The international arena is defined by norms that govern the manner in which both state and non-state actors perform. The seeming everyday ubiquity of such norms, though, can make them quite difficult to define. One of these concepts is international human rights, often touted yet rarely fully defined, which governs how politicians form policies, craft rhetoric, and engage in diplomacy with other states. This International Human Rights Law 101 series helps to provide the reader several useful historical and contemporary definitions to better understand the concept, along with several tools of analysis to examine modern case studies. Therefore, this 101 series is comprised of seven different articles which help to contextualize international human rights and the laws it governs, in both a historical and contemporary context.
The International Human Rights Law 101 series is therefore divided into seven parts: 1. International Human Rights Law 101: What is International Human Rights Law?
2. International Human Rights Law 101: What is International Humanitarian Law?
3. International Human Rights Law 101: The United Nations
4. International Human Rights Law 101: The International Court of Justice
5. International Human Rights Law 101: Human Rights in Bosnian War
6. International Human Rights Law 101: A Way Forward and Conclusions
International Human Rights Law 101: The International Court of Justice
Although the United Nations is commonly conceptualized as an arbiter of international law, it is vital to note the existence of various organizations within the institution which serve more specialized roles in evaluating human rights. The previous article touched on the Human Rights Council, an institution dedicated to monitoring human rights violations and providing formal recommendations to United Nations member states. This article of the ongoing International Human Rights Law 101 series seeks to analyze the specific role that another United Nations institution plays in international human rights. Specifically, the International Court of Justice is to be reviewed, covering topics such as its basis in jurisprudential history, its composition and jurisdiction, and specific cases the Court has ruled on.
Figure 1: The Rohingya genocide in Myanmar is one of the most recent Court rulings, in early 2022.
History of the International Court of Justice
First established in 1945, the International Court of Justice was formally created in the wake of its predecessor, the Permanent Court of International Justice. Preceding the creation of the Permanent Court, The Hague Peace Conference of 1899 was among the first instances in history of major powers coming together to discuss peace and warfare (Scott, n.d.). There they discussed growing concerns about militarization and economic crises, along with the intention of creating conventions for international arbitration. However, despite these substantial advancements, the major powers were incapable of agreeing on a system of how to assign permanent judges to the court (Eyffinger, 2007). As a result, an international court would not be created until after the devastation of the First World War.
The bloody aftermath of the First World War saw the inception of the League of Nations, in which various states voluntarily entered into an intergovernmental organization with the purpose of promoting peace. Its founding document called for the establishment of the Permanent Court of International Justice, where it “would be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it” (History, n.d.). After a series of drafts and formal ratifications, the Permanent Court of International Justice was formally established. The onset of World War Two and an increased height in isolationism and nationalism helped cause the decline of the Permanent Court. In an effort to restructure the world after the Second World War, delegates from fifty different states would meet in San Francisco to formulate the United Nations Charter and bring the International Court of Justice to life (The San Francisco Conference, n.d.). The following section describes how the Court is composed, along with the breadth of their judgment.
Figure 2: Steering Committee Meeting at the San Francisco Conference, 1945.
Composition and Jurisdiction
Judges in the International Court of Justice are elected to nine-year terms, voted on by both the Security Council and General Assembly (Members of the Court, n.d.). Through receiving an absolute majority in both bodies, fifteen judges are selected to serve on the Court, with one third of the Court then being up for reelection every three years. With no judges sharing the same country of origin, the geographic distribution of those serving are divided into the following: five seats for countries of Western origin, three for African states, three for Asian states, two for Eastern European states, and two for Latin American/Caribbean states (Harris, 2010).
When it comes to providing guidance and advisory statements, the jurisdiction of the International Court of Justice is twofold. In what is known as “contentious cases”, the International Court of Justice provides advice for situations submitted to it by states. Additionally, the Court also gives advice to the United Nations or other highly specialized agencies in “advisory jurisdiction” (Jurisdiction, n.d.). All 193 member states are parties to the Court, signifying that the state therefore can participate in cases and bring disputes to the Court for advisory opinions (Chapter XIV, n.d.). Furthermore, jurisdiction can only go so far. For states who practice noncompliance and do not follow the Court’s recommendations, the Security Council may deem it necessary to enact its own measures of judgment. The following section provides a brief overview of some of the Court’s most contentious cases, often relying on previous international law precedents to reach their conclusions.
Figure 3: The Iranian Hostage Crisis of 1979 remains one of the Court's most famous examples of contentious cases.
