The International Court of Justice informally referred as the “world court” is the main judicial tribunal of the United Nations and is majorly responsible for resolution of public international law disputes. The United Nations established the Court in 1945, replacing the Permanent Court of International Justice, which was operating in Netherlands within the Hague. However, operations of the Court did no commence until after April 1946. Headquarters for the International Court of Justice remained at the Peace Palace at the Hague. It is different from other major organs of the United Nations in that it is the only institution, headquarters of which are based not in New York. Its establishment represented an end of a long development of ways of dealing with international disputes, some of which date back to classical times (Wolf & Ruiter, 2011). The Court settles legal disputes with regard to international law. The disputes in question commonly entail those between nations in conflict. Article 33 of the United Nations Charter lists different ways of settling disputes between states. These methods include conciliation, arbitration, enquiry, judicial settlement, negotiation, and resort to regional arrangements or agencies.
Negotiation, on the other hand, involves sitting down at the same table to iron out differences between states and consequently reaching an agreement fair to all parties involved. Some of these methods entail appealing to third parties to assist in resolution of the disputes. For instance, mediation places disputing parties in a position where they can resolve their own problems with the help of the intervention of the third party. Arbitration entails submitting the dispute to an impartial third party, which makes a decision or an award, which is abiding to parties involved in the dispute. This is the principle under which the judicial settlement works as applied by the International Court of Justice. However, the Court is subject to stricter rules and laws than arbitral tribunal. The International Court of Justice also provides advice, particularly legal one to other organs of the United Nations such as the World Health Organization. The Court uses two official languages: French and English. It consists of fifteen judges, all of whom are elected to office and serve for nine years each. The United Nations General Assembly together with the Security Council has a task of electing the judges. Five permanent members each select a judge who sits on the bench. The geopolitical rule is upheld and it requires that no country should provide more than one judge in a given tenure. In the event that a judge dies, resigns, or becomes incapable of completing his or her tenure for other reasons, the mother country of the judge provides a replacement. The Statute of International Court of Justice oversees and controls functioning of the Court. In case there is a need to amend the statute, a two thirds majority vote of the United Nations General Assembly is mandatory. The Court is currently presided over by Peter Tomka. The vice president is Bernardo Sepulveda Amor.
Since 1946, the International Court of Justice has been able to deliver 63 judgments on an array of disputes. The number of cases dealt with remains limited due to the laxity of states to take issues affecting them to the Court. Most states saw the Court as a public gimmick to bring the evasive equity in the world of diplomacy and inter-state relations. It was viewed as a biased entity, especially by the developing nations, arguing that its rulings favored more developed countries. Nevertheless, the past four decades have witnessed an encouraging upsurge in the number of cases handled by the Court. This point to the fact that states’ awareness about the need for peace and harmony has increased tremendously. Their faith in performance of the Court has also seen a new revolution by putting a lot of their trust and hope in the institution to deal with the matters affecting them. Disputes concerning maritime boundaries and land frontiers, non-interference of the internal affairs of a state, and hostage taking have been handled by the Court so far. Other cases in which the Court has made rulings include disputes involving diplomatic relations, right of passage, right of asylum, territorial sovereignty, and economic rights (Lissitzyn, 2006). Should a country or a region fail to adhere to rulings made by the Court, the Court has the mandate to force action by the affected state or region. The Court does this with the help of the United Nations Security Council. The authority to make and take this step is provided in the United Nations Charter. The Court has also given 23 advisory opinions regarding admission and membership in the United Nations, territorial status of Namibia, and Western Sahara, and compensation for injuries sustained in the service of the United Nations among others. Most of the advisory opinions are aimed at other organs of the United Nations.
