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International Court of Justice

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   CAPTION: International Court of Justice

   Peace Palace, seat of the ICJ.
    Org type:   Principal Organ
    Acronyms:   ICJ, CIJ
      Head:     President of the ICJ

                       Dame Rosalyn Higgins
                       Flag of United Kingdom  United Kingdom

     Status:    Active
   Established: 1945
     Website:   www.icj-cij.org
    Wikimedia
   Commons:     Commons:Category:ICJ-CJI ICJ-CJI
     Portal:    Portal:United Nations United Nations Portal

   The International Court of Justice (known colloquially as the World
   Court or ICJ; French: Cour internationale de Justice) is the principal
   judicial organ of the United Nations. Its seat is in the Peace Palace
   at The Hague, Netherlands. Established in 1945 by the Charter of the
   United Nations, 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 ICJ should not be confused with the International Criminal Court or
   a court exercising jurisdiction under Belgium's War Crimes Law, both of
   which also potentially have "global" jurisdiction. English and French
   are its two official languages.

   The Court's workload is characterised by a wide range of judicial
   activity. Its main functions are to settle legal disputes submitted to
   it by states and to give advisory opinions on legal questions submitted
   to it by duly authorised international organs and agencies. The number
   of decisions made by the ICJ has been relatively small, but there has
   clearly been an increased willingness to use the Court since the 1980s,
   especially among developing countries, although the USA withdrew from
   compulsory jurisdiction in 1986, meaning it accepts the court's
   jurisdiction on only a case-to-case basis.

Composition

   Public hearing at the ICJ.
   Enlarge
   Public hearing at the ICJ.

   The ICJ is composed of 15 permanent judges elected 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 4-12 of the ICJ statute. Judges
   serve for nine year terms and may be re-elected. Elections take place
   every three years, with one-third of judges retiring 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 to 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. The rule on a geopolitical
   composition of the bench exists despite the fact that there is no
   provision for it in the Statute of the ICJ.

   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. A judge can be dismissed by only a unanimous vote of other
   members of the Court. Despite these provisions, the independence of ICJ
   judges has been questioned. For example, during the Nicaragua Case, the
   USA issued a communiqué suggesting that it could not present sensitive
   material to the Court because of the presence of judges from Eastern
   bloc states.

   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. Judges may also
   deliver separate dissenting opinions.

Ad hoc judges

   Article 31 of the 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 choice (usually of
   their nationality), if a judge of their nationality is not already on
   the bench. Ad hoc judges participate fully in the case and the
   deliberations, along with the permanent bench. Thus, it 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 to the Court's jurisdiction.
   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 a 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
   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). 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.
   Chambers judgments may have less authority than full Court judgments,
   or may 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.

Current composition

   As of 6 February 2006 the composition of the court is as follows:
     * President: Dame Rosalyn Higgins ( Flag of United Kingdom  United
       Kingdom)
     * Vice-President: Awn Shawkat Al-Khasawneh ( Flag of Jordan  Jordan)

   In addition to the President and Vice-President, the ICJ judges are:
     * Raymond Ranjeva ( Flag of Madagascar  Madagascar)
     * Shi Jiuyong ( Flag of People's Republic of China  China)
     * Abdul G. Koroma ( Flag of Sierra Leone  Sierra Leone)
     * Gonzalo Parra Aranguren ( Flag of Venezuela  Venezuela)
     * Thomas Buergenthal ( Flag of United States  United States)
     * Hisashi Owada ( Flag of Japan  Japan)
     * Bruno Simma ( Flag of Germany  Germany)
     * Peter Tomka ( Flag of Slovakia  Slovakia)
     * Ronny Abraham ( Flag of France  France)
     * Sir Kenneth Keith ( Flag of New Zealand  New Zealand)
     * Bernardo Sepúlveda Amor ( Flag of Mexico  Mexico)
     * Mohamed Bennouna ( Flag of Morocco  Morocco)
     * Leonid Skotnikov ( Flag of Russia  Russia)

Jurisdiction

   As stated in Article 93 of the UN Charter, all 192 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. For example, before becoming member nations, Switzerland
   used this procedure in 1948 to become a party; Nauru also became a
   party in 1988. 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 two types of ICJ cases: contentious issues and
   advisory opinions.

Contentious issues

   In contentious cases, 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, parts of a
   federal state, 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.

   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. It is, perhaps, the most effective basis for the
       Court's jurisdiction 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.

     * 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. 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 USA based on a compromissory
       clause contained in the Vienna Convention on Diplomatic Relations,
       nor did it 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.

