The INTERNATIONAL COURT OF JUSTICE (French: _Cour internationale de
justice_; commonly referred to as the WORLD COURT, ICJ or THE HAGUE )
is the primary judicial branch of the
* 1 Activities
* 2 Composition
* 2.1 _Ad hoc_ judges * 2.2 Chambers * 2.3 Current composition
* 3.1 Contentious issues * 3.2 Advisory opinions
* 3.3 ICJ and the
* 3.3.1 Examples of contentious cases
* 4 Law applied
* 5 Procedure
* 5.1 Preliminary Objections * 5.2 Applications to intervene * 5.3 Judgment and remedies
* 6 Criticisms * 7 See also * 8 Notes * 9 Further reading
* 10 External links
* 10.1 Lectures
Established in 1945 by the UN Charter , the Court began work in 1946 as the successor to the Permanent Court of International Justice . The Statute of the International Court of Justice , similar to that of its predecessor, is the main constitutional document constituting and regulating the Court.
The Court's workload covers a wide range of judicial activity. After
the court ruled that the
Main article: Judges of the International Court of Justice Public hearing at the ICJ.
The ICJ is composed of fifteen judges elected to nine-year terms by
UN General Assembly
No two judges may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, that has meant common law , civil law and socialist law (now post-communist law).
There is an informal understanding that the seats will be distributed
by geographic regions so that there are five seats for Western
countries, three for African states (including one judge of
francophone civil law , one of Anglophone common law and one
Article 6 of the Statute provides that all judges should be "elected
regardless of their nationality among persons of high moral character"
who are either qualified for the highest judicial office in their home
states or known as lawyers with sufficient competence in international
law. Judicial independence is dealt with specifically in Articles
16–18. Judges of the ICJ are not able to hold any other post or act
as counsel . In practice, Members of the Court have their own
interpretation of these rules and allow them to be involved in outside
arbitration and hold professional posts as long as there is no
conflict of interest. A judge can be dismissed only by a unanimous
vote of the other members of the Court. Despite these provisions, the
independence of ICJ judges has been questioned. For example, during
the _Nicaragua_ case, the
Judges may deliver joint judgments or give their own separate opinions. Decisions and Advisory Opinions are by majority, and, in the event of an equal division, the President's vote becomes decisive, which occurred in the _Legality of the Use by a State of Nuclear Weapons in Armed Conflict_ (Opinion requested by WHO), ICJ Reports 66. Judges may also deliver separate dissenting opinions.
_AD HOC_ JUDGES
Article 31 of the statute sets out a procedure whereby _ad hoc _ judges sit on contentious cases before the Court. The system allows any party to a contentious case, if it otherwise does not have one of that party's nationals sitting on the Court, to select one additional person to sit as a judge on that case only. It is thus possible that as many as seventeen judges may sit on one case.
The system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases. For example, if a state knows that it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, it may be more willing to submit to the jurisdiction of the court. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence. _Ad hoc_ judges usually (but not always) vote in favor of the state that appointed them and thus cancel each other out.
Generally, the Court sits as full bench , but in the last fifteen years, it has on occasion sat as a chamber. Articles 26–29 of the statute allow the Court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation of _ad hoc_ chambers to hear particular disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to deal specifically with environmental matters (although it has never been used).
_Ad hoc_ chambers are more frequently convened. For example, chambers were used to hear the _ Gulf of Maine Case_ (Canada/US). In that case, the parties made clear they would withdraw the case unless the Court appointed judges to the chamber acceptable to the parties. Judgments of chambers may either less authority than full Court judgments or diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of chambers might encourage greater recourse to the court and thus enhance international dispute resolution .
As of 9 February 2015, the composition of the Court is as follows:
NAME NATIONALITY POSITION TERM BEGAN TERM ENDS
Main article: Jurisdiction of the International Court of Justice
Parties upon becoming a UN member Parties prior to joining the UN under Article 93 UN observer states that are not parties
As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the Court's statute. Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party, and Nauru became a party in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.
Play media First gathering after Second World War, Dutch newsreel from 1946
In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. 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 organizations . That does not preclude non-state interests from being the subject of proceedings if a state brings the case against another. For example, a state may, in cases of "diplomatic protection", bring a case on behalf of one of its nationals or corporations.
* First, 36(1) provides that parties may refer cases to the Court
(jurisdiction founded on "special agreement" or "_compromis_"). This
method is based on explicit consent rather than true compulsory
jurisdiction. It is, perhaps, the most effective basis for the Court's
jurisdiction because the parties concerned have a desire for the
dispute to be resolved by the Court and are thus more likely to comply
with the Court's judgment.
* Second, 36(1) also gives the Court jurisdiction over "matters
specifically provided for... in treaties and conventions in force".
Most modern treaties contain a compromissory clause, providing for
dispute resolution by the ICJ. Cases founded on compromissory clauses
have not been as effective as cases founded on special agreement since
a state may have no interest in having the matter examined by the
Court and may refuse to comply with a judgment. For example, during
Iran hostage crisis
Audience of the "Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo"
An advisory opinion is a function of the Court open only to specified
In principle, the Court's advisory opinions are only consultative in character but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently, they are non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law. In arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.
An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.
Advisory opinions have often been controversial because the questions asked are controversial or the case was pursued as an indirect way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the _Nuclear Weapons Case _.
