International Court of Justice

¶ … Relevance and Effective of the International Court of Justice Today

In an increasingly globalized environment, there is a real need for an international judicial body that can provide the international community with legal advice and guidance, as well as to resolve legal disputes of all sorts between nations to prevent them from becoming points of contention that may result in armed conflict. For this purpose, the United Nations created the International Court of Justice which is authorized to perform these functions as well as certain others which form the focus of this analysis. In this regard, this paper provides a review of the relevant peer-reviewed, scholarly and organizational literature to determine the precise purpose of the International Court of Justice, its authority and powers, sources of law and precedent relied upon by the Court, recent trends in the exercise of its authority and powers, and an analysis of the Court's effectiveness as viewed by critics and proponents alike. A summary of the research and important findings are presented in the conclusion.

Review and Analysis

Background and Overview.

The International Court of Justice is located at the Hague, Netherlands.

The headquarters of the International Court of Justice are located in the same building that was occupied by its predecessor, the Permanent Court of International Justice, which occupied the Peace Palace from 1922 until the formation of the current version in 1946.

The original members of the International Court of Justice were elected by the UN's General Assembly and the Security Council in February 1946.

According to Nash (1999), "The International Court of Justice in the Hague had an extraordinary and unlikely beginning. Few can realize, even now, that it was the brainchild of Tsar Nicholas II, the murdered Tsar of Ekaterinburg, the weak and vacillating Tsar of the First World War."

The International Court of Justice convened for the first time at the Peace Palace in the Hague on April 1, 1946 (see Figure 1 below), with the original president being Judge Guerrero and Judge Basdevant as vice-president.

The International Court of Justice's Web site notes that, "Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America)."

According to the UN's Department of Information, "The [UN] Charter established six principal organs of the United Nations: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat.

The International Court of Justice is not only the principal judicial organ of the United Nations pursuant to Article 92 of the UN Charter, though, as it is also an autonomous adjudicative body that is tasked with of applying international law to such disputes between states as are brought before it pursuant to Article 38 of its Statute.

According to Black's Law Dictionary (1990), the International Court of Justice (hereinafter alternative the "ICJ" or "the Court," but sometimes also called the "World Court"

) is the judicial arm of the United Nations (UN).

The ICJ is comprised of 15 judges, with the judges who sit on the ICJ being elected by the United Nations General Assembly and the Security Council with 9-year terms of office.

One-third of the seats on the Court become vacant every 3 years, with the most recent elections to fill such vacancies being held on November 7, 2005.

On February 6, 2006 the newly formed Court elected a new president and vice president for terms of 3 years. As of that date, the Court was comprised of the following judges in the capacities indicated:

1. President: Rosalyn Higgins (United Kingdom);

2. Vice-President: Awn Shawkat Al-Khasawneh (Jordan);

3. Judges: Raymond Ranjeva (Madagascar), Shi Jiuyong (China), Abdul G. Koroma (Sierra Leone), Gonzalo Parra-Aranguren (Venezuela), Thomas Buergenthal (United States of America), Hisashi Owada (Japan), Bruno Simma (Germany), Peter Tomka (Slovakia), Ronny Abraham (France), Kenneth Keith (New Zealand), Bernardo Sepulveda-Amor (Mexico), Mohamed Bennouna (Morocco) and Leonid Skotnikov (Russian Federation).

International Court of Justice judges also enjoy diplomatic privileges and immunities when they are exercising their official responsibilities.

The Court is also assisted in the performance of its various duties by an administrative organ, the ICJ's Registry, and has two official languages, French and English.

Figure 1. The UCJ's Headquarters, Peace Palace at the Hague, Netherlands.

Source: http://www.globalautonomy.ca/global1/glofigures/GL_OR_IntCourtJustice_Fig1.jpg.

