International Court of Justice

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This is a paper about the background, structure and functions of the International Court of Justice.

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International Court of Justice

  1. 1. EUROPEAN SCHOOL OF LAW AND GOVERNANCE International Court of Justice Background, structure and functions Professor – Labinot Greicevci Student – Andi Belegu Prishtine 12.10.2013
  2. 2. This page was purposely left blank from the author Abstract Page 2
  3. 3. Since the International Court of Justice is one of the most important international juridical organizations worldwide it is very important to know its background, structure and functions. Founded back in 1945 the International Court of Justice served as a very important institution regulating the cases of disputes between states. The international arbitration will also cover a part of this essay, the international arbitration dates from the last years of the 18th century and has been developing until now. The basement of the international arbitration is in America where the first arbitral organization was found regarding to an agreement between United States of America and United Kingdom. Since then the international arbitration has held a very important role in the development of peace and standards of life in all member countries and nonmember countries of the United Nations. Since the creation of ICJ the judges dealt with so many cases, the very first case to be presented in front of ICJ was the dispute between United Kingdom and Albania the so called The Corfu Channel case. The structure of the International Court of Justice is very complicated yet very compact and has helped on finding solutions and arbitrations of different disputes between states. Separated in departments and chambers the ICJ does its own job investigating and considering the cases deposited by the countries. The International Court of Justice conducts of nine judges which excludes the ad hoc judges. The present president of ICJ is president judge Peter Tomka from Slovakia. The functions of the International Court of Justice are very important to the developments of world politics. ICJ has two main functions, it has the power to settle disputes between countries and it can give advisory opinions for developments in countries or international organizations. Table of Contents Page 3
  4. 4. Abstract ......................................................................................................................................................... 2 1. Introduction ........................................................................................................................................... 4 2. The background of the International Court of Justice ........................................................................... 5 3. Structure ................................................................................................................................................ 8 3.1. The Chambers of the International Court of Justice ..................................................................... 9 3.2. The committees of The International Court of Justice ................................................................ 10 3.3. The cases ..................................................................................................................................... 11 4. Functions of the International Court of Justice ................................................................................... 12 5. Conclusion .......................................................................................................................................... 14 6. Bibliography ....................................................................................................................................... 16 1. Introduction The background, the structure and the functions of the International Court of Justice is a very wide topic and a very complicated on. The complications come because it is related to many other organizations, states and parties. As the International Court of Justice is a very important United Nations institution, it is very hard to frame the work it does. This essay compiles some basic information and explanations about the main purposes and main jobs that the International Court of Justice has. This essay tends to give basic information about the structure, the background and the functions of the International Court of Justice. The main research question that this essay tends to give answer to is - What is the International Court of Justice ? The sub questions of the essay are - What are the functions of ICJ ? , What background does ICJ have ? Based on what structure does it work ? , and What were the precursory institutions of IJC?. This essay contains historical and juridical information linked to the development of the International Court of Justice. Here you can see the evolution of the International Court of Justice and other international arbitration institutions. This essay is structured in three main sections – The background of the ICJ, the structure and the functions of the International Court of Justice. Page 4
