1. INTERNATIONAL LAW Res. Asst. Zeynep ELİBOL Week 4.2
LAW 202 Spring 2011
INTERNATIONAL LAW
Res. Asst. Zeynep ELİBOL
Week 4.2

2. The International Court of Justice (Chapter XIV)
Principal judicial organ of the UN
Article 92
The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.
Article 93
1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
2. A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.
Article 95
Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.
Article 96
1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

3. The ICJ
The Court:
- The principal judicial organ of the UN; also known as the “World Court”
- Established in June 1945 by the Charter of the United Nations and began work in April 1946
- Seat: The Peace Palace in The Hague (Netherlands). - Of the six principal organs of the United Nations, it is the only one not located in New York-
- The Court’s role: to settle, in accordance with international law, legal disputes submitted to it by States (Art. 34/1) and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies (Art. 65).
- 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council
- Assisted by a Registry, its administrative organ
- Official languages: English and French.

4. The ICJ
History: - The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had already for some years known a period of diminished activity. After its last public sitting on 4 December 1939, the Permanent Court of International Justice did not in fact deal with any judicial business and no further elections of judges were held. In 1940 the Court removed to Geneva, a single judge remaining at The Hague, together with a few Registry officials of Dutch nationality. It was inevitable that even under the stress of the war some thought should be given to the future of the Court, as well as to the creation of a new international political order. - In 1942 the United States Secretary of State and the Foreign Secretary of the United Kingdom declared themselves in favour of the establishment or re-establishment of an international court after the war, and the Inter-American Juridical Committee recommended the extension of the PCIJ’s jurisdiction. Early in 1943, the United Kingdom Government took the initiative of inviting a number of experts to London to constitute an informal Inter-Allied Committee to examine the matter. This Committee, under the chairmanship of Sir William Malkin ( United Kingdom), held 19 meetings, which were attended by jurists from 11 countries. In its report, which was published on 10 February 1944, it recommended: that the Statute of any new international court should be based on that of the Permanent Court of International Justice; * that advisory jurisdiction should be retained in the case of the new Court; * that acceptance of the jurisdiction of the new Court should not be compulsory; * that the Court should have no jurisdiction to deal with essentially political matters.

5. The ICJ
Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”. The San Francisco Conference: Continuity with the past should not be totally broken, particularly as the Statute of the PCIJ had itself been drawn up on the basis of past experience. The Charter therefore plainly stated that the Statute of the International Court of Justice was based upon that of the PCIJ: Art. 92 of the UN Charter: The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. The PCIJ met for the last time in October 1945 when it was decided to take all appropriate measures to ensure the transfer of its archives and effects to the new International Court of Justice. The judges of the PCIJ all resigned on 31 January 1946, and the election of the first Members of the International Court of Justice took place on 6 February 1946, at the First Session of the United Nations General Assembly and Security Council. In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero ( El Salvador), the last President of the PCIJ. The Court appointed the members of its Registry (largely from among former officials of the PCIJ) and held an inaugural public sitting, on the 18th of that month. The first case was submitted in May It concerned incidents in the Corfu Channel and was brought by the United Kingdom against Albania.

6. The ICJ
Composition: The ICJ is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. In order to be elected, a candidate must receive an absolute majority of the votes in both bodies. In order to ensure a measure of continuity, one third of the Court is elected every three years. Judges are eligible for re-election.  Here, the P5 do not have veto power, so 8 affirmative out of 15 is enough for election, regardless of what the permanent members have voted for. All States parties to the Statute of the Court have the right to propose candidates. These proposals are made not by the government of the State concerned, but by a group consisting of the members of the Permanent Court of Arbitration.  The national groups of the Permanent Court of Arbitration are themselves nominated by governments, and nominations are sent through Foreign Ministries. (Art. 4-7 of the ICJ Statute regulate nomination.) The names of candidates must be communicated to the Secretary-General of the United Nations within a time-limit laid down by him/her. Judges must be elected from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are jurisconsults of recognized competence in international law.

7. The ICJ
The Court may not include more than one national of the same State. Moreover, the Court as a whole must represent the main forms of civilization and the principal legal systems of the world. The distribution of membership: Africa 3, Latin America and the Caribbean 2, Asia 3, Western Europe and other States 5, Eastern Europe 2, which corresponds to that of membership of the Security Council. Although there is no entitlement to membership on the part of any country, the Court has always included judges of the nationality of the permanent members of the Security Council. Once elected, a Member of the Court is a delegate neither of the government of his own country nor of that of any other State. Unlike most other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously. In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. No Member of the Court may engage in any other occupation during his/her term. He/she is not allowed to exercise any political or administrative function, nor to act as agent, counsel or advocate in any case. Any doubts with regard to this question are settled by decision of the Court. A Member of the Court, when engaged on the business of the Court, enjoys privileges and immunities comparable with those of the head of a diplomatic mission. Although the Court is deemed to be permanently in session, only its President is obliged to reside in The Hague.

