The International Court of Justice

Author:Anthony Connerty
Profession:Barrister and member of WIPO arbitration panel
Pages:105-113
SUMMARY

1) Introduction. -2) Historical Overview. -3) The Charter of the United Nations. -4) The Charter of the International Court of Justice. -5) ICJ Rules of Court. -6) Practice Directions of the ICJ. -7) The ICJ Caseload. -8) Conclusions.

 
INDEX
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1) Introduction

This chapter considers the International Court of Justice (ICJ), almost certainly the most important Court dealing with inter-State disputes. It looks first at the history of the ICJ and then at the relevant provisions of the Charter of the United Nations. The Charter of the ICJ itself is then considered, followed by the Rules and Practice Directions of the Court, all vital to an understanding of how it operates. The final sections of the chapter look at some of the cases with which the ICJ has been dealing.

2) Historical Overview

The ICJ is the principal judicial organ of the United Nations and is located at the Peace Palace in The Hague. It began its work in 1946 when it replaced the Permanent Court of International Justice, which had functioned in the Peace Palace since 1922. The ICJ operates under a Statute largely similar to that of its predecessor.

The Court has a dual role: first, to settle (in accordance with international law) the legal disputes submitted to it by States; and second, to give advisory opinions on legal questions referred to it by duly authorised international organs and agencies.

The Court is composed of 15 judges elected for nine-year terms of office by the UN General Assembly and Security Council. The Court may not include more than one judge of any nationality. Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. The Members of the Court do not represent their governments but are independent.

Contentious cases

Only States may apply to - and appear before - the ICJ. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:

i) by the conclusion between them of a special agreement to submit the dispute to the Court;

ii) by virtue of a pre-existing jurisdictional clause - for example, a clause in a treaty providing that, in the event of a disagreement over its interpretation or application, one of the States may refer the dispute to the Court (several hundred treaties or conventions contain a clause to this effect);

iii) through the reciprocal effect of declarations made by States under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State (the declarations of 64 States are at present in force).

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In cases of doubt as to whether the ICJ has jurisdiction, it is the Court itself that decides.

The procedure followed by the Court in contentious cases is defined in its Statute and in the Rules of Court adopted by it under the Statute. The latest version of the Rules was agreed in 1978, particular Rules being from time to time amended.50 The proceedings include a written phase, in which the parties file and exchange pleadings, and an oral phase consisting of public hearings at which agents and counsel address the Court. As the Court has two official languages (English and French), everything written or said in one language is translated into the other.

After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public sitting. The judgment is final and without appeal. Should one of the States involved fail to comply with it, the other party may have recourse to the UN Security Council.

Since 1946 the ICJ has delivered 79 Judgments on disputes concerning, among other things: land frontiers and maritime boundaries; territorial sovereignty; the non-use of force; non-interference in the internal affairs of States; diplomatic relations; hostage-taking; the right of asylum; nationality; guardianship; rights of passage; and economic rights. There has been a problem of compliance in only about five of these.

As noted in Chapter 6, the Court decides in accordance with international treaties and conventions in force, international custom, the general principles of law and, as subsidiary means, judicial decisions and the teachings of the most highly qualified publicists.

Advisory opinions

The advisory procedure of the ICJ is open solely to international organisations. The only bodies at present authorised to request advisory opinions of the Court are five organs of the UN and 16 specialised agencies of the UN.

On receiving a request, the Court decides which States and organisations might provide useful information and gives them an opportunity of presenting written or oral statements. The Court's advisory procedure is otherwise modelled on that for contentious proceedings, and the sources of applicable law are the same. In principle the ICJ's advisory opinions are consultative in character and are therefore not binding on the requesting bodies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be binding.

Since 1946 the Court has given 24 Advisory Opinions concerning, among other things: admission to UN membership; reparation for injuries suffered in the service of the UN; territorial status of South-West Africa (Namibia) and Western Sahara; judgments rendered by international administrative tribunals; expenses of certain UN operations; applicability of the UN Headquarters Agreement; the status of human rights rapporteurs; the legality of the threat or use of nuclear weapons; and issues relating to the Palestine Wall.

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3) The Charter of the United Nations

Article 1 of the UN Charter provides that the purposes of the UN are to:

"maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by...

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