  5. 5. The essay assumes that The International Court of Justice has held a very important role protecting the peace between states with disputes. Supporting the thesis statement in this paper you can find further information about cases solved by this institution. 2. The background of the International Court of Justice The International Court of Justice is one of the largest juridical organisms of the world, as a part of the primary mechanism of the United Nation. Created in 1945 by the UN charter, the Court first began its work in 1946, based in the Peace Palace in The Hague, Netherlands. The main function of the Court is to provide solutions to international law problems of states in accordance with international law, these type of cases are called Contentious cases and at times may have the obligation to adjudicate which states have acted accordingly and what states may have violated the International Human Rights card these are usually known as Advisory proceedings. Expressed in Article 93 of the UN Charter, all 193 UN members are automatically parties to the Court's statute. The Court is also made up of five permanent member states; these are The United States of America, The United Kingdom, France, China & Russia. Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. Once a state is a party to the Court's statute, it is eligible to participate in cases before the Court. Although, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. As mentioned before the International Court of Justice was found back in 1945 right after the Second World War and the creation of the United Nations itself. Since then until 13th of November 2013 the Page 5
  6. 6. International Court of Justice dealt with and gave solutions to 154 cases. The very first case to be entering this institution was the so called Corfu Channel case between United Kingdom and Albania on 22nd of May 1947. (Bannelier , Christakis, Heathcote . (2012). The ICJ and the evolution of international law : the enduring impact of the "Corfu Channel" case – Routledge – New York p. 12) The background of the International Court of Justice is tightly linked with the international arbitration history. The international arbitrations dates back on 1794 from the so called the Jay Treaty between the United States of America and Great Britain. This treaty was a treaty of Amity, Commerce, and Navigation which gave the green light to the creation of three mixed commissions composed by Americans and British nationals in equal numbers. Also the Alabama Claims arbitration in 1872 was another important case which would lead to the need of the creation of an international juridical institution, also this was the first case where beside the countries with direct involvement to the case were called also countries without interest such as Italy, Brazil and Switzerland. (Wolf (2011) - The International Court of Justice : facts and documents about the history and work of the Court –Hague p. 23 ). The modern history of arbitration also knows some other international juridical organizations preceding the International Court of Justice. On 1899 the Russian Czar Nicholas the 2nd called for an international juridical institution which in history would be known as the Hague Peace Conferences on which beside the powerful countries also were called to participate small countries of Europe and Asia. Following this conference the International Court of Arbitration was created which started working on 1902. Afterwards on 1907 a second peace conference was called and involved countries from northern and southern America. The United States of America, The United Kingdom, and Germany came with a decision affirming the creation of the Permanent Court of International Justice which unfortunately could not be created during the conference. Anyway since the Permanent Court of International Justice didn’t see the light another arbitral institution was created the so called Permanent Court of Arbitration which was located in the Peace Palace in 1913 would serve as a court of solutions for many cases, the most known Page 6
  7. 7. ones were the case of Carthage and Manouba cases (1913) concerning the seizure of vessels, and of the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928) cases.( http://www.icjcij.org/court/index.php?p1=1&p2=1) The outbreak of the Second World War on September 1939 “isolated” the work of the Permanent Court of International Justice with only one judge in Hague and all the others in Geneva the work of the institution was blocked. Following this there was a need for another institution established in 1945 and named The International Court of Justice. The first judge president of the International Court of Justice was President Judge José Gustavo Guerrero (El Salvador) ex president of PCIJ. And the last/present one is president judge Peter Tomka from Slovakia. ( http://www.icj-cij.org/court/index.php?p1=1&p2=3) This was a very important step towards the organization and formalization of the cooperation between countries in the field of the international arbitration. The International Court of Justice for so many years would serve and still serves as one of the biggest chains of cooperation between countries, furthermore in some cases maybe more cooperative than United Nations itself. 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 2003 case by Mexico against the United States over alleged violations of consular communications etc. In conclusion of the section we can see that during their work these international institutions have given solutions to different problems, accordingly all the fore mentioned institutions played a very important role in the continuity of the juridical arbitral system worldwide. Knowing the political and historical periods on which these institutions were created these institutions played a great role also in supporting and protecting the world peace. An example of this even though it was created after the biggest war mankind knows (2nd World War) is the International Court of Justice which gave solutions to disputes worldwide and prevented countries from territory wars and such delicate problems. Page 7