The Roles of the Court
The main function of the Court is to resolve conflicts and wrangles between sovereign states. Conflicts brought before the Court depend on the conditions set by the United Nations Security Council. The most prevalent conflict relates to border disputes. In the developing nations border disputes have been a major cause of war and bloodshed. Nations seeking to guard their mineral resources or pieces of land that lie along borders undertake unorthodox ways to achieve their objectives. This situation calls upon the mediation of the International Criminal Court, which comes in to avert further bloodshed and disagreement and tries to reach an amicable consensus. However, no sovereign state will be subject to the jurisdiction of the International Court of Justice without the consent of the state. So far, about 193 nations have confirmed membership. In fact, all nations that have become members of the United Nations are bound by the agreement. There are five nations, which are permanent members though. They include the United States of America, the United Kingdom, France, Germany, and the People’s Republic of China. These permanent members are guaranteed representation in the fifteen-member bench of judges with every one of them entitled to a single spot. The role of the Court is to fulfill the purpose of the United Nations to bring about settlement and adjustment of international disputes that might result in breaching of peace by peaceful means and in compliance with the international law and principles of justice. This primary function is based on the Article 2 of the UN Charter, which states that all member states will resolve their international conflicts through peaceful means that will not endanger international peace and security in any way (Wolf & Ruiter, 2011). This is to ensure peaceful coexistence between people from all nations across the globe.
In the event that any state fails to comply with the rulings of the Court, the Court has the mandate of enforcing its rule with assistance of the United Nations Security Council. Neighboring nations, which support the ruling may also contribute by sending their forces to the state to ensure the law is adhered to. However, this is subject to approval by the United Nations General Assembly, whose final say determines whether a state is coerced into adhering to the ruling or not. Encouragingly, the likelihood of a state going against a Court’s agreement is minimal. Before the proceedings, the states undergo a rigorous checking and counterchecking to confirm adherence and compliance to the law. This effectively cuts down the chances of a state failing to honor its end of the deal. Nevertheless, if the state does not honor the ruling, the case may be taken back to the Court, upon which the Court seeks the assistance of the United Nations Security Council.
How the International Court of Justice Works
The International Court of Justice handles cases of two types. The main subject of concern, and the most significant reason behind the existence of institution of the Court, are legal conflicts between states (contentious cases). The other type of cases handled, which needs advisory opinions from specialized agencies and organs of the United Nations, has a limited turnover according to statistics.
Only countries that have United Nations membership, states that became parties to the statute of courts, or the states that have accepted the jurisdiction of the Court under specific condition can become involved in these cases. The Court handles disputes for states that accept its jurisdiction in either way: through a decision to direct the conflict to the Court; through jurisdictional clause when parties of a certain treaty state that in the event of a dispute in the interpretation of the treaty they would refer the case to the Court; “through the reciprocal effect of declarations” of the states, where each state accepts Court’s jurisdiction as compulsory should there arise any conflict with other nation that makes the same declaration (Mohammed, 2003). In all three situations, it becomes clear that for the International Court of Justice to engage in any hearing of a conflict, it has to have direct jurisdiction not just over one state, but over both of them. The jurisdiction gives Court the power to exercise its authority fully.
States do not have representatives permanently accredited to International Court of Justice. Rather, the communication with the Court happens through foreign affairs ministries or their ambassadors in the Netherlands. Parties that are involved in a hearing in the Court are represented by an agent, whose role, rights, obligations, and responsibilities are similar to those of a solicitor to a national court. The agent receives communications and correspondences on issues of the case from the registrar and submits all duly signed pleadings and proceedings to the registrar too. In public proceedings or hearings, the agent presents arguments and lodges submissions for the government he or she represents. Sometimes, agents are assisted by deputy agents, assistant agents, or co-agents, and they always have advocates who help them deliver oral arguments and prepare the proceedings. A state that presents its grievance to the International Criminal Court is allowed to present its own judges. These are commonly referred to as ad hoc judges. The belief that such judges have a better understanding of the woes bedeviling the state warrants this permission. A state can present as many judges as it can, more than ten if possible. The court rules in two ways. Out of the bench of judges hearing the case, each judge can give his or her opinion and make a ruling. This is especially true in instances where rulings of the judges vary or the reasons for which they made the rulings are not similar. Alternatively, the whole bench can settle down on a ruling and make a unanimous agreement regarding the subject at hand. A case can be subject to the attention of the full bench of judges (fifteen in total). In some instances, a smaller chamber presides over the hearing and ruling of a case. The chamber may constitute three to five judges.