8. The ICJ
Chambers:
The Court generally discharges its duties as a full Court (a quorum of nine judges, excluding judges ad hoc, being sufficient). But it may also form permanent or temporary chambers.
The Court has three types of chamber:
- the Chamber of Summary Procedure, comprising five judges, including the President and Vice-President, and two substitutes, which the Court is required by Article 29 of the Statute to form annually with a view to the speedy dispatch of business;
- any chamber, comprising at least three judges, that the Court may form pursuant to Article 26, paragraph 1, of the Statute to deal with certain categories of cases, such as labour or communications ( in 1993, the Court created a Chamber for Environmental Matters, which was periodically reconstituted until In the Chamber’s 13 years of existence, no State requested that a case be dealt with by it. The Court consequently decided in 2006 not to hold elections for a Bench for the said Chamber.)
- any chamber that the Court may form pursuant to Article 26, paragraph 2, of the Statute (ad hoc chambers) to deal with a particular case, after formally consulting the parties regarding the number of its members - and informally regarding their name - who will then sit in all phases of the case until its final conclusion, even if in the meantime they cease to be Members of the Court.
Despite the advantages that chambers can offer in certain cases, under the terms of the Statute their use remains exceptional. Their formation requires the consent of the parties. While, to date, no case has been heard by either of the first two types of chamber, by contrast there have been six cases dealt with by ad hoc chambers.
Ad hoc judges:
Art. 31:
1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court.
2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article.

9. The ICJ Committees: Budgetary and Administrative Committee
Library Committee (works on the acquisations to the Court’s library and supervises on the modernization of its services)
Rules Committee (advises to the Court on procedural matters and how the Court works)

10. The ICJ Jurisdiction: A - Contentious Cases:
The basic principle of freedom of choice applies: No state is subject to the jurisdiction of the ICJ by simply being a member of the UN
Art. 36 of the ICJ Statute reflects the principle of sovereign equality :
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

11. The ICJ – Jurisdiction
The requirement of consent to be given by each party is not even indespensable in instances where jus cogens or erga omnes norms are at issue.
 We already mentioned that being a party to the ICJ Statute, which occurs also when a non-member state seperately signs it, does not take to the conclusion that the ICJ has jurisdiction over the state. However, signing does have consequences:
- Parties to the Statute are bound to accept the jurisdiction of the Court to determine its own competence (the competence de la competence) (Art. 36/6)
- The Court has a jurisdiction to indicate interim measures of protection (or provisional measures) to preserve the respective rights of the parties. – Unless the circumstances clearly show that there is no consent to the jurisdiction, the Court will assue the power to indicate such measures, without prejudice to the jurisdiction of the Court to deal with the merits of the case. (Art. 41)
Eg. La Grand Case (Germany v. USA) – Interim measures are binding in character.
- The Court has power to permit third-party intervention in cases in which a state has an interest of a legal nature which may be affected by the decision in the case.

12. The ICJ – Jurisdiction Grounds for Contentious Jurisdiction
a- Jurisdiction by special agreement (compromis) and unilateral application (Consent ad hoc) - It refers to the exercise of jurisdiction over a dispute the existence of which is recognised by both parties (Art. 36(1)). - The form usually applied is special agreement (compromis), however, there is no restriction with regard to form requirement. So, consent ad hoc may arise where the plaintiff state has accepted the jurisdiction by a unilateral application followed by a separate act of consent by the other party, either by a communication to the Court or by taking part in the initiation of proceedings.

13. The ICJ – Jurisdiction
b- Jurisdiction under a Dispute Settlement Clause in a Treaty (consent ante hoc)
Many bilateral or multilateral treaties contain clauses granting jurisdiction in advance over classes of disputes arising from their subject-matter.
E.g. In the Nicaragua Case, the Court decided that jurisdiction existed pursuant to the Treaty of Friendship, Commerce and Navigation between the US and Nicaragua.
 Art. 36(1): The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
These were inserted during the drafting of the Statue with the expectation that the Charter would contain a provision for compulsory jurisdiction, however, no such provision was made.
In the Corfu Channel case (preliminary objections), UK asserted that this article could be referred to Art. 36(1) and (3) of the UN Charter, which provide for reference of legal disputes to the Court on the recommendation of the SC, and this recommendation was binding under Art. 25 of the Charter. The Court did not deal with this point. A joint seperate opinion rejected this view. – The term recommendation is not compulsory. -

14. The ICJ – Jurisdiction
c- Jurisdiction under the Optional Clause (referred to as compulsory jurisdiction) (Consent ante hoc)
Art. 36(2): The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
d. the nature or extent of the reparation to be made for the breach of an international obligation.
Art. 36(3):The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time.
Art. 36(4): Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
-Reciprocity : The lowest common factor in the two declerations is the basis for jurisdiction, thus, a respondent state can take advantage of a reservation or condition in the decleration of the applicant state.
  The commitment ante hoc, in relation to any other state fulfilling the conditions of the Statue, is usually described as a compulsory jurisdiction, although, in the case of jurisdiction by treaty or convention, the basis is ultimately consensual.