  8. 8. 3. Structure The structure of the United Nations is very complex, so is the structure of the International Court of Justice. The ICJ works as a unique juridical body with a quorum of nine judges which excludes the ad hoc judges. The International Court of Justice is made up of fifteen judges elected to nine-year terms by the UN General Assembly and the UN Security Council, with five judges elected every three years. No two judges at any given time may be from 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. Since created, four of the five permanent members of the Security Council have always had a judge on the Court. (http://simple.wikipedia.org/wiki/International_Court_of_Justice#Structure) The other judges (meaning not the ones from 4 permanent countries) are elected and usually even though not mandatory come from countries which form the Security Council. Usually there are 3 judges from Africa, 2 judges from Latin America and the Caribbean, 2 from Asia, Western Europe and other states 5, and 2 from Eastern Europe. The court is not composed by country representatives so the candidates should not be government representatives. In cases of not fulfilling their obligations the judges can be suspended but this has still never happened since it should not be a one sided decision never did all the judges agree for a suspension. When deciding cases, the Court applies international law. Article 38 of the ICJ Statute provides that in arriving at its decisions the Court shall apply international conventions, international custom, and the Page 8
  9. 9. "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. The judgment of the ICJ is binding and cannot be appealed 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. 3.1. The Chambers of the International Court of Justice The court also has three types of chambers. Based on article 29 of the statute of the court it also creates separated chambers “With a view to the speedy dispatch of business, the Court shall form annually a chamber composed of five judges who, at the request of the parties, may hear and determine cases by summary procedure. In addition, two judges shall be selected for the purpose of replacing judges who find it impossible to sit (The Statute of The International Court of Justice- Article 29) .  Any chamber, comprising at least three judges, that the Court may form pursuant to Article 26, paragraph 1, of the Statute to deal with certain categories of cases, such as labor or communications “The Court may from time to time form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases; for example, labor cases and cases relating to transit and communications”( The Statute of The International Court of Justice- Article 26, point 1) it is important to mention also that this kind of chamber is not active by this time. Page 9
  10. 10.  Any chamber that the Court may form pursuant to Article 26, paragraph 2, of the Statute to deal with a particular case, after formally consulting the parties regarding the number of its members - and informally regarding their name - who will then sit in all phases of the case until its final conclusion, even if in the meantime they cease to be Members of the Court. The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.( The Statute of The International Court of Justice-Article 26, point 2) It is important to know that even though some of the chambers didn’t have opportunities to deal with cases they exist and are very crucial to the work of ICJ. From all these chambers the only chamber which dealt with cases is the ad hoc chamber which had 6 of them. Currently no ad hoc chamber is active. (http://www.icj-cij.org/court/index.php?p1=1&p2=4) 3.2. The committees of The International Court of Justice Under the administration of the International Court of Justice do also work the committees of the court. There are several committees working in the ICJ :  The Budgetary and administrative committee which decides for cases which deal with administrative matters. This committee is formed by the president of the court, the vicepresident, and four to five judges elected every three years.  The rules committee which advises the court about the rules, procedures and working methods on different matters. This committee was established in 1979. The committee is composed from 5 to 6 judges.  And the last but not the least is the Library committee, which does the gathering of the information and matters of acquisition of library for the court. Also this committee supervises the modernization of the services of the court. Page 10
  11. 11. 3.3. The cases According to the solution which should be given to different matters the International arbitral system or the International Court of Justice knows two different types of cases.  The Contentious Cases – ex. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) - Fixing of time-limits for the filing of the initial pleadings In this case the court must give jurisdictions according to the international law and should be respected by both parties.  Advisory proceedings – ex. Accordance with international law of the unilateral declaration of independence in respect of Kosovo In this case the court gives advisory decisions which may or may not be respected by the parties. The International Court of Justice every year issues an annual report on its job where shows the main cases dealt with. On the report of 2011-2012 the International Court of Justice claimed to have given solution to 15 different matters. Generally speaking, the ICJ has a very compact structure, which until now did not fail doing its job. The separation of powers within the institution has helped the functioning of this juridical institution for about 50 years of existence. The separation in chambers and departments has helped the ICJ to give very good decisions based on the investigations they did. The strong separations within the institutions have helped the institution to not suffer from double competences or similar problems. Page 11
