Overview of the International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of United Nations (UN).

Alternatively referred to as a “peace court”, the ICJ has played active roles in maintaining peace on international level, by settling disputes brought before it by member States, in accordance with international law, as well as giving advisory opinions on legal questions referred to it by authorized United Nations organs.

It was established after World War II to advance the goal of getting countries to use laws and institutions to resolve their disputes instead of resorting to hostility and conflict.

History

The modern history of international arbitration as we have today, has travelled through series of evolution, flowing from the “Jay Treaty” of 1794, primarily between the United States of America and Great Britain down to the present UN’s ICJ.

However, the immediate origin of the ICJ is traceable to the Hague Peace Conferences and the Permanent Court of Arbitration (PCA); and the Permanent Court of International Justice (PCIJ).

The PCA was established in 1900 and began operating in 1902, following the Hague Peace Conference of 1899, convened with the main aim to discuss peace and disarmament. The convention was attended by mostly European, American and few Asian States, and saw to the creation of the permanent bureau, located at Hague in the Peace Palace, a gift by Andrew Carnegie.

Unfortunately, the PCA did not live beyond the disruptive effect of World War I. On the contrary, following the inception of a new international organisation, the League of Nations, there arose a need for the establishment of a Permanent Court of International Justice (PCIJ), which would be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council of the League of Nations.

Article 14 of the Covenant of the League of Nations empowered the League to establish the PCIJ, which subsequently came into force in 1921, upon adoption and ratification of the PCIJ Statute by the member States. However, it did not form an integral part of the League of Nations, just as the Statute of the PCIJ never formed part of the Covenant. The implication was that a member State of the League of Nations is not subject to the jurisdiction of the PCIJ, unless they have separately adopt and ratify it’s Statute.

Again, the outbreak of World War II in 1939 had a ripple effect on the influence and jurisdiction of the PCIJ, and also saw to a decline in it’s judicial activities. In consequence, the United States and United Kingdom declared intentions in 1942, for the establishment of a new international court of justice after the war.

A committee was set up for this purpose under the chairmanship of an English man, Sir William Malkin. Meanwhile, on 30 October 1943, China, the USSR, the United Kingdom and the United States all in a conference, recognized the necessity for the establishment of a general international organization (an international court of justice inclusive), based on the principle of the sovereign equality of all peace-loving States, and open to membership by all States, for the maintenance of international peace.

A committee of jurists representing 44 States was constituted, under the chairmanship of G. H. Hackworth (United States), and was entrusted with preparing a draft Statute for the future international court of justice. The draft Statute was not completely new but rather based on the PCIJ Statute, and was subsequently submitted to the San Francisco Conference slated to meet in April 1945 to draw up a Charter for United Nations.

Unlike the PCIJ, the conference decided on the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and whose statute would be annexed to the Charter, forming an integral part of it. In April 1946, the PCIJ was formally dissolved, and the International Court of Justice took it’s place, in the Peace Palace, at Hague.

The ICJ’s first elected President became Judge José Gustavo Guerrero (El Salvador), the last President of the PCIJ. In May 1947, the court heard its first proceeding, brought by the UK against Albania, concerning an incident in the Corfu Channel.

Composition of the ICJ

The ICJ is composed of 15 judges, who must be citizens of different nations, such that no two judges shall hail from the same country.

These judges are thus elected to nine-year terms by majority votes in the UN General Assembly and the Security Council. The judges, one-third of whom are elected every three years, are eligible for re-election, and must be of “high moral character”, possessing the qualifications required in their respective countries for appointment to the highest judicial office.

The judges elect their own president and vice president, each of whom serves a three-year term, and can appoint administrative personnel as necessary. Additionally, the court may also appoint ad hoc judges to hear proceedings, as was in the case by South Africa against Israel.

