The International Court of Justice and its Contribution to International Peace and SecurityIntroductionThe International Court of Justice (the Court) is the judicial arm of the United Nations. It is the institution available to certain international bodies to seek legal advice, and the Court to which States - according to Article 36 of the UN Charter - should refer legal disputes for resolution. Replacing the Permanent International Court of Justice (PCIJ), which had functioned since 1922, the Court began its work at the Peace Palace in The Hague (Netherlands) in 1946. Its Statute is annexed to the UN Charter, and thus all UN Member States are automatically parties to it. Owing to its long history and broad membership, the Court signifies the availability of legal adjudication for resolving conflicts, and should be considered the most senior of all the International Courts. CompositionThe Court consists of fifteen judges holding office for nine years, with one-third elected every three years by a majority vote in both the Security Council and General Assembly. The composition of judges must reflect the principal legal systems of the world and there can be no more than one judge of any nationality. At least in theory, the elected judges are supposed to act as independent magistrates and not representatives of their governments. However, if a State appearing before the Court does not have a judge of its own nationality at the Court, that State may appoint an ad hoc judge for that specific case. Functions of the CourtThe Court serves two functions: (1) to settle legal disputes submitted to it by States in accordance with international law (known as Contentious Proceedings); and (2) to give Advisory Opinions on legal questions referred to it by authorised international organs and agencies. In fulfilling both tasks, Article 38 (1) of the Statute details the sources of applicable law the Court will apply. These are now well established: custom, treaties, general principles of law, judicial decisions, and the writings and teachings of leading publicists. 1. Settling Legal DisputesOnly States - as opposed to individuals, companies, or international organisations - may bring disputes before the Court and the Court's authority in such cases is dependent on the consent of the States concerned. This can essentially be given in two ways. First, consent can be given before a dispute arises by means of a compromise clause in a treaty or by a declaration under Article 36 (2) of the Statute, known as the 'Optional Clause'. The 'Optional Clause' marks a State's acceptance, in principle, of judicial settlements by the Court on certain terms and conditions, and reflects a compromise between advocates and opponents of compulsory jurisdiction. Second, consent can be established after a dispute arises by means of a special agreement to submit the case to the Court. These agreements provide the Parties with an opportunity to define the issues under dispute, and indicate the basis on which the Court should give its decision. ProcedureThe Court's procedure is laid out in its Statute and the Rules of Court, first adopted in 1978 and most recently updated in December 2000. The proceedings include a written phase, in which the Parties file and exchange pleadings, and an oral phase of public hearings, at which agents and counsel of the Parties address the Court. Everything written or said during these phases is recorded in the two official languages of the Court - English and French. Following the oral hearing, the Court deliberates in private and then delivers its judgement in a public sitting. The judgement is final and without appeal. Case Law in the Peace and Security AreaSince 1946, the Court has delivered decisions on a number of disputes that affect international peace and security including, inter alia, land frontiers and maritime boundaries, territorial sovereignty, the non-use of force, non-interference in internal affairs of States, hostage-taking, the right of asylum, and diplomatic relations. Case Study 1: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).A case illustrative of the functioning of the Court in settling international legal disputes concerned the distribution by the Belgian Government of an arrest warrant for the Minister of Foreign Affairs of the Democratic Republic of Congo (DRC), Mr. Abdulaye Yerodia Ndombasi, on charges of war crimes and crimes against humanity. This prompted a legal dispute between Belgium and the DRC regarding immunity from criminal prosecution afforded to diplomatic and government representatives, in which the DRC asked the Court to order Belgium to annul the warrant. In its judgement, handed down on 14 February 2002, the Court decided by thirteen votes to three that
In reaching this decision, the Court recalled that under customary international law, immunities for diplomats are granted to ensure the effective performance of their functions on behalf of their respective States. The Court thus concluded that 'throughout the duration of office, a Minister of Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction', whether the Minister is present in an official or personal capacity, and whether the acts in question are performed before, during, or after he or she has assumed office. As such, it ruled that the Belgian arrest warrant, circulated to facilitate the capture of Mr. Yerodia abroad and ensure his extradition to Belgium, had been unlawful. The Court also dealt with the question of whether these immunities existed even when the Minister of Foreign Affairs was suspected of having committed war crimes and crimes against humanity. Having examined State practice in this area, including the decisions of national higher courts such as the House of Lords in the Pinochet case in the UK, the Court found that it was unable to conclude that in customary law there existed any exception to the rule according immunity from criminal jurisdiction to Ministers of Foreign Affairs. Based on this reasoning, the Court concluded that Belgium must cancel the arrest warrant and inform the authorities to whom it had been circulated. Court President, Judge Gilbert Guillaume, commented: 'this judgement not only brings closure to the dispute of which it has been seized. It also represents an important contribution by the Court to the development of international law in a field of great topical interest'. Ad Hoc ChambersThe positive assessment advanced by Judge Guillaume in this case should not detract from the fact that the Court had still been forced to tackle the Belgian contention that because Mr. Yerodia was no longer the Minister of Foreign Affairs at the time the Court was dealing with the case, the fundamental nature of the dispute had changed, the case was inadmissible, and thus the Court lacked jurisdiction to rule on it. The challenge of establishing jurisdiction - a theme common to the functioning of the Court - helps explain why disputing Parties often prefer arbitration to judicial adjudication, as it represents a much more flexible mechanism and gives the Parties choice over the seat of the tribunal, the procedure to be applied, and the power and terms of reference of the tribunal. In an effort to encourage the greater