International Court of Justice

[Sana Aly]

International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). The idea for the creation of an international court to arbitrate international disputes first arose during the various conferences that produced the Hague Conventions in the late 19th and early 20th centuries. The body subsequently established, the Permanent Court of Arbitration, was the precursor of the Permanent Court of International Justice (PCIJ), which was established by the League of Nations. From 1921 to 1939 the PCIJ issued more than 30 decisions and delivered nearly as many advisory opinions, though none were related to the issues that threatened to engulf Europe in a second world war in 20 years. The ICJ was established in 1945 by the San Francisco Conference, which also created the UN. All members of the UN are parties to the statute of the ICJ, and nonmembers may also become parties. The court’s inaugural sitting was in 1946.
The ICJ is a continuing and autonomous body that is permanently in session. It consists of 15 judges—no two of whom may be nationals of the same state—who are elected to nine-year terms by majority votes in the UN General Assembly and the Security Council. The judges, one-third of whom are elected every three years, are eligible for reelection. The judges elect their own president and vice president, each of whom serves a three-year term, and can appoint administrative personnel as necessary.
The seat of the ICJ is at The Hague, but sessions may be held elsewhere when the court considers it desirable to do so. The official languages of the court are French and English.
The court’s primary function is to pass judgment upon disputes between sovereign states. Only states may be parties in cases before the court, and no state can be sued before the World Court unless it consents to such an action. Under article 36 of the court’s statute, any state may consent to the court’s compulsory jurisdiction in advance by filing a declaration to that effect with the UN secretary-general, and by 2000 more than 60 countries had issued such a declaration. The declaration (the “optional clause”) may be made unconditionally, or it may be made on condition of reciprocity on the part of other states or for a certain time. In proceedings before the court, written and oral arguments are presented, and the court may hear witnesses and appoint commissions of experts to make investigations and reports when necessary.
Cases before the ICJ are resolved in one of three ways: (1) they can be settled by the parties at any time during the proceedings; (2) a state can discontinue the proceedings and withdraw at any point; or (3) the court can deliver a verdict. The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognized by civilized nations, judicial decisions, and writings of the most highly qualified experts on international law. Although the judges deliberate in secret, their verdicts—rendered in both English and French—are delivered in open court. Any judge who does not agree in whole or in part with the court’s decision may file a separate opinion, and few decisions represent the unanimous opinion of the judges. The court’s judgment is final and without appeal.
The court’s decisions, numbering approximately 70 from 1946 to 2000, are binding on the parties and have been concerned with issues such as land and maritime boundaries, territorial sovereignty, diplomatic relations, the right of asylum, nationality, and economic rights. The ICJ is also empowered to give advisory opinions on legal questions at the request of other organs of the UN and its specialized agencies when authorized to do so by the General Assembly. Although advisory opinions—numbering about 25 over its first 50 years—are not binding and are only consultative, they are considered important. They have been concerned with issues such as admission to the UN, the expenses of UN operations, and the territorial status of South West Africa (Namibia) and Western Sahara. The court may also be granted jurisdiction over certain cases by treaty or convention. By the late 1990s approximately 400 bilateral and multilateral treaties deposited at the UN conferred compulsory jurisdiction to the ICJ.
The court itself has no powers of enforcement, but according to article 94 of the Charter of the United Nations:
If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Few state parties to a case before the ICJ (or before its predecessor, the PCIJ) have failed to carry out the court’s decisions. Two exceptions are Albania, which failed to pay £843,947 in damages to the United Kingdom in the Corfu Channel case (1949), and the United States, which refused to pay reparations to the Sandinista government of Nicaragua (1986). The United States also withdrew its declaration of compulsory jurisdiction and blocked Nicaragua’s appeal to the UN Security Council. In general, however, enforcement is made possible because the court’s decisions, though few in number, are viewed as legitimate by the international community.