What is the t he International Interna tional Court C ourt of Justice? J ustice? The International Court of Justice (ICJ in short) is the highest court in the world and the only one with both general and universal universal jurisdiction. jurisdiction. It is open to all Member tates of the !nited "ations and# subject to the provisions of its tatute# may entertain any $uestion of international law. The International Court of Justice (ICJ) is the principal judicial organ of the !nited "ations (!"). %fter being established established in June &' by the the Charter of the !nited "ations# "ations# it began to wor* in %pril &'+. &'+. The Court was created in &' and began wor* in &'+. Its antecedents# however# go bac* to the time of the ,eague of "ations as it has inherited the premises and much of the structure and rules of the pre-war ermanent Court of International Justice. /ut unli*e the ermanent Court# which had a separate e0istence from the ,eague of "ations# "ations# the International Court of Justice is an integral integral part of the !nited "ations. The !nited "ations Charter established established the Court as 1the principal judicial organ organ of the !nited "ations2 &. Its tatute is appended to the Charter and all members of the !nited "ations are are ipso facto parties facto parties to the tatute.3 The seat of the Court is at the eace alace in The 4ague ("etherlands). 5f the si0 principal organs of the !nited "ations# it is the only one not located in "ew 6or* 6or* (!nited tates of %merica). The Court7s role is to settle# in accordance with international law# legal disputes submitted to it by tates and to give advisory opinions on legal $uestions referred to it by authori8ed !nited "ations organs and speciali8ed agencies. The Court is composed of & judges# who are elected for terms of office of nine years by the !nited "ations 9eneral %ssembly %ssembly and the ecurity Council. Council. It is assisted by a :egistry# :egistry# its its administrative organ. organ. Its official languages are ;nglish and
>
Charter# art. '3 1 !.". Charter#
2 Id. at art. '>.
3 >. Charter of the !nited "ations? Chapter I? urposes and rinciples# %rticle 3(>)
In the following paragraphs# we are going to discuss the importance and the limitations of the ICJ in today7s world.
Critical analysis of the International Court of Justice in today’s world %t the time of its establishment# the International Court of Justice was the global community7s only standing international court. Today# Today# it has been joined by a multitude of courts and tribunals dealing with matters of trade law# human rights law# international international criminal law and the law of the sea# as well as a large number of ad hoc tribunals created for the purpose of hearing a single case. These are# however# a number of features of the ICJ I CJ which set it apart. It has a universality which other courts and tribunals do not possess. %ny of the &'3 member tates of the !nited "ations can be parties to cases before it and all can participate in the vote in the 9eneral %ssembly to elect the judges of the Court. Today# that universality universality is more pronounced pronounced than ever. @@ tates have been parties parties in cases before the Court (twenty-five are parties to pending pending cases). Moreover# they come from all regions of the world? of the parties to pending cases# si0 are from %frica# si0 from ,atin %merica and the Caribbean# three from %sia# five from ;astern ;urope# and five from the Aest ;uropean and 5thers 9roup 9roup..+
4
The !nited "ations ecurity Council created ad-hoc international criminal tribunals in the former 6ugoslavia 6ugoslavia (ICT6) and
:wanda (ICT:) to address violations of international law during the 6ugoslavia 6ugoslavia conflict and the :wanda genocide o f the &''s
5
%rticle of the tatute of the Court provides that the judges are elected elected by the 9eneral %ssembly %ssembly and the ecurity Council.
The two organs vote separately but simultaneouslyD a candidate must secure a majority in both organs to be elected. tatute of the International Court of Justice# > /evans &&E'# art. @-&3.
6 These are the regional groups which e0ist within the !nited "ations
The Court is also universal in another sense. !nli*e speciali8ed courts and tribunals tribunals whose jurisdiction jurisdiction is confined to particular areas of international law (as is the case# for e0ample# with the International Tribunal Tribunal for the ,aw of the ea)# the jurisdiction of the International Court of Justice covers the whole field of international law. law. The cases currently before the Court include include land and maritime boundary disputes# environmental issues# issues# whaling# the prosecution or e0tradition of a former head of tate# sovereign immunity and the use of force. Moreover# a glance at the current cases and the recent decisions decisions of the Court will show that many of the cases have involved issues of great importance to the parties and often to the global community as a whole.
tarting with the advantages that the International Court of Justice has brought and its importance today# today# we must first *now that ICJ is $uite different from the national courts courts with which we are familiar. Ahat# then# is the significance of the Court in international international lifeF It would be easy to conclude that a court which has no genuinely compulsory jurisdiction and which cannot turn to any of the normal apparatus of the tate (on which national courts can rely) to enforce the judgments which it gives cannot play a significant role. uch a conclusion would would be facile and misleading. misleading. ;ven in the lean years of the &'E7s when the Court heard only a handful of cases# in most of which the respondent boycotted the proceedings# it would have been wrong to dismiss the Court as irrelevant. Its e0istence as a means for the impartial adjudication of disputes# even if little used# had an effect upon decisiondecision- ma*ing.
but it did not not ignore them. 5n the contrary# contrary# the proceedings seem to have played a part in leading
That case does# of course# reveal
the limits of what the Court could do# because Iran did not comply with the Court7s judgment of 3 May &'@ (which re$uired the immediate release of the hostages) until it concluded a broader settlement with the !nited tates in January &'@&. "evertheless# it is significant that the !nited tates %dministration thought it worthwhile to ta*e the matter to the Court and the judgment seems# at least# to have had some influence in mobili8ing international opinion.
