Incidental
jurisdiction
Until rendering a final judgment, the court has competence
to order interim measures for the protection of the rights of a party to a
dispute. One or both parties to a dispute may apply the ICJ for issuing interim
measures. In the Frontier Dispute Case, both parties to the dispute, Burkina
Faso and Mali, submitted an application to the court to indicate interim
measures. Incidental jurisdiction of the court derives from the Article 41 of
its Statute. Similar to the final judgment, the order for interim measures of
the court are binding on state parties to the dispute. The ICJ has competence
to indicate interim measures only if the prima facie jurisdiction is satisfied.
Advisory opinions
An advisory opinion is a function of the court open only to
specified United Nations bodies and agencies. The UN Charter grants the General
Assembly or the Security Council the power to request the court to issue an
advisory opinion on any legal question. Organs of the UN other than the General
Assembly or the Security Council require the General Assembly's authorization
to request an advisory opinion of the ICJ. These organs of the UN only request
an advisory opinion regarding the matters that fall within the scope of their
activities. 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.
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.
In December 2024, in the first time, the court began
hearings about climate change. This is the biggest case in the history of the
court: 99 countries and more than 12 intergovernmental organizations will be
heard over two weeks. The General Assembly requested an advisory opinion
addressing two questions: the obligations of States under international law to
protect the climate system from anthropogenic emissions for States and for
present and future generations, and the legal consequences arising where
states, by their acts and omissions, have caused significant harm to the
climate system and other parts of the environment.
Examples of
contentious cases
1980: A complaint by the United States that Iran was
detaining American diplomats in Tehran in violation of international law.
1982: A dispute between Tunisia and Libya over the
delimitation of the continental shelf between them.
1989: A complaint by Iran after the shooting down of Iran
Air Flight 655 by a United States Navy guided missile cruiser.
1984: A dispute over the course of the maritime boundary
dividing the U.S. and Canada in the Gulf of Maine area.
1999: A complaint by the Federal Republic of Yugoslavia
against the member states of the North Atlantic Treaty Organization regarding
their actions in the Kosovo War. This was denied on 15 December 2004 because of
lack of jurisdiction, the FRY not being a party to the ICJ statute at the time
it made the application.
2005: A complaint by the Democratic Republic of the Congo
that its sovereignty had been violated by Uganda and that the DRC had lost
billions of dollars’ worth of resources was decided in favour of the DRC.
2011: A complaint by the Republic of North Macedonia (Former
Yugoslav Republic of Macedonia) that Greece's vetoing of its accession to NATO
violates the Interim Accord of 13 September 1995 between the two countries. The
complaint was decided in favour of North Macedonia on 5 December 2011.
2017: A complaint by the Republic of India regarding a death
penalty verdict against an Indian citizen, Kulbhushan Jadhav, by a Pakistani
military court (based on alleged espionage and subversive activities).
2022: A complaint by Ukraine against Russia for violating
the 1948 Genocide Convention, to which both Ukraine and Russia are parties, by
falsely claiming genocide as a pretext for invading Ukraine. The International
Association of Genocide Scholars supported Ukraine, who asked for expedited
provisional measures directing Russia to halt its offensive. Russian
representatives refused to appear. On 16 March, the ICJ ordered Russia to "immediately suspend the military
operations", on a 13–2 vote with the Russian and Chinese judges in
opposition. The order is binding on Russia, but the ICJ cannot enforce it.
Relationship with UN
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 five permanent members of the Security Council or its allies, any
resolution on enforcement could then be vetoed by that member. That occurred,
for example, after the Nicaragua case, when Nicaragua brought the issue of the
United States' noncompliance with the court's decision before the Security
Council. Furthermore, if the Security Council refuses to enforce a judgment
against any other state, there is no method of forcing the state to comply.
Furthermore, the most effective form to take action for the Security Council,
coercive action under Chapter VII of the United Nations Charter, can be
justified only if international peace and security are at stake. The Security
Council has never done that 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 court had to consider an application from Libya for the order of
provisional measures of protection to safeguard its rights, which, it alleged,
were being infringed by the threat of economic sanctions by the United Kingdom
and United States. The problem was that these sanctions had been authorized by
the Security Council, which resulted in 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 1971 Montreal Convention, could not be prima facie
regarded as appropriate since the action was ordered by the Security Council.
In accordance with Article 103 of the UN Charter, obligations under the Charter
took precedence over other treaty obligations. Nevertheless, the court declared
the application admissible in 1998. 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.
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 Security
Council and adjudication by the ICJ. However, when there is room for conflict,
the balance appears to be in favour of the Security Council.
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. However, in theory, "so far as the parties to the case are concerned, a judgment of
the Court is binding, final and without appeal", and "by signing the Charter, a State Member
of the United Nations undertakes to comply with any decision of the
International Court of Justice in a case to which it is a party."
For example, the United States had previously accepted the
court's compulsory jurisdiction upon its creation in 1946 but in 1984, after Nicaragua v. United States, withdrew its
acceptance following the court's judgment that called on the US to "cease and to refrain" from
the "unlawful use of force"
against the government of Nicaragua. The court ruled (with only the American
judge dissenting) that the United States was "in breach of its obligation under the Treaty of Friendship with
Nicaragua not to use force against Nicaragua" and ordered the United
States to pay war reparations.
Law applied
When deciding cases, the court applies international law as
summarized 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 and frequently cites them.
If the parties agree, they may also grant the court the
liberty to decide ex aequo et bono
("out of equality, and for the good"), 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 has dealt with about 180 cases.
Procedure
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.
Preliminary
objections
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 opinion. Individual judges may issue concurring 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
appeal is possible, but 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.
Criticisms
The International Court has been criticized with respect to
its rulings, its procedures, and its authority. As with criticisms of the
United Nations, many critics and opponents of the court refer to the general
authority assigned to the body by member states through its Charter, rather
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. ICJ rulings are legally binding on
states but not enforceable without their approval or compliance.
The International Court of Justice cannot hear the cases of
organizations, private enterprises, and individuals. Furthermore, UN agencies
are unable to raise a case except in the circumstance of a non-binding advisory
opinion. The national states are the only ones who are able to bring cases for
and act as defendants for these individuals. As a result, victims of war
crimes, crimes against humanity and minority groups may not have the support of
their national 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 collective jurisdiction.
The International Court does not enjoy a full separation of
powers, with permanent members of the Security Council being able to veto
enforcement of cases, even those to which they consented to be bound. Because
the jurisdiction does not have binding force itself, in many cases, the
instances of aggression are adjudicated by Security Council by adopting a
resolution, etc. There is, therefore, likelihood for the permanent member
states of Security Council to avoid the legal responsibility brought up by
International Court of Justice, as shown in the example of Nicaragua v. United States.
The court has been accused of judicial parsimony, with its
rulings tending to dismiss submissions of parties on jurisdictional grounds and
not resolving the underlying dispute between them.
The court has been accused of exhibiting a political bias,
with past research finding "strong
evidence" that judges at the ICJ "favor
the state that appoints them", "favor states whose wealth level is
close to that of the judges' own state", and "favor states whose political system is similar to that of the
judges' own state."
https://en.wikipedia.org/wiki/International_Court_of_Justice
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