International Court of Justice and International Disputes

Is the International Court of Justice an effective mechanism for the peaceful settlement of international disputes?

Introduction

Since the Hague Convention 1899, The peaceful settlement of international disputes became a fundamental principle of international relations, and adopted by the League of Nations in 1920, which paid high attention to international judiciary, and tried to establish a mechanism to force States to resolve their disputes before develop into war, the efforts which led to the establishment of the Permanent Court of International Justice (PCIJ) by Article 14 of the Treaty of the League of Nations. Although this court established by the League of Nations but its rules and procedures was independent. World War II in 1939 finished the Permanent Court of International Justice, as well as the League of Nations.

At the San Francisco, during the discussions of the Charter of the United Nations, there was an important political decision to establish an international tribunal with keeping the Permanent Court of International Justice working. This decision was reflected in articles 92 and 93 of the Charter of the United Nations. International Court of Justice where founded as the judicial body to be subordinate of the United Nations and its Statute is an integral part of the Charter of the Organization, and that members of the United Nations are members of the special system of the Court.

The International Court of Justice bears a great responsibility in solving international conflicts, the United Nations Charter refers in its first article to the lofty goals is “to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;.”. International Court of Justice Has been established to achieve those goals, and establish justice and to avoid wars, as the Court is the main reference in international law and its interpretation and its applications, so it does not take a decision on international law without its opinion.

Establishing The International Court of Justice

Despite the failure of the League of Nations and all its institutions in the maintenance of international peace and security, and the outbreak of World War II, but the idea of establishing an international tribunal to settle disputes between States has been present in the minds of the Allied powers during the SWW.

The idea of the International Court of Justice was one of the main ideas presented at the time of SWW, the allied powers made some suggestions about establishing a new world organization after the end of the war to play a leading role in maintaining international peace and security. These bore fruit in the adoption of the UN Charter, which was signed on 26 June 1945( [1] ).

The reputation of Permanent Court of International Justice (PCIJ), unlike that of the League of Nations, had not been damaged by the failure of collective security in the interwar period. It had developed a tradition and a prestige by which the new Court was to benefit( [2] ). In consequence of this, the San Francisco Conference in 1945 witnessed disagreement among the participants regarding the question of whether to keep the PCIJ or establish a new court. Two different views were expressed. Some participants were in favour of keeping the PCIJ and introducing some amendments to its Statute corresponding with the new needs of the replacement of the league if Nations by the UN, this view was based on the fact that there were in existence several hundred international treated containing the fact so-called compromissory clause, providing that in the event of a dispute the PCIJ should have the power to interpret the treaty, and that these treaties, despite the war, would probably continue in force. Conversely, it was noted that, if there was an intention to establish a court as part of the post-war organization, it would be technically easier to adopt a new court rather than revive the PCIJ( [3] ).

However, since many of the enemy and neutral States continued to be parties to the old Statute, it was found technical easier to accomplish the necessary changes by the adoption of a new Statute and the creation of a new Court( [4] ).

Placing the peace creating mission of the International Court of Justice (ICJ) as the top priority began even in the preparatory materials at the San Francisco Conference, Quoting from the Report of the First Committee of the Fourth Commission: “In establishing the International Court of Justice, the United Nations hold before a war-stricken world the beacons of Justice and Law and offer the possibilities of substituting orderly judicial processes for the vicissitudes of war and the reign of brutal force.” These words expressed the hopes and expectations of the majority of countries( [5] ).

Every Article of Chapter VI of the United Nations Charter on the “Pacific Settlement of Disputes” refers to disputes “the continuance of which is likely to endanger the maintenance of international peace and security”, although in Chapter XIV on “the International Court of Justice” there is no such narrow orientation. In Chapter VI there is no preference for judicial settlement, the entire Chapter points towards political proceedings within the framework of the Security Council if the parties to a dispute threatening the peace do not settle it by one of the methods specified in Article 33( [6] ).

