Introduction
The international court of justice is the judicial organ formed and mandated by the United Nations. The purpose of the court is to serve as the organ of judicial arbitration between countries that are members of the United Nations; it is also the organ that gives legal advice to the UN General Assembly and other organs and agencies that are allowed to submit their queries to it. It is the highest international court in the world [UNESCO]. The headquarters of the court is located in The Hague in the Netherlands and housed in the Peace Palace [UNESCO].
History
History of international arbitration
The Jay Treaty of 1794 marked the beginning of international arbitration as recorded in modern history; the treaty sought to quell the clashes between the United States and Britain [UNESCO]. The various nations thus realized the possibility and benefits of solving international disputes without necessarily going to war. A second important event that reiterated this phenomenon was the Alabama treaty negotiated in Geneva by again the United States and the United Kingdom.
These events set the stage for a formation of a permanent international court of arbitration; the Hague peace conference of 1899 went ahead to form map out the modalities of its formation. In 1900, the Permanent court of arbitration was formed and it started its operation in1902.
Various suggestions were made for the formation of an international judicial tribunal; statutes were drawn out to effect this. The effort resulted in the formation of the Permanent Court of International Justice in 1922 as the judicial body of the then league of nations after the first world war; the permanent venue of this body was located in The Hague where it sat for the first time on 15th February 1922. Between 1922 and 1940 the court ruled on 38 disputes between member states and gave 27 advisory opinions [UNESCO].
The court ceased to exists in 1946; between 1940 and 1946, the court did not have any activity as the Germans had invaded and occupied the Netherlands during the Second World War.
Modalities of the creation of the ICJ were concurrent with those of the creation of the united nation; the PCIJ met for the last time in October of 1945 and on the 31st of January 1946, all the judges of this body resigned paving way for the election of the first members of the ICJ at the first session of the UN general assembly on 5th February 1946. The PICJ officially ceased to exist on 18th April 1946, the same day as the League of Nations met the same fate.
History of the ICJ
The International Court of Justice held its first public sitting on the 18th of April, 1946. The court was set up in 1945 by the UN charter as a replacement for the Permanent Court of International Justice. Since its inception, the court has been sitting to hear disputes between countries regarding land frontiers, non-interference in international affairs, diplomatic relations and other similar disputes; a total of 63 judgments have been passed by this court. Additionally, the court has given 23 advisory opinions regarding various issues that have been brought before it.
Structure of the ICJ
The judges
These are elected by the UN general assembly from a list of persons proposed by the Permanent court of arbitration. Each of the fifteen judges is elected to serve a nine-year term with a provision allowing for re-election for two more possible terms [ICJ]. For purpose of maintaining a smooth flow of proceedings and effective succession, only one-third of the judges can retire at a time; therefore, elections are held after three years.
Of the fifteen judges, a country can only be represented by one judge; thus, at any one time, fifteen different nationalities produce one judge. A person is eligible for nomination if s/he is a lawyer, is known to have good knowledge of international law and be qualified to hold the highest judicial office in her/his home country at the time of appointment; the person must be shown to be of high moral character. The appointments are supposed to represent all forms of law practiced by the member states [ICJ].
A judge can be removed from office only after a unanimous vote by all the other members of the court. At the time of delivery of judgments, each judge may give his/her own judgment or the bench may opt to give a joint verdict. In regards to decisions and advisory opinions, the outcome is decided by a majority vote; in case the vote results in an equal division, the president’s vote then is crucial in acting as a tie-breaker.
Ad hoc judges
The statute of the court has a provision for the appointment of ad hoc judges to a bench sitting for a particular case by the countries involved in the dispute. Consequently, a dispute can be arbitrated by as many as seventeen judges. During the division of judgments the decisions of the two opposing judges who usually but not always vote in favor of their home countries cancel each other out. A country appoints an ad hoc judge if it feels its point of view may not be fully appreciated during the deliberations, or to provide a deeper local understanding of the situation of the country during the same [ICJ].
Chambers
The court usually sits at the full bench during its hearings. However, there are situations where the court may opt to sit as a chamber consisting of a fraction of the bench. Ad hoc chambers are more common than their Special category counterparts. The former consists of members who the parties agree will be acceptable for the deliberation of concern.
Arguments that the chambers diminish the capability of the court to deliver an international interpretation of the dispute have been countered by those suggesting that the chambers encourage more disputes to be presented before the court.