Proceedings in the International Court of Justice maybe instituted through two ways. The first way is by means of a special agreement notification, which is bilateral in nature among two states. Either state or two of them can lodge a complaint with the Court. In this situation, there is no applicant or respondent state. Therefore, in the publications of the Court, the names of states are separated by a stroke for instance: Benin/Niger. The second way of instituting a proceeding is through an application that is unilateral in nature. In this method, the state submits an application against another state. The applicant state has to give the basis under which it claims that the Court has jurisdiction, and has to concisely state the grounds and the facts it relies upon in its claims. These two ways present the Court with an easy time. Resolution of disputes becomes easy as the states bring the cases to the Court out of their own volition. No force or coercion is exercised in any way. The wrangling states can, therefore, be more cooperative in terms of providing relevant information and obeying the ruling of the Court to the letter.
The receipt of special application or agreement by the Registrar marks the start of the proceedings. Contentious proceedings comprise of a written phase, where the parties to the case file and exchange detailed statements of law and facts that they rely upon. Then there is an oral phase where public hearings take place with the agents and counsels addressing the Court (Lissitzyn, 2006). Since official languages of the Court are French and English, anything said or written in one of these languages has to be translated to the other. Written pleadings are released to the public and the press after oral proceedings begin and only in the event that parties do not have any objections. Presenting written pleadings to the media and the public constitutes a sign of good will. Nevertheless, the parties fall under no obligation to make the proceedings public and may as well keep it a secret, away from public and media scrutiny.
After the end of oral proceedings, the Court deliberates and later presents its final judgment in a public sitting. Presented judgment is binding to both parties and comes without an appeal option. Member states of the United Nations accept to comply with all the decisions made by the Court in all cases where the states are parties by signing the charter. Regardless of whether a ruling favors a state or not, the state is expected to uphold the law and obey the ruling made by the Court. Since parties consent to the jurisdiction of the Court way before the delivery of the judgment, it is hard for the states to fail to implement the decisions made by the Court. In the event that one party feels that the other state failed to undertake its obligation as indicated in the judgment, then such a party can present this concern to the United Nations Security Council, which has the power to give recommendations on what measures should be taken to make the parties effect the ruling.
The above procedure is the standard procedure followed in normal cases, but there are matters that influence the proceedings. One of the most frequent cases is the preliminary objections aimed at preventing the Court from giving its ruling on the merit of the case, where the respondent state may, for instance, contend that the court does not have jurisdiction or that the application is not admissible. If the Court does not have jurisdiction over a case or conflict, it means that the conflict in question does not lie within the power of the Court as stated in the Charter. Admissibility has to do with the relevance of the case and its need for arbitration or hearing. The applicant state may apply for interim measures if it feels that the application is “in immediate danger”. The other case that may affect the proceedings is where the respondent state fails to appear in court since it rejects the jurisdiction of the Court or due to other reason. This may only affect proceedings but is unlikely to influence the hearing of the case, particularly after the Court has justified jurisdiction. The Statute provides that the failure by a state to appear in Court cannot stop proceedings from continuing, but the Court “must satisfy itself that it has jurisdiction” before starting the proceedings. The other case is where participants of different proceedings file the same arguments against one respondent on the same issue. In such a case, the Court may order a joint hearing in which court proceedings occur concurrently. Rulings are, however, made separately since the extent of breach of the law of association may differ marginally between the two parties presenting their cases.
The Court discharges its responsibilities as a fully pledged court, but it may set up ad hoc chambers to deal with the specific cases at the request of the parties in a case. The chambers, usually made up of fewer judges than the full bench, are tasked with the same responsibility of conducting hearings and making rulings at the end of the hearing. The Court elects a Chamber of Summary every year as it is written in the Statute. The Court applies the following sources of law: international custom, judicial decisions, international conventions and treaties, the general principles of law and teachings of “highly qualified publicists”. A conclusion can be made at any phase either by settlement between the parties or discontinuance. In the discontinuance, the state making an application may at any stage inform the Court that it will not continue with the proceedings. The reason for such act may be official or not. An applicant may discontinue if the party feels that no tangible and fair ruling can be made or even to avoid the hustle and bustle that accompanies court cases and proceedings. In the case of settlement, the parties involved in the case can decide that they came to a conclusion to withdraw the case. Settlement more often than not comes as an alternative. It can be reached by signing a pact or deal or through monetary settlement. States may resolve to avert grueling court procedures, the glaring media attention and/or the taint of name that comes with long-standing court battles. Further, the Court goes ahead to remove the case from its list.
