International Court Of Justice Essay, Research Paper

The International Court Of Justice (ICJ) is the principal

judicial organ of the United Nations, which succeeded the Permanent

court of International Justice after World War Two. It gains its

legitimacy from Article 92 of the UN Charter which allows it to

function ” in accordance with the annexed Statute, which is based upon

the Statute of the Permanent Court of International Justice and forms

an integral part of the present Charter”.

By Article 93 all members of the UN are ipso-facto members of

the Statute and that states not members may become parties, on

conditions to be determined in each case by the UN General Assembly on

recommendation of the Security Council. Therefore allowing countries

such as Switzerland and San Marino, though not members of the UN, to

be parties to the Statute of the Court.

The court consist of 15 judges, no two of whom may be

Nationals of the same state, elected by the General assembly and the

Security Council. They are elected for 9 years and are eligible for

reelections.

The seat of the court is in Hague, Holland, but it may hold

sessions elsewhere whenever it considers desirable. It is a continuing

body. The Statute provides that it is permanently in session except

during judicial vacations. It is also an autonomous body. It elects

its president and vice- president, appoints its registrar, and

provides for the appointment of other officers and clerical staff.

Its function is to pass judgement on disputes between states,

as such only states may bring their cases before the court. It is open

to all states that are party to the statute and those who agree to the

conditions laid down by the SC. The proceedings of the court are

carried out in French and English; either may be used by the parties.

Written pleading and oral presentations presented in one language are

translated into the other. The judgements and opinions are both in

French and English.

Cases are brought before the court either by the notification

to it of a special agreement concluded by the parties or by the

unilateral action of one of them through a written appeal to the

registrar. Its proceedings are in two parts, written and oral.

The Court may also hear witnesses and appoint commissions of

experts to make investigations and reports when necessary. These

procedures were used in the Corfu Channel, Temple of Preah Vihear and

in South West Africa(1966). The deliberation of the court are held in

private, but the judgements, which are by majority vote, are read in

open court. In the case of a tie, the President may cast a deciding

vote; this was done in the South West Africa Case where a 7-7 vote was

cast. Any judge may file a separate opinion if he does not agree in

whole or part with the judgement. The decision of the court is final

and without appeal.

Although the ICJ has no enforcement powers, Article 94 of the

Charter incorporates an undertaking on the part of each member of the

UN “to comply with the decision of the … court…in any case to

which it is a party” and a further provision that:

IF any party to a case fails to perform the obligations

incumbent upon it under a judgement rendered by the court, the other

party may have recourse to the Security Council, which may, if it deem

necessary, make recommendations or decide upon measures to be taken to

give effect to the judgement.

The court is authorised by Article 65 of the Statute to give

advisory opinions on any legal questions at the request of whatever

body may be authorised by or in accordance with the UN Charter to make

such a request. Article 96 of the Charter provides that such opinions

may be requested by the General Assembly or the SC and by other organs

of the UN and specialized agencies, when authorised by the GA. Such

requests must be made by means of a written request containing an

exact statement of the questions, accompanied by all documents likely

to shed light upon them. >From this point on, the procedure before the

court is somewhat analogous to contentious cases.

In its role as and advisory body, the court has given some

important opinions with regard to the costs of peacekeeping, which

could be reckoned as normal expenses. It also gave opinions concerning

admissions into the UN. Because of the ICJ’s limited powers, its

strict need to adhere to its charter and its impotency of action

unless approached we must consider its ability to resolve cases

brought before it successfully, its failures to do so when approached

and its shortcomings, in accessing its effectiveness, keeping in mind

its role in maintaining World peace.

Since its founding in 1946, the ICJ has dealt with 41

contentious cases between states and has also delivered 21 advisory

opinions. It has a mixed record of successes and failures, with a

surprisingly high degree of compliance with the verdict of the ICJ.

(Only two cases involving the Corfu Channel Case and the US-Nicaragua

case did the countries refuse to comply with the ICJ judgement.) One

reason for this compliance is the use of the ICJ on a voluntary basis.

Hence States would not seek the ICJ’s verdict without having first

accepted the court’s verdict in advance, be it in their favour of not,

as a matter of obligation.

An example of a successful case where the ICJ is effective is

in territorial waters and fishing rights in the “Fisheries” case

(1951). In it, the ICJ verdict in favour of Norway settled a

long-standing Dispute between the United States and Norway involving

British fishing vessels operating inside Norwegian claimed waters.