  12. 12. 4. Functions of the International Court of Justice As an important international institution of the United Nations, ICJ’s main function is to regulate the relations between different states in cases of problems. Placed in the Peace Palace in Hague the ICJ stands for the most important juridical institution. The main function of ICJ is to resolve disputes between sovereign countries. Different disputes can be brought before the court by countries according to the rules given by the United Nations Security Council. Anyway no state can be brought in front the court without its own consent. (http://legal-dictionary.thefreedictionary.com/International+Court+of+Justice) The International Court of Justice has two main functions: I. To settle, in accordance with international law norms the disputes between countries. The disputes should be submitted mostly by member states of the United Nations, but there can also be submissions by non United Nations members in special conditions. This is to contentious where a particular solutions must be taken and must get empowered immediately. II. The other function is the power to give advisory opinions to on legal questions referred to it by authorized UN organs and specialized agencies What is worth doing discuss is also the political power that this Court has, as a part of the United Nations it has great power enforcing its decisis. The International Court of Justice has a great impact in the international policy, but it does not have supremacy on the sovereignty of the state. In fact one of its most important functions is to protect the countries and their integrity.( Sameh (2003) , The role of the ICJ as the principal Juridical Organ of the UN, P.H. Kluwer Law International pp.122-131 ) The main problem that the court has is that sometimes its decisions do not consist with the opinions of the great powers. There is where the problem begins because the court does not have a “police force” which would empower the laws. It may happen that a decision can be sent to the Security Council, the decision is vulnerable in front of the veto power of the great powers. Page 12
  13. 13. The court also has the power to enforce agreements between states, there are four kinds of agreement the court can enforce: I. Special agreements (compromise) - “This method is based on explicit consent and is, perhaps, the most effective basis for the Court's jurisdiction. It is effective because the parties concerned have a desire for the Court to resolve the dispute, and are thus more likely to comply with the Court's judgment. Parties will usually define the nature of the dispute between them and the legal questions on which they wish the Court to rule” (http://en.wikipedia.org/wiki/Jurisdiction_of_the_International_Court_of_Justice#Special_agree ment) II. Compromissory Clause (in treaties) - This method is used in international agreements and it is a special reservation to the main topic. Example –“ Article 32(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides for mediation and other dispute options, but also states that ”any such dispute which cannot be settled ... shall be referred, at the request of any one of the States Parties to the dispute, to the International Court of Justice for decision" ( http://en.wikipedia.org/wiki/Jurisdiction_of_the_International_Court_of_Justice#endnote_2) III. Special treaties –“ Some treaties or conventions in force confer jurisdiction on the Court. It has become a general international practice to include international agreements - both bilateral and multilateral - provisions, known as jurisdictional clauses, providing that disputes of a given class shall or may be submitted to one or more methods for the pacific settlement of disputes.”( http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=4) Page 13
  14. 14. IV. Implicit Consent (Forum prorogatum) – “Implied consent is consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and circumstances of a particular situation. The term is most commonly encountered in the context of United States drunk driving laws.”( Harris (2007) – An Introduction to Law , Cambridge University Press, Cambridge, United Kingdom p.69) We see here that the International Court of Justice covers a huge part of the international juridical system, and being one it has also a very big political impact. The power of this institution indirectly forces historical agreements which for a long time have been rejected by certain institutions or states. 5. Conclusion Concluding this essay the International Court of Justice is the most important institution of the United Nations; from some people it is called the Court of the World. It is one of the main subjects of the United Nations which is implicated in peace keeping between states. The background of the ICJ is very rich and contains a lot of institutions which leaded to the creation of this grand institution. During the essay you could obtain information about the background showed chronologically until the creation of the institution, than you could get informed about the structure of it the chambers, the committees, presidency and everything think linked to its structure. We saw that the International Court of Justice has contributed in the international arbitration and peacekeeping. With a very compact structure, with separated powers has helped the functioning the juridical system for about 50 years of existence. The separation in chambers and departments has helped the ICJ to give very good decisions based on the investigations did. The strong separations within the institutions have helped the institution to not suffer from double competences or similar problems. Page 14
  15. 15. Furthermore its functions have strongly contributed in the today’s world. This institution brought a brand new mentality to the politics between the states. Solving the disputes the International Court of Justice has contributed for a safer world and has made a world a better place to live. Page 15
  16. 16. 6. Bibliography Academic Sources Bannelier Karine , Christakis Theodore, Heathcote Sarah, The ICJ and the evolution of international law -The enduring impact of the "Corfu Channel" case – Routledge – New York 2012 Harris, Phil – An Introduction to Law , Cambridge University Press, Cambridge, United Kingdom 2007 M.AMR Sameh Mohammed, The role of the ICJ as the principal Juridical Organ of the UN, P.H. Kluwer Law International, 2003 Nijmegen Wolf - The International Court of Justice: facts and documents about the history and work of the Court –Hague 2011 Internet Sources http://legal-dictionary.thefreedictionary.com/ http://simple.wikipedia.org/ http://www.icj-cij.org/ Documents The Statute of The International Court of Justice Page 16
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