In his early work on the Court, Lissitzyn (1951) advises, "The framers of the Charter of the United Nations, like those of the Covenant of the League of Nations, have provided for an agency whose principal function is to apply legal techniques in the resolution of international controversies and problems. This agency is the International Court of Justice, which is described in the Charter as one of 'the principal organs' and as 'the principal judicial organ' of the United Nations (Article 7 [1] and Article 92)."

Further, Article 9 of the Statute of the International Court of Justice stipulates that in the body of the Court "as a whole," that "representation of the main forms of civilization and of the principal legal systems of the world should be assured."

The Court has the requisite jurisdiction to provide advisory opinions on those issues relating to law (these are known as advisory proceedings) and the construction of international treaties (there are known as contentious cases)

; however, this jurisdiction is limited to only those in cases where such opinions are requested by the UN's General Assembly, the Security Council or any other international body that is authorized by the General Assembly to request such opinions from the Court.

In addition, Black's notes that the Court "has jurisdiction, also, to settle legal disputes between nations when voluntarily submitted to it. Its judgments may be enforced by the Security Council. Its jurisdiction and powers are defined by statute, to which all member states of the UN are parties."

According to the UN's Department of Public Information, "The Court is open to all states that are parties to its Statute, which include all members of the United Nations. Only states may be parties in contentious cases before the Court and submit disputes to it. The Court is not open to private persons and entities or international organizations."

The Court has competent jurisdiction to resolve disputes only in those cases where the affected states have voluntarily accepted its jurisdiction in one or more of the following ways:

1. By entering into a special agreement to submit the dispute to the Court;

2. By virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court;

3. Through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.

According to Ginsburg and Mcadams (2004), instead of being a court of general jurisdiction that is responsible for the resolution of all types of international disputes, jurisdiction of the Court is for all practical purposes voluntary in nature. Pursuant to Article 36 of the Statute of the ICJ, the court has jurisdiction over:

1. Cases referred to it specifically by the parties by special agreement;

2. Cases provided for in treaties and conventions, including the UN Charter; and,

3. Cases between parties that have submitted to compulsory jurisdiction of the court under the so-called "Optional Clause" of Article 36(2).

The UN's Department of Public Information advises, that, "The Court normally sits in plenary session, but may form smaller units called chambers if the parties so request. Judgments given by chambers are considered as rendered by the full Court. The Court also has a Chamber for Environmental Matters and forms annually a Chamber of Summary Procedure."

Ordinarily, the ICJ fulfils its duties as a full Court, defined by the ICJ as a quorum of at least nine judges, not including judges ad hoc); however, in some cases and as noted above, it may also form permanent or temporary chambers of which are three types as follows:

1. The Chamber of Summary Procedure, comprising five judges, including the President and Vice-President, and two substitutes, which the Court is required by Article 29 of the Statute to form annually with a view to the speedy dispatch of business;

2. Any chamber, comprising at least three judges, that the Court may form pursuant to Article 26, paragraph 1, of the Statute to deal with certain categories of cases, such as labor or communications; and,

3. Any chamber that the Court may form pursuant to Article 26, paragraph 2, of the Statute to deal with a particular case, after formally consulting the parties regarding the number of its members - and informally regarding their name - who will then sit in all phases of the case until its final conclusion, even if in the meantime they cease to be Members of the Court.

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.

Table 1.

Subject Matter of Contentious ICJ Cases

Subject Matter

No. Of Cases Filed and Closed

% of Total Cases Filed and Closed

No. Of Decisions on Merits

% of Total Decisions on Merits

Borders/Maritime Delimitation

24

(29%)

21

(48%)

Use of Force

23

(28%)

5

(13%)

Private property rights, including espousal of claims

13

(16%)

2

(7%)

Diplomatic or consular relations

8

(10%)

7

(17%)

Other

14

(7%)

6

(12%)

Totals

82

41

Source: Ginsburg and Mcadams, 1230.

Figure 2. Number of Cases Filed and Closed by the ICJ: 1946-2004.

Source: Based on tabular data in Ginsburg and Mcadams at 1230.

