Relevance and Effective of the Thesis
- Length: 25 pages
- Subject: Business - Law
- Type: Thesis
- Paper: #37098702
Excerpt from Thesis :
The chambers approach may be more suitable for states that seek a quick resolution to a particular dispute or for other compelling reasons; however, like the full Court, these alternatives are likewise voluntary in nature and require the consent of the disputants to have the case heard by one of the three foregoing chamber types. According to the Court's published information concerning "Chambers and Committees" (2009), "Despite the advantages that chambers can offer in certain cases, under the terms of the Statute their use remains exceptional. Their formation requires the consent of the parties. While, to date, no case has been heard by either of the first two types of chamber, by contrast there have been six cases dealt with by ad hoc chambers."
Given the significant representation by most of the countries of the world in the UN, the UCJ has the capability to provide a valuable forum in which to address disputes that will inevitably occur between nations. According to Schwebel and Prager (1999), the Court has an important role in ensuring the peaceful settlement of a wide range of international disputes pursuant to the fundamental purpose of the United Nations which is "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."
In order to achieve this goal, the Court serves as an adjudicator of international disputes that, left unresolved, could result in armed conflict, but more commonly exercises its responsibilities in resolving less drastic disputes between countries. From time to time, the Court's judicial function is also augmented by political approaches to the resolution of international disputes with the parties to the dispute and by various UN entities besides the ICJ; however, the Court is first and foremost "the principal judicial organ of the United Nations."
Not surprisingly, many of the controversies decided by the Court involve the ownership of territory. These decisions are regarded as one of the more important functions of the Court because sovereignty over territory comprises the definition of what constitutes a state in international law and relations.
In this regard, according to Ginsburg and Mcadams, "Even aside from defining borders, much of the jurisdiction of the ICJ involves conventions about property, that is, the extent of a state's physical control over territory on land or sea."
Moreover, the acquisition of additional territories to expand a country's existing borders has been a fundamental objective of most states throughout history; however, in order to enjoy the advantages of such territory, their boundaries must be clearly delineated and recognized by the international community. Given the importance of land, then, together with the fact that "they are not making any more of it," it is not surprising that there are frequently competing claims on territories between nations.
These types of competing claims over territory can be categorized into the following nine groups: treaties, geography, economy, culture, effective control, history, uti possidetis, elitism, and ideology.
Over the years, states have depended on all of the foregoing categories to attempt to substantiate their legal claims to territory in cases that have been brought before the ICJ. According to Sumner, "The most common claims are cast in terms of effective control of the disputed territory, historical right to title, uti possidetis, geography, treaty law, and cultural homogeneity."
One such recent decision handed down by the ICJ concerned the resolution of the disputed Bakassi Peninsula which the Court determined belonged to Cameroon rather than Nigeria. Notwithstanding the overwhelming presence of population loyal to Nigeria by tradition and blood, the decision by the Court was final and binding on both parties because there is no appeal to ICJ's rulings. In this regard, according to Jason (2002), the ICJ based its decisions on provisions of the 1918 Anglo-German Treaty wherein the Bakassi had been ceded to Germany (absent Nigeria's consent, though). While some observers, particularly those in Nigeria, blamed the ICJ for bias against their case, others suggested that the Nigerians themselves were to blame given the indefensible nature of their claim against the existing treaty provisions and the fact that there was no appeal to the Court's decision.
Pursuant to Article 38 of the Statute of the International Court of Justice, in those instances where the Court is called upon to decide cases "in accordance with international law," the Court follows these sources of law:
1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law; and,
5. In those cases where the parties agree, the court may also decide a case under equity principles, ex-aequo et bono.
In regard to the latter instance, according to Ginsburg and Mcadams, "In the ICJ, unlike in most domestic court processes, states are entitled to pick a judge ad hoc to serve on the court in instances when they do not already have a judge of their nationality present. Similarly, unlike most national courts, states can choose to allow the court to decide cases on the basis of equity (ex aequo et bono) rather than on purely legal considerations."
In addition, the UN's Department of Public Information reports that the Court also decides disputes by applying:
1. International conventions establishing rules expressly recognized by the contesting states;
2. International custom as evidence of a general practice accepted as law;
3. The general principles of law recognized by nations; and,
4. Judicial decisions and the teachings of the most qualified scholars of the various member nations.
The territorial claims that are brought before the ICJ usually fall within one of the above four categories. Claims to territory that are based on a treaty are the most straightforward and simplest to assert; this is based on the fact that when a treaty exists, there is documentary proof of some sort to point to rather than being compelled to rely upon relevant customary international law, an approach that requires evidence of state practice and opinio juris, or the existence of the highly subjective general principles of law that are "recognized by civilized nations."
In those cases where treaties are not available, though, litigants must resort to claims based on the other three international law categories, and to nonlegal or political basis for their claims. The numerous categories into which authorities have grouped these justifications, the most commonly used nine are treaties, geography, economy, culture, effective control, history, uti possidetis, elitism, and ideology.
In this regard, Schabas (2000) reports that, "The Statute of the International Court of Justice recognizes two non-conventional sources of international law: international custom and general principles.
International custom is established by 'evidence of a general practice accepted as law', while general principles are those 'recognized by civilized nations.'"
As Swaine (2002) points out, this distinction is important because, "According to Article 38 of the Statute of the International Court of Justice (ICJ), international custom amounts to 'a general practice accepted as law.' The surrounding language is confusing, but the Article's gist is that both practice and a sense of obligation (commonly described as opinio juris) are indispensable."
This sense of obligation represents the essence of the ICJ's ability to exercise its jurisdictional authority over highly contested matters that frequently involve enormous valuable real estate, the fundamental use of force or the diplomatic relations between member states. According to Swaine, "This view is consistent with mainstream commentary, and has considerable intuitive appeal. An articulated sense of obligation, without implementing usage, is nothing more than rhetoric. Conversely, state practice, without opinio juris, is just habit."
Table 1 below provides a recapitulation and summary of the types and percentages of contentious cases that have been filed and closed by the ICJ since is inception in 1946 through 2004 as well as the number of decisions that have been reached based on the merits of the case; these figures are also presented graphically in Figures 2, 3 and 4 below.
Subject Matter of Contentious ICJ Cases
No. Of Cases Filed and Closed
% of Total Cases Filed and Closed
No. Of Decisions on Merits
% of Total Decisions on Merits
Use of Force
Private property rights, including espousal of claims
Diplomatic or consular relations
Source: Ginsburg and Mcadams, 1230.
Figure 2. Number of Cases Filed and Closed by the ICJ: 1946-2004.
Source: Based on…