Upholding the Rule of Law at the International Level: The Role of the International Court of Justice

Article excerpt

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague, Netherlands. It operates under a Statute, which is an integral part of the Charter of the United Nations and to which all Member States are ipso facto parties. The Court is composed of15 judges elected to nine-year terms of office by the United Nations General Assembly and Security Council, sitting independently of each other, and may not include more than one judge of any nationality The composition of the Court must reflect the main forms of civilization and the principal legal systems of the world. (For the current list of ICJ judges, see box No. 1.)

The Court has a dual role: to settle in accordance with international law the legal disputes submitted to it by States, and to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

All Member States of the United Nations are entitled to apply to and appear before the Court in contentious cases. The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:

1. By the conclusion of a special agreement between them to submit the dispute to the Court;

2. By virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a disagreement over its interpretation or application, one of them may refer the dispute to the Court. Over 300 treaties or conventions contain a clause to that effect;

3. Through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. The declarations of 69 States are at present in force, a number of them having been made subject to the exclusion of certain categories of dispute, and;

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4. If a State has not recognized the jurisdiction of the Court at the time an application for instituting proceedings against it is filed, that State has the possibility of accepting such jurisdiction subsequently to enable the Court to entertain the case: the Court thus has jurisdiction as of the date of acceptance in virtue of the rule of forum prorogatum. In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which decides (competence de la competence).

The procedure followed by the Court in contentious cases is defined in its Statute, and in the Rules of Court adopted under the Statute. The proceedings include a written phase in which the parties file and exchange pleadings, and an oral phase consisting of public hearings at which agents and counsels address the Court. As the Court has two official languages, French and English, everything written or said in one language is translated into the other. After the oral proceedings, the Court deliberates in camera and then delivers its judgment at a public sitting. The judgment is final and without appeal. Should one of the States involved fail to comply with it, which is exceptional in practice, the other party may have recourse to the United Nations Security Council.

The advisory procedure of the Court is open solely to international organizations. The only bodies currently authorized to request advisory opinions of the Court are five organs of the United Nations and 16 agencies of the United Nations family. Upon receiving a request, the Court decides which States and organizations might provide useful information and gives them the opportunity of presenting written or oral statements. The Court shall otherwise be guided by the provisions of the Statute and of the Rules which apply in contentious cases to the extent to which it recognizes them to be applicable and shall, for this purpose, consider more specifically whether the request relates to a legal question actually pending between two or more States. …