ICJ AND THE SECURITY COUNCIL
Article 94 establishes the duty of all UN members to comply with
decisions of the Court involving them. If parties do not comply, the
issue may be taken before the
The relationship between the ICJ and the
There was a marked reluctance on the part of a majority of the Court
to become involved in a dispute in such a way as to bring it
potentially into conflict with the Council. The Court stated in the
_Nicaragua_ case that there is no necessary inconsistency between
action by the
Should either party fail "to perform the obligations incumbent upon
it under a judgment rendered by the Court", the
For example, the
Examples Of Contentious Cases
Main article: List of International Court of Justice cases
* A complaint by the
Main article: Sources of international law
When deciding cases, the Court applies international law as summarised in Article 38 of the ICJ Statute , which provides that in arriving at its decisions the Court shall apply international conventions, international custom and the "general principles of law recognized by civilized nations." It may also refer to academic writing ("the teachings of the most highly qualified publicists of the various nations") and previous judicial decisions to help interpret the law although the Court is not formally bound by its previous decisions under the doctrine of stare decisis . Article 59 makes clear that the common law notion of precedent or _stare decisis _ does not apply to the decisions of the ICJ. The Court's decision binds only the parties to that particular controversy. Under 38(1)(d), however, the Court may consider its own previous decisions.
If the parties agree, they may also grant the Court the liberty to
decide _ex aequo et bono _ ("in justice and fairness"), granting the
ICJ the freedom to make an equitable decision based on what is fair
under the circumstances. That provision has not been used in the
Court's history. So far, the
International Court of Justice
The ICJ is vested with the power to make its own rules. Court procedure is set out in the _Rules of Court of the International Court of Justice 1978_ (as amended on 29 September 2005).
Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant, which files a written memorial setting out the basis of the Court's jurisdiction and the merits of its claim. The respondent may accept the Court's jurisdiction and file its own memorial on the merits of the case.
A respondent that does not wish to submit to the jurisdiction of the Court may raise Preliminary Objections. Any such objections must be ruled upon before the Court can address the merits of the applicant's claim. Often, a separate public hearing is held on the Preliminary Objections and the Court will render a judgment. Respondents normally file Preliminary Objections to the jurisdiction of the Court and/or the admissibility of the case. Inadmissibility refers to a range of arguments about factors the Court should take into account in deciding jurisdiction, such as the fact that the issue is not justiciable or that it is not a "legal dispute".
In addition, objections may be made because all necessary parties are not before the Court. If the case necessarily requires the Court to rule on the rights and obligations of a state that has not consented to the Court's jurisdiction, the Court does not proceed to issue a judgment on the merits.
If the Court decides it has jurisdiction and the case is admissible, the respondent then is required to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are filed, the Court holds a public hearing on the merits.
Once a case has been filed, any party (usually the applicant) may seek an order from the Court to protect the _status quo_ pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to interlocutory injunctions in United States law . Article 41 of the statute allows the Court to make such orders. The Court must be satisfied to have prima facie jurisdiction to hear the merits of the case before it grants provisional measures.
APPLICATIONS TO INTERVENE
In cases in which a third state's interests are affected, that state may be permitted to intervene in the case and participate as a full party. Under Article 62, a state "with an interest of a legal nature" may apply; however, it is within the Court's discretion whether or not to allow the intervention. Intervention applications are rare, and the first successful application occurred only in 1991.
JUDGMENT AND REMEDIES
Once deliberation has taken place, the Court issues a majority
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The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with criticisms of the United Nations, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings. Major criticisms include the following:
* "Compulsory" jurisdiction is limited to cases where both parties
have agreed to submit to its decision, and so instances of aggression
tend to be automatically escalated to and adjudicated by the Security
Council. According to the sovereignty principle of international law,
no nation is superior or inferior against another. Therefore, there is
no entity that could force the states into practice of the law or
punish the states in case any violation of international law occurs.
Therefore, the absence of binding force means that the 193 member
states of the ICJ do not necessarily have to accept the jurisdiction.
Moreover, membership in the UN and ICJ does not give the court
automatic jurisdiction over the member states, but it is the consent
of each state to follow the jurisdiction that matters.
* Organizations, private enterprises, and individuals cannot have
their cases taken to the International Court or appeal a national
supreme court's ruling. UN agencies likewise cannot bring up a case
except in advisory opinions (a process initiated by the court and
non-binding). Only states can bring the cases and become the
defendants of the cases. This also means that the potential victims of
crimes against humanity, such as minor ethnic groups or indigenous
peoples, may not have appropriate backing by a state.
* Other existing international thematic courts, such as the ICC ,
are not under the umbrella of the International Court. Unlike ICJ,
international thematic courts like ICC work independently from United
Nations. Such dualistic structure between various international courts
sometimes makes it hard for the courts to engage in effective and
* The International Court does not enjoy a full separation of powers
, with permanent members of the
International Criminal Tribunal for Rwanda
* ^ _A_ _B_ "No. 2015/5" (PDF) (Press release). International Court
of Justice. 6 February 2015. Retrieved 9 February 2015.
* ^ Koh, Steven Arrigg. "4 Things You Should Know About The Hague".
Retrieved 17 March 2017.
* ^ Statute of the International Court of Justice. Retrieved 31
* ^ Churchill, Ward. _A Little Matter of Genocide_. San Francisco:
City Lights Books, 1997. Print.
* Dunne, Michael. "Isolationism of a Kind: Two Generations of World Court Historiography in the United States," _Journal of American Studies_ (1987) 21#3 pp 327–351. * Rosenne S., "Rosenne's the world court: what it is and how it works _6th ed (Leiden: Martinus Nijhoff, 2003)._ * Decisions of the World Court Relevant to the UNCLOS (2010) and Contents & Indexes dedicated to Former ICJ President Stephen M. Schwebel * Van Der Wolf W. ;background:none transparent;border:none;-moz-box-shadow:none;-webkit-box-shadow:none;box-shadow:none;">v
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