6 February 2018|
|Lead position ends||5 February 2021|
|Since||6 February 2018|
|Lead position ends||5 February 2021|
Established in 1945 by the UN Charter, 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 court's workload covers a wide range of judicial activity. After the court ruled that the United States's covert war against Nicaragua was in violation of international law (Nicaragua v. United States), the United States withdrew from compulsory jurisdiction in 1986 to accept the court's jurisdiction only on a case-by-case basis. Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members of the Council, which the United States used in the Nicaragua case.
The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council from a list of people nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4–19 of the ICJ statute. Elections are staggered, with five judges elected every three years to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term.
No two judges 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, that has meant common law, civil law and socialist law (now post-communist law).
There is an informal understanding that the seats will be distributed by geographic regions so that there are five seats for Western countries, three for African states (including one judge of francophone civil law, one of Anglophone common law and one Arab), two for Eastern European states, three for Asian states and two for Latin American and Caribbean states. For most of the court's history, the five permanent members of the United Nations Security Council (France, Russia, China, the United Kingdom, and the United States) have always had a judge serving, thereby occupying three of the Western seats, one of the Asian seats and one of the Eastern European seats. Exceptions have been China not having a judge on the court from 1967 to 1985, during which time it did not put forward a candidate, and British judge Sir Christopher Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench in 2017, leaving no judges from the United Kingdom on the court. Greenwood had been supported by the UN Security Council but failed to get a majority in the UN General Assembly. Indian judge Dalveer Bhandari instead took the seat.
Article 6 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 with specifically in Articles 16–18. Judges of the ICJ are not able to hold any other post or act as counsel. In practice, members of the court have their own interpretation of these rules and allow them to be involved in outside arbitration and hold professional posts as long as there is no conflict of interest. A judge can be dismissed only by a unanimous vote of the other members of the court. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the Nicaragua case, the United States 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, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Opinion requested by WHO),  ICJ Reports 66. Judges may also deliver separate dissenting opinions.
Ad hoc judgesEdit
Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases before the court. The system allows any party to a contentious case (if it otherwise does not have one of that party's nationals sitting on the court) to select one additional person to sit as a judge on that case only. It is thus possible that as many as seventeen judges may sit on one case.
The system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases. For example, if a state knows that 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, it may be more willing to submit to the jurisdiction of the court. 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 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 it has never been used).
Ad hoc chambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (Canada/US). In that case, the parties made clear they would withdraw the case unless the court appointed judges to the chamber acceptable to the parties. Judgments of chambers may either less authority than full Court judgments or 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.
|Name||Nationality||Position||Term began||Term ends|
|Abdulqawi Ahmed Yusuf||Somalia||Presidenta||2009||2027|
|Antônio Augusto Cançado Trindade||Brazil||Member||2009||2027|
|Joan E. Donoghue||United States||Member||2010||2024|
|Patrick Lipton Robinson||Jamaica||Member||2015||2024|
|1||José Gustavo Guerrero||1946||1949||El Salvador|
|3||Arnold McNair||1952||1955||United Kingdom|
|4||Green Hackworth||1955||1958||United States|
|8||José Bustamante y Rivero||1967||1970||Peru|
|9||Muhammad Zafarullah Khan||1970||1973||Pakistan|
|11||Eduardo Jiménez de Aréchaga||1976||1979||Uruguay|
|12||Humphrey Waldock||1979||1981||United Kingdom|
|16||Robert Jennings||1991||1994||United Kingdom|
|18||Stephen Schwebel||1997||2000||United States|
|21||Rosalyn Higgins||2006||2009||United Kingdom|
As stated in Article 93 of the UN Charter, all 193 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 a UN member state, Switzerland used this procedure in 1948 to become a party, and Nauru 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 three types of ICJ cases: contentious issues, incidental jurisdiction, and advisory opinions.