use of its facilities, the Court revised its rules in 1978 to promote the use of ad hoc chambers. This procedure gives disputing Parties an opportunity to influence the composition and number of judges deciding the case, and ensures greater confidence in the proceedings and the final outcome of the case. The Gulf of Maine Case brought by Canada and the USA in 1981 provides a useful insight: both Parties made it clear that unless their wishes as to the composition were carried out, they would withdraw from the process. Accordingly, the Court elected the Chamber requested by the Parties. Although this innovation gives rise to criticism on the grounds that it is not reconcilable with the independent character of the Court, ad hoc chambers are often preferred by disputing Parties as they combine the major advantage of arbitration - control over the number and composition of judges - with that of the Court, coming equipped with a panel of available judges, a Court building, and facilities paid for by the UN. (2) Advisory OpinionsThe second function of the Court is to give advisory opinions. Article 96 of the UN Charter stipulates:
Thus, the advisory opinion is not open to States, but only to international organisations. ProcedureOn receiving a request, the Court decides which States and organisations might provide useful information, and provides them the opportunity to present written or oral statements. Otherwise, the Court's procedure is modelled on that for contentious proceedings. In principle, unlike judgements, advisory opinions are consultative and are therefore not binding on the requesting bodies. However, certain instruments and regulations agreed in advance can provide that advisory opinions are binding, carry political weight and are usually complied with. Past ExamplesSince 1946, the Court has given advisory opinions on, inter alia, admission to UN membership, reparation for injuries suffered in the services of the UN, the territorial status of South-West Africa (Namibia) and Western Sahara, judgements rendered by international administrative tribunals, the expenses of certain UN operations, and more recently the legality of nuclear weapons. Case Study 2: Advisory Opinion of 8 July 1996 regarding the Legality of the Use by a State of Nuclear Weapons in Armed Conflict.In a letter dated 27 August 1993, the Director-General of the World Health Organisation (WHO) communicated to the Court Registrar a question for an advisory opinion, which read:
The WHO request paved the way for the UN General Assembly (UNGA) to adopt a resolution on 15 December 1994 asking the Court urgently to render its advisory opinion on the question: 'Is the threat or use of nuclear weapons in any circumstance permitted under international law?' In response to the UNGA question, the Court decided by thirteen votes to one to comply with the request, and gave a 34-page opinion that concluded 'a threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of international humanitarian law'. By contrast, the Court found by eleven votes to three that it was unable to give the advisory opinion requested by the WHO. Why did the Court reach this position? The WHO QuestionThe Court considered that three conditions had to be satisfied to found its jurisdiction: the requesting agency must be duly authorised; the opinion requested must be on a legal question; and the question must be one arising within the scope of the activities of the requesting agency. The Court decided that the first two conditions were met. Article 76 of the WHO Constitution, coupled with an agreement reached in July 1948 between the UN and the WHO, left the Court in no doubt that the WHO had been duly authorised to request advisory opinions. The Court also held that the WHO question did constitute a 'legal question', for the Court had to identify the obligations of States under the rules of law and assess whether the behaviour in question conformed to these obligations, thus giving an answer to the question based on law. Nevertheless, with regard to the third condition, the Court concluded that the request for an advisory opinion submitted by the WHO did not relate to a question that arose 'within the scope of the activities of that organisation'. In reaching this position, the Court pointed out a number of factors. Referring to Article 2 of the WHO Constitution, the Court held that none of the provisions expressly referred to the legality of any activity hazardous to health. Moreover, although the WHO Constitution authorised the organisation to deal with the effects on health of the use of nuclear weapons, the Court ruled that the question put to it related not to the effects, but to the legality of the use of such weapons in view of their health and environmental effects. Finally, the Court determined that, whatever those effects might be, the competence of the WHO to plan and co-ordinate the care of survivors of a nuclear war was not dependent on whether the use of nuclear weapons was illegal or legal. Thus, despite the dissenting opinions of three judges - who considered that the Court had misinterpreted the WHO question as being one of general legality instead of one dealing with State obligations in the areas of health, the environment, and the WHO Constitution - the Court concluded that "the responsibilities of the WHO are restricted to the sphere of public 'health' and cannot encroach upon the responsibilities of the other parts of the UN system". This judgement was the first time that the Court had refused to consider the request of a UN agency for an advisory opinion, and led the World Court Project to remark: 'by declining, the Court has chosen to vacate its positive record in this sphere, particularly on a legal issue that has major implications for public health, humanity and global survival'. Final RemarksThe past case-load of the Court has been light, stemming from several factors. This situation might have been different if individuals and companies could use its facilities, if national courts could seek rulings from the Court on issues of international law, or if the Court could deal with economic disputes. Further, States are reluctant to refer disputes to the Court when their national interests are at stake: legal adjudication is a particularly 'high-risk' strategy. Nevertheless, assessing the significance and contribution of the Court should not be done on the criterion of utilisation alone. A better mark of the Court's importance is that it has a reputation for impartiality, enjoys global legitimacy as an organ of the UN, and crucially provides a permanent reminder to States of the availability of adjudication as a means of peacefully settling disputes. Author: Tim Pippard, Research Assistant, editor: Alex Ramsbotham, Head of Research. This set of briefing papers has been financed by a donation in memory of Joy K B Wynn-Jones and Mary Owen. For a full publication list and more detailed information on the work of the Programme, please contact Alexander Ramsbotham, Head of Research, UN and Conflict Programme, UNA-UK, 3 Whitehall Court, London SW1A 2EL. Tel: (switchboard) +44 (0)20 7766 3444 (direct line) +44 (0)20 7766 3446 Fax: +44 (0)20 7930 5893 E-mail: aramsbotham@una-uk.org. |