The International Court of Justice (ICJ; French: Cour internationale de justice, CIJ), or colloquially the World Court, is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN), and is located in The Hague, Netherlands.
The ICJ is the successor of the Permanent Court of
International Justice (PCIJ), which was established in 1920 by the League of
Nations. After the Second World War, the League and the PCIJ were replaced by
the United Nations and ICJ, respectively. The Statute of the ICJ, which sets
forth its purpose and structure, draws heavily from that of its predecessor,
whose decisions remain valid. All member states of the UN are party to the ICJ
Statute and may initiate contentious legal cases; however, advisory proceedings
may be submitted only by certain UN organs and agencies.
The ICJ consists of a panel of 15 judges elected by the UN
General Assembly and Security Council for nine-year terms. No more than one
judge of each nationality may be represented on court at the same time, and
judges collectively must reflect the principal civilizations and legal systems
of the world. Seated in the Peace Palace in The Hague, the ICJ is the only
principal UN organ not located in New York City. Its official working languages
are English and French.
Since the entry of its first case on 22 May 1947, the ICJ
has entertained 191 cases through 13 November 2023. Pursuant to Article 59 of
the Statute of the International Court of Justice, the court's rulings and
opinions are binding on the parties with respect to the particular case ruled
on by the court.
History
The first permanent institution established for the purpose
of settling international disputes was the Permanent Court of Arbitration
(PCA), which was created by The Hague Peace Conference of 1899. Initiated by
the Russian Tsar Nicholas II, the conference involved all the world's major
powers, as well as several smaller states, and resulted in the first
multilateral treaties concerned with the conduct of warfare. Among these was
the Convention for the Pacific Settlement of International Disputes, which set
forth the institutional and procedural framework for arbitral proceedings,
which would take place in The Hague, Netherlands. Although the proceedings
would be supported by a permanent bureau—whose functions would be equivalent to
that of a secretariat or court registry—the arbitrators would be appointed by
the disputing states from a larger pool provided by each member of the
convention. The PCA was established in 1900 and began proceedings in 1902.
A second Hague Peace Conference in 1907, which involved most
of the world's sovereign states, revised the convention and enhanced the rules
governing arbitral proceedings before the PCA. During this conference, the
United States, Great Britain and Germany submitted a joint proposal for a
permanent court whose judges would serve full-time. As the delegates could not
agree how the judges would be selected, the matter was shelved pending an
agreement to be adopted at a later convention.
The Hague Peace Conferences, and the ideas that emerged
therefrom, influenced the creation of the Central American Court of Justice,
which was established in 1908 as one of the earliest regional judicial bodies.
Various plans and proposals were made between 1911 and 1919 for the
establishment of an international judicial tribunal, which would not be
realized in the formation of a new international system following the First
World War.
The Permanent Court
of International Justice
The unprecedented bloodshed of the First World War led to
the creation of the League of Nations, established by the Paris Peace
Conference of 1919 as the first worldwide intergovernmental organization aimed
at maintaining peace and collective security. Article 14 League's Covenant
called for the establishment of a Permanent Court of International Justice
(PCIJ), which would be responsible for adjudicating any international dispute
submitted to it by the contesting parties, as well as to provide an advisory
opinion upon any dispute or question referred to it by the League of Nations.
In December 1920, following several drafts and debates, the
Assembly of the league unanimously adopted the statute of the PCIJ, which was
signed and ratified the following year by a majority of members. Among other
things, the new Statute resolved the contentious issues of selecting judges by
providing that the judges be elected by both the council and the Assembly of
the league concurrently but independently. The makeup of the PCIJ would reflect
the "main forms of civilization and
the principal legal systems of the world". The PCIJ would be
permanently placed at the Peace Palace in The Hague, alongside Permanent Court
of Arbitration.
The PCIJ represented a major innovation in international
jurisprudence in several ways:
Unlike previous
international arbitral tribunals, it was a permanent body governed by its
statutory provisions and rules of procedure
It had a permanent
registry that served as a liaison with governments and international bodies
Its proceedings were
largely public, including pleadings, oral arguments, and all documentary
evidence
It was accessible to
all states and could be declared by states to have compulsory jurisdiction over
disputes
The PCIJ Statute was
the first to list sources of law it would draw upon, which in turn became
sources of international law
Judges were more
representative of the world and its legal systems than any prior international
judicial body
Unlike the ICJ, the PCIJ was not part of the league, nor
were members of the league automatically a party to its Statute. The United
States, which played a key role in both the second Hague Peace Conference and
the Paris Peace Conference, was notably not a member of the league. However,
several of its nationals served as judges of the court.