In contentious cases (adversarial proceedings seeking to settle a dispute), 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 organizations. That does not preclude non-state interests from being the subject of proceedings if a state brings the case against another. For example, a state may, in cases 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 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 the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations and did not 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 label "compulsory" 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 February 2011, sixty-six states had a declaration in force. Of the permanent Security Council members, only the United Kingdom has a declaration. In the court's early years, most declarations were made by industrialized countries. Since the Nicaragua case, declarations made by developing countries have increased, reflecting a growing confidence in the court since the 1980s. Industrialized countries, however, have sometimes increased exclusions or removed their declarations in recent years. Examples include the United States, as mentioned previously, and Australia, which modified its declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor, which 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 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 is established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949), in which the court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
Until rendering a final judgment, the court has competence to order interim measures for the protection of the rights of a party to a dispute. One or both parties to a dispute may apply the ICJ for issuing interim measures. In the Frontier Dispute Case, both parties to the dispute, Burkina Faso and Mali submitted an application to the court to indicate interim measures. Incidental jurisdiction of the court derives from the Article 41 of the Statute of it. Such as the final judgment, the order for interim measures of the court are binding on state parties to the dispute. The ICJ has competence to indicate interim measures only if the prima facie jurisdiction is satisfied.
An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. The UN Charter grants the General Assembly or the Security Council a power to request the court to issue an advisory opinion on any legal question. Other organs of the UN rather than GA and SC may not request an advisory opinion of the ICJ unless the General Assembly authorizes them. Other organs of the UN only request an advisory opinion of the court regarding the matters falling into the scope of their activities. 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 only consultative in character but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently, they are non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the court's authoritative views on important issues of international law. In arriving at them, the court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.
An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
Advisory opinions have often been controversial because the questions asked are controversial or the case was pursued as an indirect way of bringing what is really a contentious case before the court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case.
ICJ and the Security CouncilEdit
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 would then be vetoed. That occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the United States' noncompliance 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. Furthermore, the most effective form to take action for the Security Council, coercive action under Chapter VII of the United Nations Charter, can be justified only if international peace and security are at stake. The Security Council has never done that so far.
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 United Kingdom and United States. The problem was that these sanctions had been authorized by the Security Council, which resulted in 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, could not be prima facie 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, when 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, the United States had previously accepted the court's compulsory jurisdiction upon its creation in 1946 but in 1984, after Nicaragua v. United States, withdrew its acceptance following the court's judgment that called on the US 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 war reparations.
Examples of contentious casesEdit
- 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 complaint by Iran after the shooting down of Iran Air Flight 655 by the United States Navy guided missile cruiser.
- 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 Organization regarding their actions in the Kosovo War. This was denied on 15 December 2004 because of lack of jurisdiction, the FRY not being a party to the ICJ statute at the time it made the application.
- A complaint by the Republic of Macedonia (former Yugoslav Republic of Macedonia) that Greece is, by vetoing its accession to NATO, in violation of the Interim Accord of 13 September 1995 between the two countries. The complaint was decided in favour of Macedonia on 5 December 2011.
- A complaint by the Democratic Republic of the Congo that the DRC's sovereignty had been violated by Uganda and that DRC had lost billions of dollars worth of resources, was decided in favour of the DRC.
- A complaint by the Republic of India regarding death penalty awarded to Indian citizen by a Pakistani military court.  Pakistan arrested Kulbhushan Jadhav, an Indian citizen for alleged espionage and subversive activities.
When deciding cases, the court applies international law as summarized in Article 38 of the ICJ Statute, which 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 ("the teachings of the most highly qualified publicists of the various nations") 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.
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. That provision has not been used in the court's history. So far, the International Court of Justice has dealt with about 130 cases.
The ICJ is vested with the power to make its own rules. Court procedure is set out in the 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, which 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 that 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. 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, such as the fact 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 does not proceed to issue a judgment on the merits.
If the court decides it has jurisdiction and the case is admissible, the respondent then is required to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are filed, the court holds a public hearing on the merits.
Once a case has been filed, any party (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 United States 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 it grants provisional measures.
