International Court of Justice

The International Court of Justice (known colloquially as the World Court or ICJ) is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Established in 1945 by the UN Charter, the Court began work in 1946. The Statute of the International Court of Justice is the main constitutional document constituting and regulating the Court. The ICJ should not be confused with the International Criminal Court, which also potentially has " global" jurisdiction. English and French are its two official languages.

The Court's workload is characterized by a wide range of judicial activity. Its main functions are to settle legal disputes submitted to it by member states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies and the UN General Assembly. The ICJ has dealt with relatively few cases in its history, but there has clearly been an increased willingness to use the Court since the 1980s, especially among developing countries.

The ICJ is composed of 15 judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. No two may be nationals of the same country. 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 (now post-communist law). All judges should be " elected regardless of their nationality among persons of high moral character", who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law. Judges of the ICJ are not able to hold any other post, nor act as counsel. A judge can be dismissed by only a unanimous vote of other members of the Court.Judges may deliver joint judgments or give their own separate opinions. Decisions and Advisory Opinions are by majority and, in the event of an equal division, the President's vote becomes decisive. Judges may also deliver separate dissenting opinions.

The statute sets out a procedure whereby ad hoc judges sit on contentious cases before the Court. This system allows any party to a contentious case to nominate a judge of their choice (usually of their nationality), if a judge of their nationality is not already on the bench. Ad hoc judges participate fully in the case and the deliberations, along with the permanent bench.

All 192 UN members are automatically parties to the Court's statute though in some cases the non-UN members may also become parties to the Court's statute. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions.

In contentious cases, the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organizations. This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of " diplomatic protection", bring a case on behalf of one of its nationals or corporations. Jurisdiction is often a crucial question for the Court in contentious cases. The key principle is that the ICJ has jurisdiction only on the basis of consent.

An advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court's advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

Article 94 establishes the duty of all UN members to comply with decisions of the Court involving them. If parties do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, any resolution on enforcement would then be vetoed.

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 " general principles of law recognized by civilized nations". It may also refer to academic writing and previous judicial decisions to help interpret the law. If the parties agree, they may also grant the Court the liberty to decide ex aequo et bono (" in justice and fairness"), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances. The Court operating under ex aequo et bono would act in some ways similar to a mediator. However, this provision has not been used in the Court's history.

The ICJ is vested with the power to make its own rules. Court procedure is set out in Rules of Court of the International Court of Justice. Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant who files a written memorial setting out the basis of the Court's jurisdiction and the merits of its claim. The respondent may accept the Court's jurisdiction and file its own memorial on the merits of the case. Once deliberation has taken place, the Court will issue a majority opinion. Individual judges may issue separate opinions (if they agree with the outcome reached in the judgment of the court but differ in their reasoning) or dissenting opinions (if they disagree with the majority). No appeal is possible.

The International Court has been criticized with respect to its rulings, its procedures, and its authority. As with United Nations criticisms as a whole, many of these criticisms refer more to the general authority assigned to the body by member states through its charter than to specific problems with the composition of judges or their rulings.

Notes:

1. workload – об’єм роботи

2. Permanent Court of Arbitration – Міжнародний суд (у Гаазі)

3. ad hoc judge – суддя, спеціально призначений для даного випадку

4. contentious case– справа по суперечці

5. preclude – запобігати, усувати

6. enforcement – примусовий метод виконання

23. Answer the following questions:

1. What is an International Court of Justice?

2. What are the main functions of the Court?

3. Who do the judges of ICJ represent?

4. What are main issues of ICJ?

5. What is the difference between the Contentious case and Advisory opinion?

6. In what cases are the enforcement methods applied?

7. Can the Court take a decision on the ex aequo et bono basis?

8. What are the Court procedure rules at ICJ?