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International Court of Justice - Description [2003] PICTRes 19 (15 December 2003)
International Court of Justice
Any
treatise of international courts and tribunals and dispute-settlement
procedures inevitably start with
an exposé of the World
Court as the International
Court of Justice (ICJ) and its predecessor, the Permanent Court of
International Justice (PCIJ), are collectively called. Indeed, for much
of the twentieth century the World Court has been the archetype
of all international judicial bodies and, although
nowadays it is no more
the lone buttress of the international rule of law, none of its later
successors has really
challenged its ascendancy. It still remains the
only judicial forum before which States, and only States, can bring virtually
any legal dispute, no matter whether it arises out of the alleged violation
of an international agreement or
out of customary international law. No
other forum's jurisdiction is potentially as far-reaching as that of the
ICJ, for all others are restricted either rationae materiae, personae
or loci. This consideration by itself, therefore, might justify
regarding it as a primus inter pares in the international judicial
system.
A straightforward explanation for the World Court's prominence in the
20th century's international judiciary might
be that, at least until the
beginning of the 1950s, it had no rivals. The only potential competing
international
body was the Permanent Court of Arbitration (PCA), established
in 1899. But the PCA is not permanent; it simply provides
a stable institutional
framework and a roster of experts for ad hoc arbitration or conciliation.
As soon as the World Court started functioning, the PCA was sidelined.
Nonetheless,
since the end of World War II, the evolution of international
law into highly specialized and self-contained areas (e.g.,
international
trade law, human rights law, law of the sea, etc.) and the coagulation
of States into regional
organizations conspired to enlarge the number
of international judicial fora. These elements, reinforced by recurrent
criticism of the World Court being difficult to access and blotted by
erratic jurisprudence, eventually spurred
the birth of a large number
of international judicial and quasi-judicial bodies.
Despite this, the International Court of Justice is still towering in
the international judicial arena. The ICJ
is one of the six principal
organs of the United Nations. It is the principal judicial organ of the
cardinal
international organization the only one with universal scope
and membership. This grants the ICJ a crucial edge over all
other international
judicial bodies and explains why, in different epochs, scholars have envisioned
for it the
role of international constitutional court, or ultimate appellate
jurisdiction.
What ultimately gives reality to the organic integration of the ICJ in
the United Nations, and explains the primacy
of the World Court over all
international judicial bodies, is the extension and nature of its jurisdiction.
The
ICJ's function is twofold: to settle in accordance with international
law the legal disputes submitted to it by States,
and to give advisory
opinions on legal questions submitted by duly authorized international
organs and agencies.
All members of the UN are ipso facto parties to the Court's Statute,
which is an integral part of the UN Charter (and, nowadays, virtually
all States
are members of the UN) . Yet the Court is competent to hear
a case only if the States concerned have accepted its jurisdiction
(hence
the criticism of impracticability). Such an acceptance can take the form
of the conclusion of an ad hoc agreement to submit the dispute
to the Court. Alternatively, it can be included in a jurisdictional clause
of
a treaty (e.g., when disputants are parties to a treaty which contains
a provision whereby, in the event of a disagreement
over its interpretation
or application, one of them may refer the dispute to the Court). Finally,
the jurisdiction
of the ICJ can derive from the reciprocal effect of optional
declarations, whereby each disputing State has accepted the
jurisdiction
of the Court as compulsory in the event of a dispute with another State
having made a similar declaration.
The Court's judgment is final and without
appeal. Should one of the States involved fail to comply with it, the
other party may have recourse to the United Nations Security Council.
Concerning the advisory jurisdiction, only UN organs and UN specialized
agencies can request opinions of the Court.
The Court's advisory procedure
is modeled on that of contentious proceedings, and the sources of applicable
law
are the same. In principle the Court's advisory opinions are consultative
in character and are therefore not binding as
such on the requesting bodies.
Certain instruments or regulations can, however, stipulate in advance
that the
advisory opinion shall be binding.
Finally, beside contentious and advisory jurisdictions, the ICJ may also
exercise appellate jurisdiction. This
may result, for instance, from provisions
contained in treaties, such as the Convention of 1944 on International
Civil Aviation, which envisages appeals to the ICJ from decisions of the
ICAO Council. The International Court of Justice
can act as a court of
appeal of the ILO Administrative Tribunal. Until 1995, decisions of the
United Nations
Administrative Tribunal could also be appealed to the ICJ,
but the link was severed by the UN General Assembly.
Data obtained from the Project on International Courts and Tribunals (PICT)
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