From its first session in 1922 until 1940, the PCIJ dealt
with 29 interstate disputes and issued 27 advisory opinions. The court's
widespread acceptance was reflected by the fact that several hundred
international treaties and agreements conferred jurisdiction upon it over
specified categories of disputes. In addition to helping resolve several
serious international disputes, the PCIJ helped clarify several ambiguities in
international law that contributed to its development.
The United States played a major role in setting up the PCIJ
but never joined. Presidents Wilson, Harding, Coolidge, Hoover, and Roosevelt
all supported membership, but did not get the two-thirds majority in the Senate
required for a treaty.
Establishment of the
International Court of Justice
Following a peak of activity in 1933, the PCIJ began to
decline in its activities due to the growing international tension and
isolationism that characterized the era. The Second World War effectively put
an end to the court, which held its last public session in December 1939 and
issued its last orders in February 1940. In 1942 the United States and United
Kingdom jointly declared support for establishing or re-establishing an
international court after the war, and in 1943, the U.K. chaired a panel of
jurists from around the world, the "Inter-Allied
Committee", to discuss the matter. Its 1944 report recommended that:
The statute of any new
international court should be based on that of the PCIJ;
The new court should
retain an advisory jurisdiction;
Acceptance of the new
court's jurisdiction should be voluntary;
The court should deal
only with judicial and not political matters
Several months later at the Moscow conference in 1943, the
major Allied Powers—China, the USSR, the U.K., and the U.S.—issued a joint
declaration recognizing the necessity "of
establishing at the earliest practicable date a general international
organization, 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".
The following Allied conference at Dumbarton Oaks, in the
United States, published a proposal in October 1944 that called for the
establishment of an intergovernmental organization that would include an
international court. A meeting was subsequently convened in Washington, D.C.,
in April 1945, involving 44 jurists from around the world to draft a statute
for the proposed court. The draft statute was substantially similar to that of
the PCIJ, and it was questioned whether a new court should even be created.
During the San Francisco Conference, which took place from 25 April to 26 June
1945 and involved 50 countries, it was decided that an entirely new court
should be established as a principal organ of the new United Nations. The
statute of this court would form an integral part of the United Nations
Charter, which, to maintain continuity, expressly held that the Statute of the International
Court of Justice (ICJ) was based upon that of the PCIJ.
Consequently, the PCIJ convened for the last time in October
1945 and resolved to transfer its archives to its successor, which would take
its place at the Peace Palace. The judges of the PCIJ all resigned on 31
January 1946, with the election of the first members of the ICJ taking place
the following February at the First Session of the United Nations General
Assembly and Security Council. In April 1946, the PCIJ was formally dissolved,
and the ICJ, in its first meeting, was elected President José Gustavo Guerrero
of El Salvador, who had served as the last president of the PCIJ. The court
also appointed members of its Registry, mainly drawn from that of the PCIJ, and
held an inaugural public sitting later that month.
The first case was submitted in May 1947 by the United
Kingdom against Albania concerning incidents in the Corfu Channel.
Activities
The Peace Palace in
The Hague, Netherlands, seat of the ICJ
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 United States's covert war against
Nicaragua was in violation of international law (Nicaragua v. United States),
the United States withdrew from compulsory jurisdiction in 1986 to accept the
court's jurisdiction only on a discretionary basis. Chapter XIV of the United
Nations Charter authorizes the UN Security Council to enforce Court rulings.
However, such enforcement is subject to the veto power of the five permanent
members of the council, which the United States used in the Nicaragua case.
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
people nominated by the national groups in the Permanent Court of Arbitration.
The election process is set out in Articles 4–19 of the ICJ Statute. Elections
are staggered, with five judges elected every three years to ensure continuity
within the court. Should a judge die in office, the practice has generally been
to elect a judge in a special election to complete the term. Historically,
deceased judges have been replaced by judges from the same region, though not
—as often wrongly asserted— necessarily from the same nationality.
Article 3 states that 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". This has been
interpreted to include common law, civil law, socialist law, and Islamic law,
while the precise meaning of "main
forms of civilization" is contested.
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 Arab), two for Eastern European
states, three for Asian states and two for Latin American and Caribbean states.
For most of the court's history, the five permanent members of the United
Nations Security Council (France, USSR, China, the United Kingdom, and the
United States) have always had a judge serving, thereby occupying three of the
Western seats, one of the Asian seats and one of the Eastern European seats.