Figure 3. Number of Cases Decided on the Merits by the ICJ: 1946-2004.

Source: Based on tabular data in Ginsburg and Mcadams at 1230.

Figure 4. Percentage of Total Decisions on Merits by the ICJ: 1946-2004.

Source: Based on tabular data in Ginsburg and Mcadams at 1230.

As can be seen in Table 1 above, almost half (48%) of the cases involving delimitation of border/maritime disputes were decided on the merits of the case, and this category represented the largest of those heard by the Court during the period under review. This 48% decision rate for border and maritime disputes is in sharp contrast to the meager 7% rate reached for private property rights cases, but this may also simply be a reflection of the relatively small number of such cases that came before the Court for adjudication during this period. Taken together, the foregoing analysis suggests that many of the contentious cases that come before the Court are sufficiently complex and convoluted to require an expanded review by the Court with no easy decisions or compromises being otherwise available. Some other recent trends that have taken place in the ICJ are reviewed further below.

Recent Trends in the International Court of Justice.

Although the Court does not exercise a judicial review function, some authorities have suggested that the time has come for it to do so. In this regard, Alvarez (1999) reports that although the UN Charter is not a constitution per se, some of the recent decisions of the Security Council have prompted both litigants and judges in the Court itself to posit that a judicial review function is an essential step towards establish a system of checks and balances that is sorely needed.

Further, the Court is hearing an increasing number of contentious cases compared to the period from the 1960s through the 1980s. For instance, during 1994-1995, the Court had an unprecedented number of 13 cases pending before it, with eleven of these cases being contentious cases in which the parties were states from different parts of the world; two cases were requests for advisory opinions from the Court and there was one submission from the World Health Organization (WHO) and another by the General Assembly itself.

This point is also made by Bodie (1995) who emphasizes that, "The increasing utilization of the International Court of Justice stretches beyond just the events in Eastern Europe of the last few years. The Court recently has received a great increase in applications submitted to it, many of which involve states that have never previously appeared before the Court. Currently, the Court has the fullest docket it has ever had."

The most recent report of the International Court of Justice to the UN General Assembly covering the period from August 1, 2006 to July 31, 2007, also reports a high caseload before the Court compared to years past. For instance, during the period covered by the report, the number of cases pending before the Court remained high compared to the latter half of the 20th century. During the period from August 1, 2006 to July 31, 2007, the Court rendered two judgments and issued one order pursuant to a request for the indication of provisional measures, with yet another judgment being reported as forthcoming shortly.

In addition, the ICJ conducted hearings in the following four cases:

1. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (preliminary objections);

2. Pulp Mills on the River Uruguay (Argentina v. Uruguay) (provisional measures);

3. Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) (merits); and,

4. Territorial and Maritime Dispute (Nicaragua v. Colombia) (preliminary objections).

As of July 31, 2007, the number of cases pending on the Court's docket was 12.

The increasing caseload before the Court is no accident, but is rather the result of the ICJ's efforts to improve its efficiency and provide UN member states with a speedier resolution of the cases that are brought before it. According to the Court's most recent report to UN General Assembly, "This sustained level of activity on the part of the Court has been made possible by the Court's willingness to take a significant number of steps to increase its efficiency and thereby enable itself to cope with the steady increase in its workload. After having in 2001 adopted its first Practice Directions for use by States appearing before it, the Court has regularly reexamined them as part of its ongoing review of its proceedings and working methods."

Beyond the foregoing, the Court has taken a strategic view to increasing its efficiency so that it can hear, deliberate and decide more than one case at a time. In this regard, the Court's most recent report to the UN General Assembly adds that, "Moreover, anxious to enhance its productivity, it has decided to hold regular meetings devoted to strategic planning of its work. It has set itself a particularly demanding schedule of hearings and deliberations, so that several cases can be decided at the same time."

Given the increasing caseload being assumed by the Court, an analysis of how effective this UN organ has been in delivering decisions that are complied with by litigants and how effective the ICJ is perceived by member states and its own membership is in order, and these issues are discussed further below.