Although the Court cannot enforce binding judgements on member states, the outcomes of such cases serve as cultural precedent for events to come. One of the most famous judgements ruled by the International Court of Justice is that of Nicaragua vs the United States in 1986, in which the Court ruled in favor of Nicaragua that the United States had funded efforts of right-wing paramilitary groups within the state against the Nicaraguan government (Military and paramilitary activities, n.d.). The Court then advised the United States to “immediately cease and refrain from any action restricting access to Nicaraguan ports, and in particular, the laying of mines” (Military and paramilitary activities, n.d.), citing that Nicaragua has the right as a sovereign state to political independence and control over its own territory. Furthermore, the Court had found that the United States had severely violated international law in interfering with Nicaragua’s sovereignty and invoking the use of force. As such, the United States was party to an immediate cease and desist, along with paying reparations. In response, the United States refused to take further part in the case and withdrew, vetoing enforcement action in the Security Council (Posner and de Figueiredo, 2005).
Following the Nicaragua vs the United States case, many legal scholars have posited the question whether the International Court of Justice is an unbiased institution, due to the presence of judges from member states in its tribunal. Specifically, the concern whether judges rule in favor of the states which appoint them is paramount in critical legal studies. In addition, concerns whether blocs (defined by region, wealth, and political alliance) influence the manner in which judges vote remain a point of contention (Posner and de Figueiredo, 2005). Moving forward, current cases on the International Court of Justice’s docket include a concern raised by Ukraine against Russia for its involvement in the 2022 territorial aggression. It remains to be determined whether such concerns against the Court will be present in the actions leading up to the ruling.
Figure 4: Nicaraguan soldiers, 1987.
Despite these critical concerns, the International Court of Justice remains the most predominant institution in the international sphere who offers advisory opinions to states. By analyzing the composition of the Court and its international jurisdiction, this article helps to illuminate its inner workings and precise connection to human rights itself. The Court has ruled on hundreds of various cases, setting the precedent for international human rights going forward in the future. It is through examples such as Nicaragua vs The United States and the current invasion of Ukraine that illustrate the current predominance of the Court within the international system, providing an area for states to air concerns.
Chapter XIV: The International Court of Justice (Articles 92-96). (n.d.). United Nations. Retrieved June 29, 2022, from https://www.un.org/en/about-us/un-charter/chapter-14 Eyffinger, A. (2007). A Highly Critical Moment: Role and Record of the 1907 Hague Peace Conference. Netherlands International Law Review, 54(2), 197-228. doi:10.1017/S0165070X07001970 Harris, D. J. (2010). Cases and materials on international law. Sweet & Maxwell. History. International Court of Justice. (n.d.). Retrieved June 29, 2022, from https://www.icj-cij.org/en/history Jurisdiction. International Court of Justice. (n.d.). Retrieved June 29, 2022, from https://www.icj-cij.org/en/jurisdiction Members of the Court. International Court of Justice. (n.d.). Retrieved June 29, 2022, from https://www.icj-cij.org/en/members Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America). International Court of Justice. (n.d.). Retrieved June 29, 2022, from https://www.icj-cij.org/en/case/70 Posner, E. A., & de Figueiredo, M. F. P. (2005). Is the International Court of Justice Biased? The Journal of Legal Studies, 34(2), 599–630. https://doi.org/10.1086/430765 Scott, J. (n.d.). The Hague Peace Conferences of 1899 and 1907; a series of lectures delivered before the Johns Hopkins University in the year 1908. Avalon Project - Documents in Law, History and Diplomacy. Retrieved June 29, 2022, from https://avalon.law.yale.edu/19th_century/hag99-01.asp The San Francisco Conference. (n.d). United Nations. Retrieved June 29, 2022, from https://www.un.org/en/about-us/history-of-the-un/san-francisco-conference
Cover Image: UN Photo (2014). International Court of Justice judges hearing a case concerning a maritime dispute between Peru and Chile. [Photograph]. United Nations. Retrieved from: https://www.britannica.com/topic/International-Court-of-Justice Figure 1: Anonymous (2020). Historic day for Rohingya: World Court orders Myanmar to take immediate action to prevent genocide. [Photograph]. Jewish World Watch. Retrieved from: https://jww.org/site/icj-orders-action-from-myanmar/
Figure 2: Eastman (1945). Steering Committee Meeting on 10 May 1945 in San Francisco. [Photograph]. United Nations. Retrieved from: https://www.un.org/en/about-us/history-of-the-un/san-francisco-conference Figure 3: Bettmann (1979). American hostages being paraded by their militant Iranian captors. [Photograph]. ThoughtCo. Retrieved from: https://www.thoughtco.com/iran-hostage-crisis-4845968 Figure 4: Wallace, S (1987). Soldiers of the Sandinista Popular Army in Nicaragua in 1987. [Photograph]. Rolling Stone. Retrieved from: https://www.rollingstone.com/culture/culture-news/reagans-dangerous-game-in-nicaragua-111446/