The ICJ: Origin, Functions and Weaknesses
The International Court of Justice (The ICJ or 'the Court'), is a principal organ of the United Nations (UN) and provides a forum for States to settle international economic disputes. The idea for the Court arose during several conferences which led to the creation of the Hague Conventions in the late 19th and early 20th centuries (International Court of Justice, 2022). The body had subsequently established the Permanent Court of Arbitration which was the precursor of the former Permanent Court of International Justice (PCIJ). The PICJ was established by the former League of Nations (International Court of Justice, 2022).
The outbreak of World War 2 in September 1939 had major consequences for the PCIJ, which had already experienced a considerable decline in its activity. The Permanent Court of International Justice stopped electing judges and ceased all official business after its last public sitting of 4 December 1939 (International Court of Justice, 2022). The court's final order was on the 26 of February 1940. In 1946, the PCIJ was dissolved and the decision to create a new International Court of Justice (ICJ) on the same lines as the Permanent Court was made at the San Francisco Conference (Rao, 2003). The Statute of the International Court of Justice is an important part of the United Nations Charter unlike the Statute of the PCIJ. The Peace Palace located at the Hague in the Netherlands, is the home of the International Court of Justice, making it the only UN organ not located in New York City (UN, 2022).
The Judges of the ICJ
The ICJ consists of 15 judges which are elected for a nine year period. There is only one national of any state as a member of the Court and the judges must represent all major legal systems of the world. The president and the Vice President of the ICJ are usually elected for a three year term (Members of the Court | International Court of Justice, n.d.).
Candidates, for the position of judge must be of high moral character, who have the qualifications that are required to be appointed to the highest juris consults or judicial offices recognized by the international law. The election of the ICJ members is held both in the General Assembly and also in the United Nations Security Council with each of them voting independently. For the candidate to be elected he or she must get an absolute majority from the two organs (Members of the Court | International Court of Justice, n.d.). The judges also can not to be involved in any political or administrative functions rather any other professional occupation during their term in office (Members of the Court | International Court of Justice, n.d.).
The official languages of the court are French and English, but the court can also give authorization for a party to use another language. In such cases, an English or French translation will be attached to the judgment (The International Court of Justice (ICJ), 2021).
A member of the court may decide that they should not be part of the decision-making in a particular case, and the president of the court can suggest that, for special reasons, a particular member should not take part in the decision-making. This is called recusal. If there is a disagreement between the judge and the president, the issue will be settled by the decision of the court. As another provision, the court's rules have made provisions allowing for parties to choose an additional judge if a judge of the nationality of the other party is sitting. This is known as an ad-hoc judge, who is permitted to ensure equality between the parties (Judges Ad Hoc | International Court of Justice, n.d.).
Functions of the ICJ
Three important functions of the ICJ include: dispute settlement, the court's incidental jurisdiction and issuing advisory opinions. The role of the ICJ is to handle disputes which are submitted to it in accordance with the international law. The ICJ has a major role in peaceful dispute settlement which is reinforced by the United Nations Charter, Article 36(3) which states that legal disputes should, as a general rule, be referred by the parties to the ICJ in accordance with the provision of the Statute of the Court. The ICJ then settles these legal disputes. Only states who have consented to the court's jurisdiction can be heard as parties in cases that are presented before the court (Coppola, 2020).
Article 41 of the Statute creates the incidental jurisdiction of the court, this refers to the competence to order interim measures which help in the protection of a party’s right to any dispute (Hillier, 1998). Such interim orders can occur until the court has rendered its final judgement. The two parties or a single party can request an interim measure. For example in the frontier dispute case, the two parties, Mali and Burkina Faso, submitted an application to the ICJ which had indicated interim measures.
The International Court of Justice also has advisory jurisdiction that covers answering any legal questions which are asked at the questioning of any authorized body. The Court's jurisdiction is usually challenged when it comes to contentious cases (International Court of Justice, 2022). The General Assembly and the United Nations Security Council can ask for the advisory opinions of the court on any legal matter and also other organs and specialized agencies are also allowed to ask for advisory opinions on any legal questions which arise within the activities scope (International Court of Justice, 2022).
Weaknesses of the International Court of Justice
There are several perceived weaknesses with the ICJ. These include: lack of Accessibility, the limited jurisdictional bases of the Court, and Absence of Genuine Compulsory Jurisdiction.
Lack of Accessibility refers to the fact that individuals cannot be parties, only states are allowed to be parties in cases that are brought before it. The court is usually open to the members of the United Nations who are, ipso facto, parties to the Statutes of the court or also to non United Nations member states who have become parties to the Statute. Some have also suggested to alter the position of the Statute of the Court so that the private individuals, non governmental organizations and also cooperation's will be able to have access to it (Ogbodo, 2012).