Exceptions have been China not having a judge on the court from 1967 to 1985,
during which time it did not put forward a candidate, and British judge Sir
Christopher Greenwood being withdrawn as a candidate for election for a second
nine-year term on the bench in 2017, leaving no judges from the United Kingdom
on the court. Greenwood had been supported by the UN Security Council but
failed to get a majority in the UN General Assembly. Indian judge Dalveer Bhandari
took the seat instead.
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.
To insure impartiality, Article 16 of the Charter requires
independence from their national governments or other interested parties,
stating, "No member of the Court may
exercise any political or administrative function, or engage in any other
occupation of a professional nature." In addition, Article 17 requires
that judges do not show any prior biases on cases before them, specifically, "No member may participate in the
decision of any case in which he has previously taken part as agent, counsel,
or advocate for one of the parties, or as a member of a national or
international court, or of a commission of enquiry, or in any other
capacity."
Judges of the International Court of Justice are entitled to
the style of His/Her Excellency. Judges 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 many have chosen to remain involved in outside arbitration
and hold professional posts as long as there is no conflict of interest. Former
judge Bruno Simma and current judge Georg Nolte have acknowledged that moonlighting
should be restricted.
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 United
States issued a communiqué suggesting that it could not present sensitive
material to the court because of the presence of judges from the Soviet bloc.
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), [1996] ICJ Reports 66. Judges may also
deliver separate dissenting opinions.
In its 77 years of history, only five women have been
elected to the Court, with former UN Special Rapporteur Philip Alston calling
for states to take seriously questions of representation in the bench.
In 2023, judges elected to take office from 2024 did not
include a Russian member, so for the first time, from 2024 there will be no
member from the Commonwealth of Independent States. This is also the first time
that Russia would not have a judge on the ICJ, even going back to its predecessor,
the Soviet Union.
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 favour of the state that appointed
them and thus cancel each other out.
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. 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 have
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.
Jurisdiction
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,
which was used by Switzerland in 1948 and Nauru in 1988, prior to either
joining the UN. 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 three types of
ICJ cases: contentious issues, incidental jurisdiction, 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 states may be parties in contentious
cases; individuals, corporations, component parts of a federal state, NGOs, UN
organs, and self-determination groups are excluded from direct participation,
although the court may receive information from public international
organizations. However, this does not preclude non-state interests from being
the subject of proceedings; for example, a state may bring a case on behalf of
one of its nationals or corporations, such as in matters concerning diplomatic
protection.
Jurisdiction is often a crucial question for the court in
contentious cases. The key principle is that the ICJ has jurisdiction only on
the basis of consent. Under Article 36, there are four foundations for the
court's jurisdiction:
Compromis or
"special agreement", in which parties provide explicit consent to the
court's jurisdiction by referring cases to it. While not true compulsory
jurisdiction, this is perhaps the most effective jurisdictional basis, 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.
Compromissory clauses
in a binding treaty. Most modern treaties contain such clauses to provide 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 the Iran hostage crisis, Iran refused to
participate in a case brought by the US based on a compromissory clause
contained in the Vienna Convention on Diplomatic Relations and did not comply
with the judgment. 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.
Optional clause
declarations accepting the court's jurisdiction. Also known as Article 36(2)
jurisdiction, it is sometimes misleadingly labeled "compulsory",
though such declarations are voluntary. Many such declarations contain
reservations that exclude from jurisdiction certain types of disputes (ratione
materia). The principle of reciprocity may further limit jurisdiction, as
Article 36(2) holds that such declaration may be made "in relation to any
other State accepting the same obligation...” As of January 2018, seventy-four
states had a declaration in force, up from sixty-six in February 2011; of the
permanent Security Council members, only the United Kingdom has a declaration.
In the court's early years, most declarations were made by industrialized
countries. Since the 1986 Nicaragua case, declarations made by developing
countries have increased, reflecting a growing confidence in the court. However, even those industrialized countries that have invoked optional declarations
have sometimes increased exclusions or rescinded them altogether. Notable
examples include the United States in the Nicaragua case, and Australia, which
modified its declaration in 2002 to exclude disputes on maritime boundaries,
most likely to prevent an impending challenge from East Timor, which gained independence
two months later.
Article 36(5) provides for jurisdiction on the basis of
declarations made under the Statute of the Permanent Court of International
Justice. Article 37 similarly transfers jurisdiction under any compromissory
clause in a treaty that gave jurisdiction to the PCIJ.
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