Also, it should be noted that when the Security Council is seized of a dispute likely to endanger the maintenance of international peace and security, it may, under Article 36 recommend appropriate procedures or methods of adjustment, and: “In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court”( [7] ).

There can therefore be no doubt that, despite the freedom of choice conferred by Article 33, the view of the United Nations as expressed in the Charter is that the Court constitutes the most appropriate means of peaceful settlement of legal disputes( [8] ).

Organization of the Court

According to Chapter One of the Statute of the International Court of Justice, the Court consists of 15 judges elected by the General Assembly of the United Nations and its Security Council for nine years. Elections are held every three years for a third of the seats, and may be re-nomination of retired judges. Members of the Court does not represent their governments but are independent judges. The judges must be to have the qualifications required for appointment to the highest judicial offices in their country, or be qualified lawyers arguing in international law. Must reflect the composition of the court represent the major civilizations and the principal legal systems in the world( [9] ).

Competence of the Court

Chapter Two of Statute of the International Court of Justice had defined the Competence of the Court, and for the purpose of our essay we should indicate to the text of Article 36 of the Statute which stated that( [10] ):

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. … 4. … 5. … 6. …

And Article 38, which Stated that( [11] ):

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.

The above two Articles represented the foundation for the Court in dealing with international disputes.

In general and through the review of the Statute of the International Court of Justice, we can defined the jurisdiction of the Court in two parts( [12] ):

First: Jurisdiction (Judgment): Court will hear disputes between States submitted to each other, and does not consider any issues raised from individuals or any public or private bodies, and the Court shall consider any issue or dispute whatever the significance or gravity of its own, but must be presented by the two opposing sides together; in addition the court’s jurisdiction is optional( [13] ).

Second: The advisory opinion: Bodies that have the right to request an advisory opinion or legal advice is the General Assembly of the United Nations and the Security Council only. As stated in Article 96 of the Charter of the United Nations, branches of the United Nations or its specialized agencies can request advisory opinions from the International Court of Justice with respect to any matter of its competence, if permitted by the Assembly( [14] ).

Consequently, the Court has a double role: to settle international disputes 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( [15] ).

Unlike judgments, advisory opinions are only consultative and not binding as such on the requesting bodies. (however certain instruments can provide in advance that the advisory opining shall be binding. But they carry political weight and are complies with in most cases, some advisory opinions have significantly altered the course of the development of international law( [16] ).

The ICJ and the International Disputes

The International Court of Justice, as the principal judicial organ of the United Nations, is the only truly universal judicial body. It is open to all States of the international community. It enjoys a comprehensive subject-matter jurisdiction embracing all aspects of public international law, yet its effective jurisdiction remains consensual and constrained( [17] ).

The ICJ is often thought of as the primary means for the resolution of disputes between States, and in fact the Court is well-recognized for its significant contribution to the development of international law. However, the Court has not operated at full capacity. Only four or five cases are referred to the Court for judicial settlement every year. There are a number of reasons for this. Foremost among these is the character of the Court itself. According to widespread view, the limited nature of the Court’s jurisdiction is the essential cause of its ineffectiveness( [18] ).

We can note many factors influence the ability of the International Court of Justice to undertake its role as an international instrument to settle and solve international disputes, the most important of these factors are: alternative dispute settlement arrangements made by states, the so- called proliferation of international tribunals, and the fact questions relating to major areas of international law, such as those dealing with trade, finance and investments, are never brought by states before the court( [19] ).

Even though the ICJ was expected to become the “principal judicial organ” for the settlement of disputes among States, this hope never materialized. The Court has been criticized for its limited effectiveness and the many failures it has experienced. The ICJ has not lived up to the hopes of many of its early supporters; that hope being the ICJ, along with the United Nations, would evolve into an international government. To begin with, only a total of 63 States have recognized the compulsory jurisdiction of the Court (with or without reservations) through the “optional clause” system. Less than 100 cases in more than 50 years is not a heavy caseload (though the ICJ’s docket has become more active recently) ( [20] ).

