Chapter-Four
ICJ are advisory and security Council
International Law and International Jurisdiction
At the end of the 19th century, governments met at the First Peace Conference at The Hague and decided to codify international law in treaties. Furthermore, they reached an agreement lo establish the first permanent international court, the Permanent Court of Arbitration. Article 14 of the Covenant of the League of Nations provided for the creation of a judicial body entrusted with two kinds of jurisdiction: contentious and advisory were clearly envisaged. In 1921, the predecessor of the Imcrnaiioruil Court of Justice (1C.I). the Permanent Court of International Justice (PC1J) materialized. The PC1.I was dissolved in 1946 at the same time as the League’ of Nations.
The 1CJ is an organ of the United Nations and the Statute of the International Court of Justice forms an integral part of the Charter of the United Nations. The court has functioned since 1945. It does not have compulsory international jurisdiction, and its main function remains to decide in accordance with international law all disputes submitted to it,[1] (Article 38).
The ICJ: Judgments & Advisory Opinions. How to Find a Judgment
Within Ihe limits of its ratione materiae, as mentioned above, the ICJ has both contentious and advisory jurisdictions. For the last sixty years it has had the opportunity 10 render hundreds of opinions which, due to numerous print and online sources are relatively easy to research.
The judgments of the Court are binding in law, although states do not always comply with the 1C.) judgments. However, as statistics show – see Paulson, Colter, “Compliance with Final Judgments of the International Court of Justice since 1987” 98 Am. J. Int’l. L. 434, 458-459 (2004) – while the overall percentage of full compliance by states has decreased since 1987 from 80% from 1946 to 1987 to 60% from 1987 to 2004, partial compliance has probably increased. Furthermore, the ICJ continues to be perceived as fulfilling its role a part of the United Nations system of maintaining peace and security.
The ICJ: The Procedure before the Court How to Find the Court Rules
The Statute ot’lhe ICJ contains the relevant rules regarding the procedure before the Court: “Competence of the Court” (Arts. 34-38), “Procedure” (Arts. 39-64), “Advisory Opinions” (Arts. 65-68).
Advisory opinion
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 United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court’s help in deciding complex legal issues that might fall under their respective mandates. 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,[2] Advisory Opinions have often been controversial, either 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 Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed. This occurred, for example, after the Nicaragua case, when Nicaragua brought the issue of the U.S.’s non-compliance with the Court’s decision before the Security Council. Furthermore, the most effective form to uiku action for the Security Council – coercive action under chapter VII of the United Nations Charter – can only be justified if international peace and security are at slake. The Security Council has never done this so far. The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992 in the Pan Am case. The problem was that these sanctions had been authorized by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, prima facie could not be regarded as appropriate since the action was ordered by the Security Council. In accordance with Article 103 of the UN Charier, obligations under the Charter took precedence over other treaty obligations. Nevertheless the Court declared the application admissible in 1998[3]. A decision on the merits has not been given since the parties (United Kingdom, United States and Libya) settled the case out of court in 2003.
Should either party fail “to perform the obligations incumbent upon it under a judgment rendered by the Court”, the Security Council may be called upon to “make recommendations or decide upon measures” if the Security Council deems such actions necessary. In practice, the Court’s powers have been limited by the unwillingness of the losing party to abide by the Court’s ruling, and by the Security Council’s unwillingness to impose consequences.
Law applied
Main article: Sources of international law
When deciding cases, the Court applies international law as summarized in-Article 38 of the IC.I Statute provides thai 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 dec’is’is. 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(l)(d), however, the Court may consider its own previous decisions. In reality, the ICJ rarely departs from its own previous decisions and treats them as precedent in a way similar to superior courts in common law systems. Additionally, international lawyers commonly operate as though ICJ judgments had precedential value.
If the parties agree, they may also grant the Court the liberty to decide ex aequo et bono (“in justice and fairness”)[4], granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. This provision has not been used in the Court’s history. So far the International Court of Justice has dealt with about 130 cases.
Procedure
The ICJ is vested with the power to make its own rules. Court procedure is set out in Rules of Court of the International Court of Justice 1978[5]. (as amended on 29 September Z005).
Preliminary objections
A respondent who 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 lo the jurisdiction of the Court and or the admissibility of the case. Inadmissibilily refers lo a range of arguments about factors the Court should take into account in deciding jurisdiction; for example, 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 will not proceed to issue a judgment on the merits. Once till written arguments are filed, the Court will hold a public hearing on the merits.