Jurisdiction of the ICJ

The International Court of Justice has jurisdiction in two types of cases:

I. Contentious Jurisdiction

Primarily, the ICJ has no true compulsory Jurisdiction, but can only maintain one on the basis of consent, in which the court may produce binding rulings between states that agree to submit to the jurisdiction of the court. Only Member States may be parties to a contentious case before the ICJ.

In order words, 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 organisations.

This does not however, preclude a state from bringing actions against another in a subject matter in which the former has no direct interest. Such instances include where a state brings an action on behalf of one of its nationals or corporations.

Article 36 outlines four bases on which the Court’s jurisdiction may be founded.

a. Special agreement

Article 36(1) of the UN Charter provides that parties may refer cases to the Court, founded on special agreement, where such States had consented to the jurisdiction of the ICJ. 

b. Compromissory Clause

Article 36(1) also gives the Court jurisdiction over matters specifically provided for in treaties and conventions, where such treaties contain a compromissory clause, providing for dispute resolution by the ICJ. For instance, Article 36(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides that disputes may be referred to the ICJ.

c. Optional Clause Declarations

Article 36(2) allows states the discretion to make declarations accepting the Court’s jurisdiction as compulsory. For example, Australia accepts compulsory ICJ jurisdiction conditionally, whereas Brazil has not accepted compulsory ICJ jurisdiction, directly. However, Brazil has accepted the compulsory jurisdiction by becoming a Party to the Pact of Bogota

d. Succession from PCIJ

Finally, Article 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice’s statute. Article 37 of the ICJ’s statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.

II. Advisory Opinion

An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. Here, the ICJ provides reasoned, but non-binding, rulings on properly submitted questions of international law, usually at the request of the United Nations General Assembly.

Although it often does, it is not exclusive only to cases that concern controversies between States. The advisory opinions of the court are influential and widely respected interpretations of the law, but they are not authoritative, and they are inherently non-binding under the Statute of the Court.

Cases

Cases before the ICJ are resolved in one of three ways:

1. they can be settled by the parties at any time during the proceedings;
2. a state can discontinue the proceedings and withdraw at any point; or
3. the court can deliver a verdict.

The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognized by civilized nations, judicial decisions, and writings of the most highly qualified experts on international law.

It’s decisions, estimated within the range of 70 from 1946 to 2000, are binding on the parties and have been concerned with issues such as land and maritime boundaries, territorial sovereignty, diplomatic relations, the right of asylum, nationality, and economic rights.

Notwithstanding, the court is challenged on the grounds of lack of enforcement, but according to article 94 of the Charter of the United Nations, a party may have recourse to the security council to recommend measure to be taken to give effect to the judgment.

Few state parties to a case before the ICJ, have however failed to carry out the court’s decisions. Two exceptions are Albania, which failed to pay £843,947 in damages to the United Kingdom in the Corfu Channel case (1949), and the United States, which refused to pay reparations to the Sandinista government of Nicaragua (1986).

The United States also withdrew its declaration of compulsory jurisdiction and blocked Nicaragua’s appeal to the UN Security Council. In general, however, enforcement is made possible because the court’s decisions, though few in number, are viewed as legitimate by the international community.

In rendering its decision in the South Africa v. Israel case, the ICJ made specific reference to the obligation of the parties to abide by the decisions of the court precisely to respond to this concern.

Conclusion

Conclusively, despite inherent jurisdictional conflicts, unpopular legitimacy and low enforcement of its decisions amongst member States, the establishment of the ICJ has impacted positively to the sustenance of peace in international level.

The decision of the court, nonetheless, possesses important weight shifting the understanding of those around the world about the legality or illegality of the actions taken by the states involved.

And even if the decisions are not formally enforced by the Security Council, they are often enforced in a more decentralized way, by shaping the way in which states respond to the parties involved in the dispute.

For example, the ICJ’s decision that Russia’s invasion of Ukraine was unlawful, likely played a role in many states’ willingness to provide unprecedented financial and military support to Ukraine in its defense against Russia. International law often has force in this way, by shaping how states respond to one another’s actions and even those states determined to ignore it.

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