7 "uclear Tests# rovisional rovisional Measures# Measures# (%ustl. v. v. ICJ :;. :;. '' (5rder (5rder of June 33) 8
!nited tates Hiplomatic and Consular taff in Tehran# rovisional Measures# (!.. v. Iran)# &'E' ICJ :;. 3> (5rder of Hec. &')D
!nited tates Hiplomatic and Consular taff in Tehran (!.. v. Iran) &'@ ICJ :;. > (May 3 )
The Court has played an important role in settling a range of disputes which the parties have chosen# b y mutual agreement# to refer to it. ince the end of the &'E7s# &'E7s# eleven substantial cases have been referred to the Court by agreement# agreement# most most of them concerning concerning land or or maritime maritime boundaries. boundaries. ' uch cases do not involve disputes over jurisdiction and# because both parties have opted to refer the case to the Court# there are usually no difficulties difficulties regarding implementation of the judgment judgment concerned. The availability of a standing international court competent to deal with disputes of this *ind and possessing the authority to grant provisional measures of protection in a case of urgency has been a valuable resource in helping to resolve resolve disputes and reduce reduce tensions. To paraphrase ,ord 4alifa0# 4alifa0# the Court has been an instrument by which# if tates are serious in wanting peaceful settlement of their borders in accordance with law and are ready to ma*e sacrifices for it# they may find means to do so. econdly# econdly# even in those cases (which are a clear majority) in which the Court is sei8ed by only one party to a dispute# the Court7s verdict verdict has almost always been accepted# even if reluctantly. reluctantly. In mar*ed contrast to the position in the &'E7s when the respondent tates boycotted proceedings in seven of the eight contentious cases brought before the Court# & since &'@& there has been only one case (out of fifty) in which a tate has declined to appear and only in the later phase of the proceedings# although many of the cases involved vigorous challenges challenges to the jurisdiction of the Court. Moreover# a significant significant number of cases commenced by unilateral application have proceeded without any challenge to the jurisdiction of the Court. &&
Thirdly# Thirdly# notwithstanding notwithstanding the relative lac* of machinery for the enforcement of judgments of the Court# in practice those judgments judgments have generally been complied complied with. 5ne e0ample is the the judgment in ,ibyaChad. That case concerned a dispute regarding title to territory# in particular particular a border area *nown as the %ou8u %ou8u trip. In its judgment of >
9
The following cases were concerned with disputes over title to land territory# including the location of borders?
Hispute (/ur*.
10
In (July 3)# Fisheries Jurisdiction Jurisdiction (<.:.9. v. Ice.)
11
).
administration from the %ou8u trip under the supervision of a !nited "ations mission. &3 Aithdrawal too* place shortly afterwards and the entire territory territory has been administered by Chad since then. %lthough %lthough the judgment of the Court had merel y determined that the disputed area belonged to Chad and had not specified the measures to be ta*en for its implementation# it was implicit in the ruling that ,ibya had to withdraw from the area. It is also instructive to consider the Court7s Court7s more recent judgment in the ulp Mills case between %rgentina %rgentina and !ruguay. The Court there held that !ruguay had breached its procedural but not its its substantive obligations obligations regarding regarding environmental protection protection of the river. river. The operative part of the Judgment did not call for any action by the parties but# in paragraph 3@&# the Court reminded the parties of their their duty of co-operation co-operation under the tatute of the the :iver !ruguay. !ruguay. The two governments concluded an agreement regarding co-operation in monitoring the relevant pulp mill shortly afterwards.&>
12 See 13
The ecretary-9eneral# Report of the Secretary-General Secretary-General # !.". Hoc. &''&3 (%pr. 3E# &'')
4I 9lobal Insight Haily %nalysis reported# on &+ "ov. 3&
$uestion have emanated from arbitration tribunals &# by far the largest contribution contribution comes from the ten judgments of the International International Court of Justice. Justice. years (+> judgments) than during the first years of its e0istence (3 judgments). There are eight principles within this broad conception of the the rule of law# law# namely? accessibility and clarity# constraint of discretion# e$uality e$uality before the law# e0ercise of powers in good faith and within limits (enforced by judicial review)# respect for human rights# availability of dispute resolution procedures# fair trial and compliance with international law. & Ae must also note that in recent years# the importance of the rule of law in world affairs has been recogni8ed on an increasingly fre$uent basis by the the international community.
See# e.g.# the !B-
15 Ibid .#.# p. >E and Chaps. >-&.
16 2005 World Summit Outcome, General Assembl resolution 60!1, 16 Se"tember 2005, O#cial $ecords o% t&eGeneral Assembl, Si'tiet& Session, Su""lement (o) 49 *A!60!49+, "ara) 134 *a+)
