aka "World Court"

On the occasion of the 40th anniversary of the International Court of Justice, on March 1, 1962, the then-President Winiarsky described the international usefulness of the Court:

"The settlement of disputes between states by arbitration has its origins in antiquity, and while it rendered great services and in particular contributed to defining the rules of international law, it is in fact only with the establishment of the Permanent Court as a body of independent judges ready at all times to perform their task that the institution of international justice became truly permanent readily accessible to all states desirous of recourse to it for the settlement of their legal disputes."

In the late 1700s, Great Britain and the USA recognized that they had so many outstanding border disputes requiring specialized knowledge, that they agreed by treaty to submit these to arbitration. With time, these types of international needs resulted in the creation of a Permanent Court of Arbitration (PCA), a distinct international body which shares the same building as the ICJ, a beautiful, ornate palatial building in The Hague.

As is customary with arbitration, in PCA proceedings, the parties appoint the arbitrator, the official language; set their own procedural rules and the proceedings are not public - all contrary to the process of the ICJ.

In 1921, in the aftermath of World War I, and in the wake of the League of Nations, but not a formal part of that, a "Permanent Court of International Justice", or PCIJ was created by treaty.

On February 15, 1922 the PCIJ held its first sitting.

True to history, territorial and maritime disputes continue to head the list of cases which are sent to the ICJ (court emblem pictured).

One thing Europeans share with military folk: they love acronyms. Why say "United Nations" when you can say "UN"? And since international fora are rife with Europeans (and, for that matter, the military), acronyms are everywhere. Speaking to a lawyer conversant in international law means referring to "ICJ" or "UN" or "EU" etc. On that basis, this article will adjust to the culture of international law and use acronyms as much as possible with apologies if this presents as an alpha-Sudoku.

The PCIJ and, later, its successor agency ICJ, swim in, breath and eat international law. Indeed, article 38 of the ICJ Statute states that the Court’s very "function is to decide in accordance with international law such disputes as are submitted to it". If there is a creature dedicated to international law, it is the ICJ.

The PCIJ suffered the indignation and interruption of the Nazi invasion of the Netherlands in July of 1940.

With the creation of the UN in June of 1945, the PCIJ was converted to a new model and re-named the International Court of Justice, but with little change to the underlying treaty, as it is reiterated at article 92 of the UN Charter.

The incorporation of the ICJ within the comprehensive UN structure was an important component of the latter. In fact, the United Nations Charter identifies six "principal organs"; one of which is the ICJ.

The court document for the ICJ is the constitutive treaty known as the "Statute of the International Court of Justice".

The Court "members" serve for nine-year terms. No country may have two judges on the Court and the Court elects its own president and vice president.

ICJ stampThe judges are stated to be "independent" and appointed "regardless of the nationality from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are (lawyers) of recognized competence in international law" (article 1 of the ICJ Statute).

Sounding almost like a Star Trek script, but a tad off on the math, the ICJ treaty implores "that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured".

There are 15 judges and, at last count, well over a 100 "nations" of the world, and as many – of not more - legal systems.

As of July 2007, the president of the ICJ was from the UK. Other members held passports from Jordan, Madagascar, China, Sierra Leone, Venezuela, USA, Japan, Germany, Slovakia, France, New Zealand, Mexico, Morocco and Russia.

Only states may be parties to litigation before the ICJ and even then must pre-qualify in one of three ways:

  • Membership in the UN (which has 192 members – are there any others out there?);
  • Adherence to the ICJ Treaty; or
  • Adornment to the jurisdiction of the ICJ for the purposes of a specific case.

In a reversal of the standard situation with traditional national courts, the ICJ has no mandatory jurisdiction but, instead, requires states to opt-in, to:

"... declare that they recognize 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 concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation (or) the nature or extent of the reparation to be made for the breach of an international obligation."

Some countries, like India and Canada, have long-winded declarations recognizing the ICJ’s jurisdiction. Others, like Nicaragua, are models of simplicity:

"On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International justice. Geneva, September 24, 1929. T. F. Medina."

The so-called "option clause" of the court's jurisdiction has not been universally accepted. The reality is that there are notable absence amongst the major nations in the world on the ICJ’s opt-in list.

The ICJ is toying with giving standing to international organizations. For example, a long list of international organizations are allowed to ask the ICJ for an advisory opinion which, once issued, carries significant political weight.

Some of the organizations that are allowed to ask the ICJ to weigh in an issue are: the World Health Organization, the International Monetary Fund, the International Civil Aviation Organization, International Labour Organization, International Maritime Organization, International Atomic Energy Agency and the World Intellectual Property Organization.

Like any traditional common-law or civil law case, the ICJ process commences with an exchange of documents, followed by an oral hearing, and completes with the judgment of the Court.

The ICJ Statute states that: "The (ICJ) judgment is final and without appeal" which is, on second thought, somewhat humorous as in any event, there is, at the time of writing, no known appellate court for the Solar System.

For all its prestige and promise, this is not a busy Court, having delivered only 93 judgments since 1946, and a further 25 advisory opinions (by comparison, in only 18 years, the PCIJ rendered judgment in 29 cases and gave 27 advisory opinions). As of the time of writing, July 2007, 12 cases were pending. The Court seems to be ignored and the judges seriously under-worked. In addition, judges get an annual salary (in 2000) of $160,000 US, and a pension equalling at least half their salary. I noticed that Canada hasn’t a representative .....!

But the magic of this court is not in that it is not busy. It is that it is available in permanent form, with the hope that, with time, it will be deferred to more and more. Without such an institution, no confidence or culture can be built for an international court of justice; a court which grew from the devastated fields of war, and which acts as a beacon and a "nudger" to the future of world dispute resolution.

Even in spite of its very small caseload, the ICJ is a significant contributor to world peace by developing, in as thoughtful a manner as judicially possible, principles of international law which provide nations of the world with a framework of coping with potential disputes over "who owns what?" and "who can do what?". In times where international trade and trespass are omnipresent, the future of the ICJ looks bright indeed.

A good example of a case heard by the ICJ is the Corfu Channel case, heard in 1946. British warships sustained significant damage and loss of life while passing through Albania’s Corfu Channel in 1946 and sought compensation from Albania. The matter was submitted to the ICJ which found that Albania had to at least have had knowledge of the mines and therefore was liable. The court also found that warships have a right of innocent passage through international straits in peacetime. 

References:

  • Website of the ICJ at http://www.icj-cij.org/will
  • Charter of the United Nations (at http://www.un.org/aboutun/charter/)
  • Statute of the International Court of Justice
  • The International Court of Justice, 10th Edition (New York: UN Department of public information, 2000) ISBN 92-1-100822-0
  • Kindred, Hugh and others, International Law (Toronto: Montgomery Publications, 1993)
  • Duhaime, Lloyd, The International Criminal Court