15. The ICJ - Jurisdiction d- forum prorogatum (Concent post hoc)
Rules OF THE COURT: Section c. Proceedings before the Court
Subsection 1. Institution of Proceedings
Article 38
5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.
- If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, 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.
Consent may take the form of an agreement on the basis of successive acts of the parties, and the institution of proceedings by unilateral application is not limited to cases of compulsory jurisdiction.
- Informal agreement, agreement inferred from conduct, or a formal agreement, with the condition that it was done after the initiation of the proceedings may refer to forum prorogatum.

16. The ICJ – Jurisdiction
Some conditions and reservations to be discussed: Matters of domestic jurisdiction: Taken into consideration by the Court when a preliminary objection or a plea on the merits arises. A reservation on the subject would be redundant and possibly incompatible with the Statute of the Court, since it may contradict with competence de la competence, thus, not being a genuine acceptance of jurisdiction ante hoc. Eg. 1946, US decleration with a reservation of ‘disputes with regard to matters which are essentially within the domestic jurisdiction of the USA as determined by the USA.’ , which was followed by seven other states as an ‘automatic’ or ‘peremptory’ reservation. Time limits and reservations ratione temporis: Declerations may be for a term of years, and some are expressed to be terminable after, for instance, six months notice and some immediately on notice to the SG. – weakens the system of compulsory jurisdiction, however, was not regarded as incompatable with the Statute. The Court stated in the Nicaragua case, that in the absence of such a reservation, notice of termination of a decleration can be given by analogy to the Law of Treaties. (See Art. 58/2 of the VC of 1969) Reservation of past disputes as a type of reservation ratione temporis: Indeed, some disputes often have a long history and the parties may not want this dispute to be handled by the Court. The Court has taken the view that the limitation applies only to situations or facts which are the source, the real cause, of the dispute.

17. The ICJ – Jurisdiction Other jurisdictional issues to note
* Transferred jurisdiction:
When the Statute was redrafted in 1945, it aimed to save the compromissory clauses under treaties or conventions as the basis of jurisdiction the Permanent Court of Justice.
Art. 36(5): Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
Art. 37: Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.
Limitations: The treaty or convention must be in force between the litigating states, and all the parties to the dispute must be also parties to the new Statute
Q: Does the time when the state became a party to the new Statue matter?
The ICJ decided in the Barcelona Traction case that it was irrelevant. (Spain was not a party to the Statute before the dissolution of the Permanent Court in 1946.)

18. The ICJ - Jurisdiction
*Jurisdiction to decide ex aequo et bono Art. 38(1): The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. (2): This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

19. The ICJ - Jurisdiction B- The Advisory Jurisdiction of the Court
Art. 65:
1. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question.
Art. 96 of the UN Charter:
1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

20. The ICJ - Jurisdiction
Advisory Jurisdiction * The WHO is one of the specialized agencies authorized to request an advisory opinion from the ICJ. In 1993, it posed the question of whether, in view of the health and environmental effects, “the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law including the WHO Constitution” - This request led the Court to opine on the schope of its advisory opinion jurisdiction. Excerpt from the ICJ’s Advisory Opinion: “ The question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects…” (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ, July 8)

21. The ICJ - Jurisdiction
 The origin of many requests in actual disputes, and the very nature of the judicial function have given a contentious aspect to advisory proceedings.
Art. 68: In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.
Although there is no seperate proceeding to deal with preliminary objections as in the contentious proceedings, objections to jurisdiction may ocur here:
- With regard to the incapacity of the requesting party either in limine, or
- In relation to the subject matter of the request, as where a plea of domestic jurisdiction is made.
Eg. for the incapacity of the requesting party: Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in an Armed Conflict (request by the WHO)
- Objections were also made with regard to political issues. The Court decided that, whatever implications it may have, the interpretation of relevant treaty provisions referred to a legal question.
- It was also asserted that the Court should decline requests pointing to the discreation of the Court in the matter of advisory jurisdiction. This view was rejected by the Court, claiming that it is an organ of the UN and a request for an advisory opinion should, in principle, not be overturned.

22. The ICJ - Jurisdiction
The GA and the SC may seek an AO with regard to ANY legal question, unlike the specialized agencies. Although the ICJ, in theory, “has discretionary powers to decline to give an advisory opinion even if the conditions of jurisdiction are met”, in practice, it never did so, by virtue of being one of the principle organs of the UN.
See, paras. 44, 46 and 47 of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004.

23. The ICJ
A brief evaluation: PCIJ : – 33 contentious cases and 28 requests for advisory opinions ICJ: – more than 130 contentious cases, and about 25 requests for advisory opinions.  Acceptance of compulsory jurisdiction under the optional clause has been slow to develop.  Reasons for the reluctance of states to resort to the ICJ: - The political fact that taking another state before the Court is often regarded as an unfriendly act - The suitibilaty of other tribunals and other methods of review for both regional and technical matters - The general conditions of international relations - A preference for the flexibility of arbitration in comparison with a compulsory jurisdiction Influential aspects: - The development of international law as a whole as a result of its jurisprudence and in the giving of advisory opinions on the interpretation of the UN Charter and other aspects of law of international organizations The Court did not only apply, but also developed the law. It did not hesitate to touch upon political issues when it pronounced on the interpretation of the Charter in its advisory opinions.