The second issue, the limited jurisdictional bases of the Court, refers to the fact that the ICJ is not able to exercise its jurisdiction with the respect to any states, the state's consent. This contrasts the court's role as a principal organ of the UN, by providing it with a narrow margin with respect to making decisions on exceptionally controversial or broad disputes. Ogbodo (2012) argues that ICJ is not given the right amount of jurisdictional basis which will be used to address the dispute in total and this portrays a trait of weakness in the eyes of the public when it comes to handling international disputes.
Finally, the ICJ's compulsory jurisdiction is not really compulsory. The jurisdiction of the court depends on the consent of the parties involved. States were given power to accept or not accept the jurisdiction of the court and they are able to do so under their own terms and conditions, although once a state gives its consent, the state is to subject itself to the Jurisdiction of the Court. It is this legal obligation that makes the term "compulsory" (Lawson, 1952).
In conclusion, the ICJ was established as a replacement for the PCIJ in 1946. It was formed to settle disputes, give advisory opinions and order interim measures. Though the court was created to handle disputes in a more effective manner than the P
CIJ, it still has its weaknesses which prevents it from being the perfect judicial organ, the weaknesses including lack of accessibility, limited jurisdiction and having a compulsory jurisdiction that isn't really compulsory. It is clear that the Court still needs to undergo certain changes before it can operate more effectively.
Coppola, P. (2020). Introduction to International Disaster Management (Fourth Edition)
Forum, V. (2013). The International Court of Justice (ICJ)
Hillier, T. (1998). Sourcebook on Public International Law (1st ed.). Routledge-Cavendish. https://doi.org/10.4324/9781843143802
How the Court Works | International Court of Justice. (2022). www.icj-cij.org. Retrieved 12 September 2022, from https://www.icj-cij.org/en/how-the-court-works
Judges ad hoc | International Court of Justice. (n.d.). Retrieved October 23, 2022, from https://www.icj-cij.org/en/judges-ad-hoc
Lawson, R. C. (1952). The problem of the compulsory jurisdiction of the World Court. American Journal of International Law, 46(2), 219-238.
Members of the Court | International Court of Justice. (n.d.). Retrieved October 23, 2022, from https://www.icj-cij.org/en/members
Ogbodo, S. G. (2012). An Overview of the Challenges Facing the International Court of Justice in the 21st Century. Annual Survey of International & Comparative Law, 18(1), 93
The International Court of Justice (ICJ). (2022). NVVN. Retrieved 14 October 2022, from https://nvvn.nl/the-international-court-of-justice-icj/.
UNCTAD (2003). GENERAL TOPICS - 1.2 International Court of Justice. Retrieved 12 October 2022 from https://unctad.org/en/Docs/edmmisc232add19_en.pdf
Cover Image: Unknown. (2017) Is “moonlighting” a problem? The role of ICJ judges in ISDS [Photography]. Retrieved 5 November 2022, from https://www.bilaterals.org/?is-moonlighting-a-problem-the-role
Image 1: Home | International Court of Justice. (n.d.). Retrieved October 24, 2022, from https://www.icj-cij.org/en
Image 2: ICJ rejects India’s plea for Jadhav's return, grants consular access. (2019, July 18). Dawn.com. [Photography]. Retrieved October 23, 2022, from https://www.dawn.com/news/1494604
Image 3: ICJ General Presentation Gallery (ICJ Film, Official Pictures and videos) | International Court of Justice. (n.d.). Retrieved October 23, 2022, from https://www.icj-cij.org/en/multimedia/58e761f588fa3f2b5c183717
Image 4: Session of the International Criminal Court taking place in the Great Hall of the Peace Palace. (n.d.). NVVN. [Photography]. Retrieved 14 October 2022, from https://nvvn.nl/the-international-court-of-justice-icj/
Image 5: Ukraine and the International Court of Justice. (2022, May 20). Norgesportalen. Retrieved October 23, 2022, from https://www.norway.no/en/missions/UN/news/ukraine-and-the-international-court-of-justice/
Image 6: The International Court of Justice in The Hague in session on December 10, 1979. (n.d.) NVVN. [Photography]. Retrieved 14 October 2022, from https://nvvn.nl/the-international-court-of-justice-icj/
Image 7: ICJ General Presentation Gallery (ICJ Film, Official Pictures and videos) | International Court of Justice. (n.d.). Retrieved October 23, 2022, from https://www.icj-cij.org/en/multimedia/58e761f588fa3f2b5c183717