The International Court of Justice offers advisory opinions to governmental international organizations alone. These organizations should have a relation with the United Nations directly or indirectly. This is because only states have the capacity of appearing before the Court, and as such the governmental international organizations cannot appear before the Court on their own capacity (Mohammed, 2003). The Court receives requests for advisory opinions and decides the state or organization best suited to provide the advice sought for. Though based on controversial proceedings, the procedure for this function has unique, distinctive features that result from the nature and purpose of the function. Advisory proceedings start with the writing of a formal request to the Registrar by the secretary-general, director of the entity requesting for the opinion or by the secretary-general of the United Nations. The Court holds onto all oral and written proceedings so that it is fully informed on the subject matter of the question submitted before it.
Documented proceedings may also serve as points of reference or even evidence in some cases. Several days after receiving the field request, the International Court of Justice makes a list of the international organizations or states that are likely to furnish the court with information on the request. The states and organizations allowed to take part in the proceeding submit written statements and comments if the Court deems necessary. The Court reveals such statements to the public when oral proceedings start in case the courts find such proceedings necessary (International Court of Justice, 2000). Unlike in judgments and with exceptions of rare occasions when courts stipulate beforehand that they will be binding, the Court’s advisory opinions are not binding. Requesting organization, agency, or organ is free to make a decision on the effect to give the opinions. The opinions are regarded more as consultative and are in no way meant to bring about a settlement of dispute. They bear authority and remain non-binding. Nevertheless, they are widely accepted and revered as ways of improving a wanting legal situation. Though such opinions do not carry a binding effect, they carry a great moral authority and legal weight. The opinions often act as tools of preventive diplomacy and contain peace-making virtues. The opinions also contribute to the development, advancement, and elucidation of international law, which in turn strengthens peaceful relations among states.
Difference between the International Court of Justice and Other Courts
The ICJ is different from other international and national courts in many ways. First and foremost, the International Court of Justice handles contentious issues between states and individuals do not have a direct access to the courts. This means that an individual cannot bring any case to the Court as a person. It does not make rulings on individual criminal responsibility but rather deals with nations or regions. Most other types of courts, such as the International Criminal Court, determine cases of criminal responsibility. The International Court of Justice specifically deals with matters affecting states. States can also present cases pitting their citizens against other states as a sign of solidarity with the citizen. Since it is the state that presents the case to the International Court of Justice, the matter is considered as a state affair rather than a private one. This reflects the state-centered view of international law existing when drawing up the Statute of ICJ’s predecessor after the First World War. Unlike other courts, like the International Criminal Court, which deals with specific issues, the International Court of Justice deals with general matters like maritime disputes, boundary disputes, sovereignty issues, human rights, natural resources, treaty violations, and treaty interpretations.
The Court is also different from other courts because the Court does not offer room for making appeals. The decisions by the Court are binding to the parties involved and the most a party can get is interpretation of the decision but not an appeal. The decision of judges is considered final and cannot be challenged. Other courts offer the option of appealing if one party is not satisfied with the decisions of the Court. The states that ratify the UN Charter automatically become parties to the International Justice Statute under Article 93 (International Court of Justice, 2000). Non-member states may also become parties of the Court by ratifying the ICJ statute. Each state must give consent to all contentious issues through explicit declaration, agreement, or treaty clause. This makes it much easier for states to enforce the decisions of the courts. Unlike the International Criminal Court that can initiate its own prosecutions, the International Criminal Court cannot initiate its own proceedings. Cases are referred to the courts either by the United Nations, individual states, or by international organizations, which require legal mediation or advisory proceeding.
The International Court of Justice has served a noble course that cannot be underestimated. Despite the setbacks and the lack of faith in its mandate in its infancy, it has remained in the scene and continued to be a force to reckon with in dispute settlement and legal advice and redress. Over the years, it has stamped its authority and spearheaded the amicable settlement of numerous public international law disputes. This fact has enabled it to earn trust and faith of many nations, which have so far taken up to submit their complaints to the Court. Indeed, many diplomatic duties would have culminated to full blown tragedies were it not for the involvement of the International Court of Justice (Wolf 2011). It has also been revelatory in providing legal advice to organizations and agencies, especially those related to the United Nations.