Applications to interveneEdit
In cases in which 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, and the first successful application occurred only in 1991.
Judgment and remediesEdit
Once deliberation has taken place, the court issues a majority opinion. Individual judges may issue concurring 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, but any party may ask for the court to clarify if there is a dispute as to the meaning or scope of the court's judgment.
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The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with criticisms of the United Nations, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings. Major criticisms include the following:
- "Compulsory" jurisdiction is limited to cases where both parties have agreed to submit to its decision, and so instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. According to the sovereignty principle of international law, no nation is superior or inferior against another. Therefore, there is no entity that could force the states into practice of the law or punish the states in case any violation of international law occurs. Therefore, the absence of binding force means that the 193 member states of the ICJ do not necessarily have to accept the jurisdiction. Moreover, membership in the UN and ICJ does not give the court automatic jurisdiction over the member states, but it is the consent of each state to follow the jurisdiction that matters.
- Organizations, private enterprises, and individuals cannot have their cases taken to the International Court or appeal a national supreme court's ruling. UN agencies likewise cannot bring up a case except in advisory opinions (a process initiated by the court and non-binding). Only states can bring the cases and become the defendants of the cases. This also means that the potential victims of crimes against humanity, such as minor ethnic groups or indigenous peoples, may not have appropriate backing by a state.
- Other existing international thematic courts, such as the ICC, are not under the umbrella of the International Court. Unlike ICJ, international thematic courts like ICC work independently from United Nations. Such dualistic structure between various international courts sometimes makes it hard for the courts to engage in effective and collective jurisdiction.
- The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound. Because the jurisdiction does not have binding force itself, in many cases, the instances of aggression are adjudicated by Security Council by adopting a resolution, etc. There is, therefore, a likelihood for the permanent member states of Security Council to avoid the legal responsibility brought up by International Court of Justice, as shown in the example of Nicaragua v. United States.
- International Criminal Tribunal for Rwanda
- International Criminal Tribunal for the former Yugoslavia
- International Tribunal for the Law of the Sea
- List of International Court of Justice cases
- List of treaties that confer jurisdiction on the International Court of Justice
- Supranational aspects of international organizations
- Universal jurisdiction
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|Wikimedia Commons has media related to International Court of Justice.|
- International Court of Justice, Official site
- ICJ Multimedia Gallery (photos, videos, webstreaming)
- List of cases ruled upon by the ICJ since its creation in 1946
- Peace Palace Library - ICJ Research Guide
- The Statute of the International Court of Justice on the United Nations AVL: summary of the procedural history, list of selected preparatory documents and audiovisual material related to the negotiations and adoption of the Statute.
- Hague Justice Portal: Academic gateway to The Hague organizations concerning international peace, justice and security.
- International Criminal Court : See also, a tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression
- The ICJ in the Service of Peace and Justice, Conference organized on the Occasion of the Centenary of the Peace Palace
- Lecture by Awn Shawkat Al-Khasawneh entitled Reflections on the Jurisdiction of the International Court of Justice in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Mohamed Bennouna entitled La Cour internationale de Justice, juge des souverainetés? in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Philippe Couvreur entitled La Cour internationale de Justice in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Vera Gowlland-Debbas entitled The International Court of Justice as the Principal Judicial Organ of the United Nations in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Mariko Kawano entitled Some Salient Features of the Contemporary International Disputes in the Precedents of the International Court of Justice in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Mariko Kawano entitled International Court of Justice and Disputes Involving the Interests of Third Parties to the Proceedings or the Common Interests of the International Community as a Whole or of the Community Established by a Convention in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Edward McWhinney entitled Judicial Activism and the International Court of Justice in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Alain Pellet entitled Conseil devant la Cour internationale de Justice in the Lecture Series of the United Nations Audiovisual Library of International Law
- Lecture by Jiuyong Shi entitled The Present and Future Role of the International Court of Justice in the Peaceful Settlement of International Disputes in the Lecture Series of the United Nations Audiovisual Library of International Law