Composition
The current president of the court is Hisashi Owada from Japan while the vice-president is Peter Tomka of Slovakia. Other members are Shi Juiyong of China, Abdul G. Koroma of Sierra Leone, Awn Shawkat Al-Khasawneh of Jordan, Thomas Buergenthal of the United States, Bruno Simma of Germany, Mohamed Bennouna of Morroco, Leonid Skotnikov of Russia, Antônio Augusto Cançado Trindade of Brazil Abdulqawi Yusuf of Somalia and Christopher John Greenwood of the United Kingdom [ICJ].
The five members of the Security Council that is France, the US, UK, Russia and China have always had representatives among the members of the court since the 1960s; however, between 1967 and 1985, the peoples republic of China did not have a representative as it did not present a candidate. The most recent election was held on the 6th of November, 2008.
Jurisdiction
The jurisdiction of the ICJ can be defined by the nature of the proceeding that the court is deliberating on; that is whether it is a contentious issue or an advisory opinion. As provided by the UN charter, all the countries that are members of the UN are entitled to become parties in the ICJ. There are also provisions allowing non-members to become parties in the ICJ [Charney, 1987].
Adversarial proceedings
These are proceedings seeking to settle disputes between two parties. In this case, only states or countries can be recognized as parties in a dispute; individuals, organizations and even federal states are excluded from this privilege [Charney, 1987]. However, the state can bring a dispute to the court on behalf of an individual or an organization in the country.
Before the proceedings, the disputing states agree to submit to the ruling of the court. However, the parties can have their own agreements or declarations that give them the power not to submit to the rulings if they feel that these are not in the best interest of their state.
Advisory opinion
This service is extended only to authorized agencies and organizations under the United Nations; these send requests for advice regarding legal issues that the organization may be grappling with. Although the advisory opinions are strictly consultative and are not legally binding, provisions before the procedure may require a country to submit to the advice. Additionally, the authority of the ICJ and the manner of arrival to these opinions usually compel the parties involved in the proceedings to comply [Charney, 1987].
Enforcement of the rulings
Failure of a party in a dispute to comply with a binding verdict warrants their presentation before the Security Council for enforcement. There are however fundamental flaws in this process. First, all the five permanent members have veto power; therefore, if the ruling is against one of these members, then the enforcement of the power leaves no other avenue of enforcement [Charney, 1987].
Secondly, if the Security Council was to refuse to enforce a ruling of the ICJ, then there is no other avenue of enforcing such a ruling.
The law enforced by the ICJ
The ICJ draws its ruling from various sources including; international customs and conventions, principles of law practiced in civilized countries, academic writing and previous rulings. Although the court is not bound by its previous decisions, all the subsequent rulings have been shown not to depart radically from the precedent. Additionally, a party is only bound by a verdict on that particular dispute and not any other.
Procedure
- The complaint: the party lodging the case will argue for the merit of the case to be heard before the court by filing a written memorial; if the respondent doesn’t dispute the merit then it files its own memorial thus setting the stage for arbitration. However, if the merit is in dispute, the respondent lodges preliminary objections [Charney, 1987].
- Preliminary objections: this is the refusal to submit to the ruling of the court based on the merit of the case. All the objections have to be ruled upon in a separate hearing to show the admissibility of the case to the court; if the case is admitted, then the respondent is required to file a memorial addressing the gist of the case [Charney, 1987]. The parties then present their written arguments paving way for public hearings.
- The verdict: is issued at the end of the deliberations; the verdict is determined by the majority opinion although each judge is entitled to give a separate or a dissenting opinion. None of the parties have the privilege of appeal after this.
Conclusion
Merits and Criticisms
The ICJ no doubt holds a privileged position as the authority mandated with solving the disputes among countries that arise from time to time through peaceful means. The organization has contributed to the relative peace in the world that would be otherwise chaotic if each country would pursue its interests through aggressive means.
On the other hand, the ICJ has been criticized for some shortfalls and gaps in the enforcement of its mandate. The exclusion of individuals and organizations from their admission into the court as parties in the dispute has restricted the mandate to disputes whose outcome is in the interests of states. Additionally, the court’s verdicts are subjugated to the veto power of the permanent members of the Security Council.
The provision allowing a party to be bound by a verdict only after its agreement gives a loophole for such a state to escape international arbitration [Charney, 1987]. Future efforts should endeavor to close these gaps so as to allow the court to carry out its important mandate of peaceful resolution of international disputes.
References
Charney, Jonathan I.: (1987): Compromissory Clauses and the Jurisdiction of the International Court of Justice. Journal article by American Journal of International Law, Vol. 81, 1987
The ICJ: Current Members.
The ICJ: Judges ad hoc.
The ICJ: The Court.
UNESCO: (Not dated): Guide to Archives of International Organizations; ICJ: Web.