     * Third, Article 36(2) allows states to make optional clause
       declarations accepting the Court's jurisdiction. The tag of
       "compulsory" which is sometimes placed on Article 36(2)
       jurisdiction is misleading since declarations by states are
       voluntary. Furthermore, many declarations contain reservations,
       such as exclusion from jurisdiction certain types of disputes
       ("ratione materia"). The principle of reciprocity may further limit
       jurisdiction. As of October 2006, sixty-seven states had a
       declaration in force. Out of the Security Council members, only the
       United Kingdom has a declaration. In the Court's early years, most
       declarations were made by industrialised countries. Since the
       Nicaragua Case, declarations made by developing countries have
       increased, reflecting a growing confidence in the Court since the
       1980s. Industrialised countries however have sometimes increased
       exclusions or removed their declarations in recent years. 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.

     * Finally, 36(5) provides for jurisdiction on the basis of
       declarations made under the Permanent Court of International
       Justice's statute. Article 37 of the ICJ's statute similarly
       transfers jurisdiction under any compromissory clause in a treaty
       that gave jurisdiction to the PCIJ.

     * In addition, the Court may have jurisdiction on the basis of tacit
       consent ( forum prorogatum). In the absence of clear jurisdiction
       under Article 36, jurisdiction will be established if the
       respondent accepts its jurisdiction explicitly or simply pleads on
       the merits. The notion arose in the Corfu Channel Case (UK v
       Albania) in which it was held that letter from Albania stating that
       it submitted to the jurisdiction of the ICJ was sufficient to grant
       the court jurisdiction.

Advisory opinion

   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. In principle, the Court's advisory
   opinions are consultative in character, though they are also
   influential and widely respected. Whilst certain instruments or
   regulations can provide in advance that the advisory opinion shall be
   specifically binding on particular agencies or states, they are
   inherently non-binding under the Statute of the Court.

   Advisory Opinions have often been controversial, either because the
   questions asked are controversial, or because the case was pursued as a
   "backdoor" way of bringing what is really a contentious case before the
   Court.

   Examples of cases include:
     * Advisory Opinion of the International Court of Justice on the
       Israeli West Bank Barrier.
     * An advisory opinion on the legality of the use (or threat to use)
       nuclear weapons.
     * The opinion on Western Sahara, issued in 1975.

The 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 will be vetoed.
   This occurred, for example, after the Nicaragua case, when Nicaragua
   brought the issue of the USA's non-compliance 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.

   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 to protect its rights, which, it
   alleged, were being infringed by the threat of economic sanctions by
   the UK and United States. The problem was that these sanctions had been
   authorised 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 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, where 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, in Nicaragua v. United States the United States of America
   had previously accepted the Court's compulsory jurisdiction upon its
   creation in 1946 but withdrew its acceptance following the Court's
   judgment in 1984 that called on the United States 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 reparations (see note 2).

   Examples of contentious cases include:
     * A complaint by the United States in 1980 that Iran was detaining
       American diplomats in Tehran in violation of international law.
     * A dispute between Tunisia and Libya over the delimitation of the
       continental shelf between them.
     * A dispute over the course of the maritime boundary dividing the
       U.S. and Canada in the Gulf of Maine area.
     * A complaint by the Federal Republic of Yugoslavia against the
       member states of the North Atlantic Treaty Organisation regarding
       their actions in the Kosovo War. This was denied on 15 December
       2004 due to lack of jurisdiction, because the FRY was not a party
       to the ICJ statute at the time it made the application.

   Generally, the Court has been most successful resolving border
   delineation and the use of oceans and waterways. While the Court has,
   in some instances, resolved claims by one State espoused on behalf of
   its nationals, the Court has generally refrained from hearing
   contentious cases that are political in nature, due in part to its lack
   of enforcement mechanism and its lack of compulsory jurisdiction. The
   Court has generally found it did not have jurisdiction to hear cases
   involving the use of force.

Law applied

   When deciding cases, the Court applies international law as summarised
   in Article 38. Article 38 of the ICJ Statute 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 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. 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"), granting the ICJ
   the freedom to make an equitable decision based on what is fair under
   the circumstances. The Court operating under ex aequo et bono would act
   in some ways similar to a mediator. However, this provision has not
   been used in the Court's history.

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
   (as amended on 29 September 2005).

   Cases before the ICJ will follow a standard pattern. The case is lodged
   by the applicant who 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 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. These objections must be ruled upon by the Court before it can
   proceed on the merits. 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; 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.

   If the Court decides it has jurisdiction and the case is admissible,
   the respondent will then be required to file a Memorial addressing the
   merits of the applicant's claim. Once all written arguments are filed,
   the Court will hold a public hearing on the merits.

   Once a case has been filed, any party (but 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 domestic
   (US) 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 granting provisional measures.

Applications to intervene

   In cases where 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 - the first
   successful application occurred in 1990.

   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 appeal is possible.

Criticisms

   Criticisms of the International Court range from its rulings, its
   procedures, to its authority. As with United Nations criticisms as a
   whole, many of these criticisms refer more to the authority assigned to
   the body by member states through its charter rather than to problems
   with the specific composition of judges or their rulings.
     * "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 adjudicated by the Security Council.
     * Organizations, private enterprises, and individuals cannot have
       their cases taken to 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 does 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.

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