Once a case has been Hied, any party (but usually the Applicant) may seek an order from the Court lo protect the status quo pending the hearing of the case. Such orders are known as Provisional (or Interim) Measures and are analogous to jnterlocutory injunctions in United States law. The Court must be satisfied lo have prima facie jurisdiction to hear the merits of the case before granting provisional measures.
Applications to intervene
In cases where a third slate’s interests are affected, that state may be permitted lo 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 — the first successful application occurred in 1991.
Judgment and remedies
Once deliberation has taken place, the Court will issue a majority opinion. Individual judges may issue separate opinions (if they agree with the outcome reached in the judgment of the court but differ in their reasoning) or dissenting opinions (if they disagree with the majority), No appca! is possible, though any party may ask for the court to clarify if there is a dispute as to the meaning or scope of the court’s judgment[6].
Criticisms
This law-related article does not cite its references or sources. You can hel including appropriate citations, which can be found through legal research. The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with United Nations criticisms as a whole, 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:
- “Compulsory” jurisdiction is limited to cases where both parties have agreed to
submit to its decision, and, as such, instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. - Organizations, private enterprises, and individuals cannot have their cases takento the International Court, such as to appeal a national supreme court’s ruling.U.N. agencies likewise cannot bring up a case except in advisory opinions (a process initiated by the court and non-binding).
Other existing international thematic courts, such as the ICC, are not under the umbrella of the International Court.
- The International Court docs not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of even cases to which they consented in advance to be bound[7].
Members of the Court
The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. This sometimes makes it necessary for a number of rounds of voting to be carried out.
In order to ensure a measure of continuity, one third of the Court is elected every three years. Judges are eligible for re-election. Should a judge die or resign during his or her term of office, a special election is held as soon as possible to choose a judge to fill the Linexpired part of the term.
Elections arc held in New York (United States of America) on the occasion of the annual autumn session of the General Assembly. The judges elected at a triennial election enter upon their term of office on 6 February of the following year, after which the Court proceeds to elect by secret ballot a President and a Vice-President to hold office for three years.
All States parlies to the Statute of the Court have the right to propose candidates. These proposals arc- made not by the government of the State concerned, but by a group consisting of the members of the Permanent Court of Arbitration (see “History”) designated by thai State, i.e. by the four jurists who can be called upon to serve as members of an arbitral tribunal under the Hague Conventions of 1899 and 1907.The names of candidates must be communicated to the Secretaiy-General of the United Nations within a time-limit laid down by him/her.
Judice from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.
The Court may not include more than one national of the same State. Moreover, the Court as a whole must represent the main forms of civilization and the principal legal systems of the world.
Once elected, a Member of the Court is a delegate neither of the government of his own country nor of that of any other State. Unlike most other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.
In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. This has in fact never happened.
A Member of the Court, when engaged on the business of the Court, enjoys privileges and immunities comparable with those of the head of a diplomatic mission. In The Hague, ihe President takes precedence over the doyen of the diplomatic corps, after which precedence alternates between judges and ambassadors. Each Member of the Court receives an annual salary consisting of a base salary (which for 2010 amounts to US$166,596) and post adjustment, with a special supplementary allowance of US$15,000 for the President. On leaving the Court, they receive annual pensions which, after a nine-year term of office, amount to 50 per cent of the annual base salary.
Although the Court is deemed to be permanently in session, only its President is obliged to reside in The Hague. In practice, the majority oi Court Members reside in Vie Hague ana all will normally spend the greater part of the year there.
Presidency
The President and the Vice-President are elected by the Members of the Court every three years by secret ballot. The election is held on the date on which Members of the Court elected at a triennial election are to begin, their terms of office or shortly thereafter. An absolute majority is required and there arc no conditions with regard to nationality. The President and the Vice-President may be re-elected.
‘The President presides at alt meetings of the Court; he/she directs its work and supervises its administration, with the assistance of a Budgetary and Administrative Committee and of various other committees, all composed of Members of the Court. During judicial deliberations, the President has a casting vole in the event of votes being equally divided.
The President receives a special supplementary allowance of 15,000 dollars per annum. In addition to his/her annual salary.
The Vice-President replaces the President in his/her absence, in the event of his/her inability to exercise his/her duties, or in the event of a vacancy in the presidency. For this purpose he/she receives a daily allowance. In the absence of the Vice-President, this role devolves upon the senior judge.
[1] UN Chapter Article 38,
[2] (American Society of International Law) Insights December 2003
[3] ICJ/ Cij Org. Retrieved 4 November 2011
[4] Statute of the ICJ Art.-38 (2)
[5] as amended on 29 September 2005
[6] Statute of the ICJ Art. 60
[7] ÒWorld court completing the circle” Time 28 November 1960 retrieved 4 November 2011