THE ROLE OF INTERNATIONAL COURT OF JUSTICE IN INTERNATIONAL DISPUTE SETTLEMENT, PART 2

Chapter-Three

Chapter-Three: introductory of International court of justice are composition

The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had already for some years known a period of diminished activity. After its last public sitting on 4 December 1939, the permanent court of International justice did not in fact deal with any judicial business and no further elections of judges were help. In 1940 the court removed to GENEVA, a single judge remaining at the HAGUE, together with a few register officials of Dutch nationality. It was inevitable that even under the stress of the war some thought should be given to future of the court, as well to the creation of a new international political order.1

In 1942 the United states secretary of state and the foreign secretary of the United Kingdom declared themselves in favour of the establishment or re-establishment of an international court after war, and the Inter-American juridical committee recommended the extension of the PCLTs jurisdiction. Early in 1943, the United Kingdom Government took the initiative of inviting a number of experts to London to constitute an informal inter-Allied committee to examine the matter. This committee, under the chairmanship of Sir William Malkin(United Kingdom), held 19meetings, which were attended by jurists from 11 countries. In its report, which was published on 10 February 1944, it recommended: that the statue of any new international court should be based on that of the permanent court of international court of Justice. Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity “of establishing at the earliest practicable date a general international organization, [1]

based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.

This declaration led to exchanges between the Four Powers at Dumbarton Oaks, resulting in the publication on 9 October 1944 of proposals for the establishment of a general international organization, to include an international court of justice. The next step was the convening of a meeting in Washington, in April 1945, of a committee of jurists representing 44 States. This Committee, under the chairmanship of G. H. Hackworth (United States), was entrusted with the preparation of a draft Statute for the future international court of justice, for submission to the San Francisco Conference, which during the months of April to June 1945 was to draw up the United Nations Charter.

The San Francisco Conference nevertheless showed some concern that all continuity with the past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on the basis of past experience, and it was felt better not to change something that had seemed to work well. The Charter therefore plainly stated that the Statute of the International Court of Justice was based upon that of the PCIJ. At the same time, the necessary steps were taken for a transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of Justice. The judges of the PCIJ all resigned on 31 January 1946, and the election of the first Members of the International Court of Justice took place on 6 February 1946, at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge Jose Gustavo Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed the members of its Registry (largely from among former officials of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was submitted in May 19472. It concerned incidents in the Corfu Channel and was brought by Ihc United Kingdom against Albania.

Composition

The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4-19 of the 1CJ statute. Judges serve for nine year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.

Should a judge die in office, the practice has generally been to elect a judge of the same nationality lo complete the term. No two 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, this has meant common law, civil law and socialist law (now post-communist law). Since the 1960s four of the five permanent members of the Security Council (France, Russia, the United Kingdom, and the United States) have always had a judge on the Court, The exception was China (the Republic of China until 1971, the People’s Republic of China from 1971 onwards), which did not have a judge on the Court from 1967-1985, because it did not put forward a candidate.[2]

Article 2 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 specifically with in Articles 16-18. Judges of the ICJ are not able to hold any other post, nor act as counsel. In practice the Members of the Court have their own interpretation of these rules. A judge can be dismissed only by a unanimous vote of other members of the Court[3]. Despite these provisions, the independence of ICJ judges has been questioned. For example, during the Nicaragua Case, the USA issued a iommuniqufi suggesting that it could not present sensitive material to the Court because of the presence of judges from Eastern bloc states.[4]

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[5]. Judges may also deliver separate dissenting opinions.

Ad hoc judges

Article 31 of ihe statute sets out a procedure whereby ad hoc judges sit on contentious cases before the Court. This system allows any party to a contentious case to nominate a judge of their choosing. H is possible that as many as seventeen judges may sit on, one case.

This system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases to the Court. For example, if a state knows 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 that state may be more willing to submit lo the Court’s jurisdiction.   

Chambers

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, la 1993 a special chamber was established, under Article 26(1) of the 1CJ statute, to deal specifically with environmental matters (although this chamber has never been used).

Ad hoc chambers are more frequently convened. For example, chambers were used to hear the Gulf of Maine Case (USA v Canada)[6]. In that case, the parties made clear they would withdraw the case unless the Court appointed judges to the chamber who were acceptable to the parties. On the other hand, the use of chambers might encourage greater recourse to the Court and thus enhance international dispute resolution[7].

Re-elected were France’s Ronny Abraham and Jordan’s Awn Shawkat Al-Khasawneh (terms expired on 5 February 2009), while UK’s Christopher Greenwood. Brazil’s Antonio Au gusto Cancado Trindade and Somalia’s Abdulqawi YusuF(terms began on 6 February 2009) were newly elected.

The declared candidates Sayeman Bula-Bula (Democratic Republic of the Congo.), Miriam Defensor-Santiago (Philippines) and Maurice Kamto (Cameroon) lost in the final voting. The 3 new judges replaced UK’s Rosalvn Higgins (1CJ President), Gonzalo Parra Arantuircn of Venezuela and Madagascar’s Raymond Ranjeva (terms all expired on 5 February 2009).

Jurisdiction

Main article: Jurisdiction oft he International Court of Justice As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court’s statute[8]. 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. The issue of jurisdiction is considered in the two types of 1CJ cases: contentious issues and advisory opinions.

Contentious issues

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 suites may be parties in contentious cases. Individuals, corporations, parts of a federal suite. 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 preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of “diplomatic protection”, bring a case on behalf of one of its nationals or corporations[9]. The International Court of Justice Research Guide Written by Dana Neaesu Last Updated January 23, 2008

Jurisdiction is often a crucial question for the Court in contentious cases. (See Procedure below.) The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court’s jurisdiction may be founded.

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.

Second, 36(1) also gives the Court jurisdiction over “matters specifically provided for … in treaties and conventions in force”. Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ[10].    For example, during the Iran hostage crisis, 1 ran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, not did it comply with the judgment[11]. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration[12].

Third, Article 36(2) allows states to make optional clause declarations accepting the Court’s jurisdiction. The label “compulsory” which is sometimes placed on Article 36(2) jurisdiction is misleading since ftolaratfcns by states are voluntary.

Furthermore, many declarations contain reservations, such as exclusion from jurisdiction certain types of disputes (“ratione material”)[13]. The principle of reciprocity may further limit jurisdiction. As of February 2011, sixty-six states had a declaration in force[14]. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court’s early years, most declarations were made by industrialised countries. Examples include the USA, as mentioned previously and Australia who modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later)[15].

Finally. 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Conn of international Justice’s statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the FCIJ.

[1] International Law by Dr. Harunur Rashied

[2] 22 May 1947 United kingdom VS Albania

[3] International Curt of justice statute, Art. -18 (1)l

[4]  Case concerning military and paramilitary Activities in and against Nicaragua (Nicaragua VS USA) 1986 International court of justice report 14. 158-160 (Ments) Per Judge lachs

[5] (1996) International court of justice reports 66.

[6] Retrieved 17 December 2005

[7] Schwedcl. S .. Ad Hoc chambers of the international court of Justice (1987) 81 American journal of International Law 831.

[8] The Jurisdiction is Discussed in the entire chapter xiv of the UN chapter Article-92-96Full text

[9] See the Nottl bolim case (Liechtenstein VS Guatemala), (1955) International Court of Justice Reports 4

[10] See list of trealies that confer jurisdiction on the ICJ

[11] (1979) ICJ Reports 7

[12] (1987) 81 American Journal of International Law 855

[13] (Leiden: Martinus Nijhoff 1995)

[14] Retrived 21 February 2011

[15] Asia Times Retrieved 21 April 2006