The Effectiveness of the International Court of Justice.

The effectiveness of the Court has been a source of controversy over the years, with many observers suggesting that the UN's "principal legal organ" was nothing more than a paper tiger whose rulings and advisory opinions were of little value without the ability to enforce them in substantive ways. In this regard, Bodie advises, "To paraphrase Justice Felix Frankfurter, the International Court of Justice, lacking either the power of the purse or of the sword, needs to choose its battles carefully in order to maintain its integrity."

The relative effectiveness of the Court in terms of its productivity has also varied over the years. For instance, according to Jennings, "The development of the present Court has not of course had a linear progression. Besides the big cases, there have been long fallow periods. Nor is the rate of consumption of Judge-hours, as reflected in the thickness of some of the Reports, always a measure of effectiveness."

Indeed, throughout the 1960s and 1970s, the mere publication of the Court's decisions required so much paper that it is likely that trees shivered when the ICJ judges walked through the forest, but this of course is no reflection of the Court's effectiveness. In this regard, Jennings concludes that, "There is also the question of the effectiveness of the Court's decisions. There is a persistent popular myth that the Court's judgments are too frequently disregarded. Even a careful and sympathetic monograph suggests the Court 'has received little respect' and 'its decisions have too often been ignored.'"

This perception of the ineffectiveness of the ICJ is shared by a number of other observers as well. Because states can accept ICJ jurisdiction but subsequently reject it, the Court may not even have the opportunity to adjudicate a case that is brought before it. For example, Nash points out that, "States have to consent to their cases being adjudicated by the Court, and some states will start by agreeing and will then walk out and refuse to accept jurisdiction. A classic case was that brought by Britain against Albania in 1949, the Corfu Channel incident. If this happens, it may be a very long time before historical developments and extra legal pressures allow for a solution."

Indeed, according to former UN Ambassador John Bolton (1998), "even the International Court of Justice tacitly acknowledges that the ICJ has failed to garner the legitimacy sought by its founders in 1945."

Likewise, Ginsburg and Mcadams note that, "It was anticipated that the Optional Clause would provide a means for ever-increasing numbers of states to submit to jurisdiction, and facilitate the goals of international cooperation held by the drafters of the UN Charter."

Although the case load before the Court is at unprecedented high levels, Ginsburg and Mcadams suggest that this is not a true reflection of the willingness of all member states to accede to the Court's jurisdiction or their decisions. According to these authorities, "Unfortunately, the Optional Clause has been, by and large, a failure. There is much lamentation among international lawyers about the reluctance of countries to submit to compulsory jurisdiction."

Indeed, even one of the members of the ICJ cites the Optional Clause of the source of this failure which "prevents the International Court of Justice from fulfilling its essential role."

Other authorities, though, suggest that the ICJ's effectiveness can be better gauged by the manner in which it serves as a forum in which the facts and differing positions of a particularly complicated international dispute can be clarified and by the impact its advisory proceedings have had on the functioning of the UN and the ability of the Security Council to enforce its rulings. In this regard, Schwebel and Prager emphasize that, "Once a dispute is submitted to the Court, the parties are obliged to reduce and transform their sometimes over-stated political assertions into factual and legal claims. This process sometimes has alleviated tensions and led to a better and fuller understanding of the opponent's claims. Negotiations resumed and led to a settlement even before the Court reached a decision."

A recent example of this type of relative effectiveness is the case concerning the "Aerial Incident" of July 3, 1988 between the Islamic Republic of Iran and the United States of America; this case emerged when a United States cruiser shot down an Iranian Airbus.

The written proceedings that came before the Court provided the litigants with an opportunity to thoroughly review and better understand each other's respective claims and arguments, as well as the opportunity to identify opportunities for compromise that might have otherwise been achievable. Following the submission of these respective claims and arguments, the negotiations between the litigants were recommenced and a final settlement was ultimately achieved.