Politics and the Emergence of An Activist International Court of Justice

By Thomas J. Bodie | Go to book overview
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4
The U.N. and the ICJ: Continuity and Change

This chapter moves on to an examination of the differention between legal and political questions as provided for in the Charter of the United Nations (U.N.), the Statute of the International Court of Justice (ICJ), and in the judgments and advisory opinions of the Court. As it was with the PCIJ, the possibility of the Court speaking to this issue exists to a greater degree than for the arbitral tribunal because of the much greater chance of a case being initiated unilaterally under some form of compulsory jurisdiction. What results from the possibility for unilateral application to the Court is a greater likelihood of jurisdictional objections being raised by an unwilling respondent. Certainly, one of those objections may be over the suitability of the subject matter for legal resolution.

The United Nations Charter charges the international community with the duty to resolve its disputes peacefully in Article 2(3), which states, "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." The "peaceful means" that the U.N. has in mind are set forth in Chapter 6 of the Charter, that chapter devoted to the Pacific Settlement of Disputes. Article 33(1) reads:

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, concilliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

One notes the inclusion of judicial settlement in this statement, which like the Covenant of the League raises the specter of an international court. The prevailing view in the mid-1940s of the role, and the limits to that role, that

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