Another success of the ICJ were the “North Sea Continental Shelf”

cases (1969) involving Denmark, the Netherlands, and West Germany.

This successful settlement was crucial to the drilling of oil and gas

in the North Sea later. A further example is the “Fisheries

Jurisdiction” case between the UK and Iceland (1974). In this case,

the ICJ contributed to the development of the Law of the Sea in that

it advocated the Conservation of the ‘living resources of the sea”.

It was also effective in the territorial cases, which included

the small group of uninhabited islands in the channel islands

(Minquier and Ecrehou islands), disputed by UK and France. One

longstanding dispute between Nicaragua and Honduras since 1906,

concerning villages on their border and a dispute over the sovereignty

Preah Vihear temple by Cambodia and Thailand which was found to be in

Cambodian territory. More recently, the ICJ resolved a border clash

between Burkina Faso and Mali in the 1986 “Frontier Dispute” Case. It

also ruled on two pieces of land disputed by Belgium and Holland which

was found to be Belgium’s.

However the ICJ is noted for its failures to successfully

resolve inter-state disputes. To date there are more than 30

unresolved frontier cases concerning land of greater value, which has

never been submitted to the ICJ, because one party’s claim is not on

legal grounds. In some cases, like the above, one or more of the

involved parties refuse to accept the jurisdiction of the court, thus

resulting in the court being ineffective. For example the aircraft

incidents between the US and USSR in respect of aircraft shot down off

Japan and one forced down in Hungry, here both parties refused ICJ

jurisdiction. In 1955 Israel, US and the UK brought a case against

Bulgaria for the shooting down of an Israeli civilian aircraft over

its territory. Bulgaria rejected ICJ jurisdiction. The Courts hands

were tied.

Another example of the ICJ’s ineffectiveness was in 1960 when

Ethiopia and Liberia brought a case to the ICJ claiming that South

Africa had violated the human rights of the natives of Namibia, which

had been a mandate under the league of Nations and which it ruled.

After a long and tedious process, the ICJ proclaimed that the case of

Ethiopia and Liberia was illegal, and thus, the case was dismissed on

a “procedural point”.

Other instances of the ICJ’s limitations in its effectiveness

was its 1979 verdict that ordered the release of US diplomats held

Hostage in Teheran, and payment of reparations. In this case Iran

contested and duly ignored the ICJ’s jurisdiction. In 1984 Nicaragua

complained that the US had helped the Nicaraguan Contra rebels against

the Sandinista government. Two years later, the ICJ ruled in favour of

Nicaragua’s claims, but in 1985, a year before, the US had already

withdrawn its acceptance of the ICJ’s jurisdiction. All these examples

reflect the limitations of the ICJ in helping to settle interstate

disputes.

Also, some cases may take several years to be heard. the Court

may require certain provisional measures before a final judgement.

Hence it is very time consuming to go through the ICJ.

However, the blame for the limited effectiveness of the ICJ

cannot be laid on the court itself. The ICJ’s neutrality has been

maintained as far as possible, no two ICJ judges may be of the same

nationality, but prejudices are impossible to eliminate totally due to

human bias. In addition, major issues of peace and security between

the more powerful states are rarely submitted as most governments tend

to “consider the recognition of the jurisdiction of the court as

infringing on their sovereignty”. Indeed the average yearly number of

decisions has not been more than two. Furthermore, there is no real

means of enforcing the ICJ’s verdict. THe ICJ has also been criticized

as time consuming with little usefulness. However, it cannot be wholly

blamed as parties involved in claims often request for more time to

prepare their cases. Since its use is totally voluntary, it cannot be

expected to resolve cases not brought to court and thus cannot be

responsible for legal skirmishes not brought to its doorstep.

Despite of its shortcomings and the many failures it has

experienced, the ICJ has had a positive effect on the development of

International Law and the propagation of the principals of

sovereignty, non-conquest, human rights and the rights of existence

and self-defence of a state. In addition the ICJ has helped resolve

disputes between states with some degree of success, and given the

numerous difficulties it faces, its achievements are respectable and

its usefulness is undeniable. Most importantly, the ICJ, at the very

least, provides an additional option for states to settle their

disputes peacefully through third party intervention, and this has

reduced the threat of open war.