International Court of Justice
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International Court of Justice
The International Court of Justice (ICJ) is the main judicial tribunal of the United Nations, to which all member states are parties. It is often informally referred to as the World Court. The ICJ was established in 1946 by the United Nations (Statute of the International Court of Justice [ICJ Statute], June 26, 1945, 59 Stat. 1055, 3 Bevans 1179). It replaced the former Permanent Court of International Justice, which had operated within The Hague, Netherlands, since 1922. Like its predecessor, the headquarters of the ICJ is also located in the Peace Palace at The Hague.
The function of the ICJ is to resolve disputes between sovereign states. Disputes may be placed before the court by parties upon conditions prescribed by the U.N. Security Council. No state, however, may be subject to the jurisdiction of the court without the state's consent. Consent may be given by express agreement at the time the dispute is presented to the court, by prior agreement to accept the jurisdiction of the court in particular categories of cases, or by treaty provisions with respect to disputes arising from matters covered by the treaty.
Article 36(2) of the court's statute, known as the Optional Clause, allows states to make a unilateral declaration recognizing "as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes."
Many states have accepted the court's jurisdiction under the Optional Clause. A few states have done so with certain restrictions. The United States, for instance, has invoked the so called self-judging reservation, or Connally Reservation. This reservation allows states to avoid the court's jurisdiction previously accepted under the Optional Clause if they decide not to respond to a particular suit. It is commonly exercised when a state determines that a particular dispute is of domestic rather than international character, and thus domestic jurisdiction applies. If a state invokes the self-judging reservation, another state may also invoke this reservation against that state, and thus a suit against the second state would be dismissed. This is called the rule of reciprocity, and stands for the principle that a state has to respond to a suit brought against it before the ICJ only if the state bringing the suit has also accepted the court's jurisdiction.
Under the ICJ Statute, the ICJ must decide cases in accordance with International Law. This means that the ICJ must apply (1) any international conventions and treaties; (2) international custom; (3) general principles recognized as law by civilized nations; and (4) judicial decisions and the teachings of highly qualified publicists of the various nations.
One common type of conflict presented to the ICJ is treaty interpretation. In these cases the ICJ is asked to resolve disagreements over the meaning and application of terms in treaties formed between two or more countries. Other cases range from nuclear testing and water boundary disputes to conflicts over the military presence of a foreign country.
The ICJ is made up of 15 jurists from different countries. No two judges at any given time may be from the same country. The court's composition is static but generally includes jurists from a variety of cultures.
Despite this diversity in structure, the ICJ has been criticized for favoring established powers. Under articles 3 and 9 of the ICJ Statute, the judges on the ICJ should represent "the main forms of civilization and … principal legal systems of the world." This definition suggests that the ICJ does not represent the interests of developing countries. Indeed, few Latin American countries have acquiesced to the jurisdiction of the ICJ. Conversely, most developed countries accept the compulsory jurisdiction of the ICJ.
The judgment of the ICJ is binding and (technically) cannot be appealed (arts. 59, 60) once the parties have consented to its jurisdiction and the court has rendered a decision. However, a state's failure to comply with the judgment violates the U.N. Charter, article 94(2). Noncompliance can be appealed to the U.N. Security Council, which may either make recommendations or authorize other measures by which the judgment shall be enforced. A decision by the Security Council to enforce compliance with a judgment rendered by the court is subject to the Veto power of permanent members, and thus depends on the members' willingness not only to resort to enforcement measures but also to support the original judgment.
The ICJ also may render advisory opinions on legal questions when requested to do so by the General Assembly, the Security Council, or other U.N. organs or agencies. For example, the World Health Organization and the General Assembly requested advisory opinions on the legality of Nuclear Weapons under international law. The World Court held hearings, in which 45 nations testified. It issued an advisory opinion in July 1996, which held that it was illegal for a nation to threaten nuclear war. The court is used infrequently, which suggests that most states prefer to handle their disputes by political means or by recourse to tribunals where the outcome may be more predictable or better controlled by the parties. Since 2000, some of the contentious cases before the ICJ included a property dispute between Liechtenstein and Germany; a territorial and maritime dispute between Nicaragua and Colombia; a land, island, and frontier dispute between El Salvador and the Honduras (Nicaragua intervening); and a 2003 case by Mexico against the United States over alleged violations of consular communications with—and access to—several Mexican nationals sentenced to death in various U.S. states for crimes committed within. A 1993 case filed by Bosnia against the former Yugoslavia for violating the Genocide Convention was still pending in 2003, as was a matter between the Republic of Congo and France over alleged crimes against humanity. Trials against individuals for alleged War Crimes against humanity or genocides involving Bosnia, Croatia, Kosovo, Serbia, and the former Yugoslavia were being handled by the International Criminal Tribunal for the former Yugoslavia, a separate U.N. tribunal.
The ICJ has been maligned for the inconsistency of its decisions and its lack of real enforcement power. But its ambitious mission to resolve disputes between sovereign nations makes it a valuable source of support for many countries in their political interaction with other countries.
International Court of Justice. Available online at <www.icjcij.org> (accessed June 3, 2003).Kelly, Barbara. 1992. "The International Court of Justice: Its Role in a New World Legal Order." Touro Journal of Transnational Law 3.
Lelewer, Joanne K. 1989."International Commercial Arbitration as a Model for Resolving Treaty Disputes." New York University Journal of International Law and Policy 21.
Levarda, Daniela. 1995. "A Comparative Study of U.S. and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery." Fordham International Law Journal 18.