Moreover, many of the cases have not been of great international importance. In more than 20 contentious cases, the ICJ’s jurisdiction or the admissibility of an application (i.e., the complaint) was challenged, with the ICJ dismissing almost half of these cases. Although States have complied with the ICJ’s judgments in many of the cases, recalcitrant States have on occasion refused to comply. The reasons for the ICJ’s limited influence vary. These include the limits on the ICJ’s jurisdiction, its relatively rigid procedure, and the enforceability of its decrees. But its jurisdiction is the biggest systematic problem( [21] ).

Is it a Problem of Confidence?

When reviewing the history of ICJ since 1946, we can easily note that the Court did not acquire the confidence of peoples and nations, until 1975, only 34 countries out of 132 Members of the United Nations dealt with the Court, eight of those States had made only once to the Court, and seven of these eight countries are classified geographically so-called (Western Europe or the English-speaking democracies). Among the Islamic countries only Iran and Pakistan who dealt with the Court until 1975. In 1951, Britain raised a complaint regarding the issue of Anglo-Iranian Oil Company, Britain claimed that Iran has violated international law and the concession agreement granted to the company, Iran defended its decision of nationalization of oil that it has the right to sovereignty over their natural resources( [22] ).

In 1994 the Court issued a decision finding that the area of Aouzou id part of the territory of Chad, the area was border dispute between Libya and Chad, which Libya had occupied since 1973( [23] ). In 1991, Qatar announced its consent to raise the dispute with Bahrain over the islands (Daibal) and (dialogue) border to the International Court of Justice to issue its decision( [24] ). Iran made several complaints against the United States, including the issue of hitting Iranian Airbus over the Gulf, the Court sentenced U.S. A to pay compensation to Iran, including also the issue of striking platforms (Nowruz) to extract the oil in the waters of the Gulf. The U.S. had complained about Iran after the occupation of the U.S. Embassy in Tehran on November 4, 1979, and on March 24, 1980 the Court issued a verdict against Iran, but Iran rejected the ruling. During the negotiations the parties in Algeria has been agreed for the release of American hostages was compared with the requirements of the United States to withdraw its case from the Court of Justice, and that what happened( [25] ).

With respect to African states it should be recalled immediately that their confidence in the ICJ was rudely destroyed about 44 years ago, it happened when the Court, in one of the narrowest majorities, and on a rather technical ground, finally dismissed in 1966, the case against South Africa, instituted by Ethiopia and Liberia in 1960. The final decision of the ICJ in the South West Africa cases, rejecting the claim of Ethiopia and Liberia on the technical ground that they lacked sufficient legal interest to be vindicated vis-à-vis South Africa, having, however, decided in 1962 that the two Applicants had the procedural right to institute the proceedings, led to a lot of criticism of the Court. Generally, as was cogently observed, the 1966 decisions was “at best, a painful reminder that international adjudication is suited only to the settlement of trivial questions of highly technical character” and at worst, “an endorsement of South Africa’s racial policies”. As regard the African states, in particular, the decision made them adopt the cynical view that the ICJ was a white man’s court, dispensing white man’s justice( [26] ).

Non-Compulsory Jurisdiction and the Effectiveness of ICJ:

The concept of compulsory jurisdiction has been defined in various ways, though the definitions are similar in essence, for example, according to R.C. Lawson, ” compulsory jurisdiction means the power of a court to decide whether cases unilaterally referred, pursuant to a previous commitment and without the ad hoc consent of the respondent, come within its jurisdiction and, if so to act upon such cases even over the objection of the respondent. C.W. Jenks defines it as follows: “By compulsory jurisdiction we mean competence, which can be effectively referred to unilaterally, without co-operation of the respondent, to define the issue which is the subject matter of the dispute, and to regulate the procedure. In principle B. Maus is also correct in writing that “compulsory jurisdiction means jurisdiction accorded to a court before the dispute arose( [27] ).

Because of non-compulsory jurisdiction, the effectiveness of ICJ has been reduced. With this problem, there are many different ideas, some scholars advocate with compulsory jurisdiction while some scholars don’t. Bingbin Lu suggests that absolute compulsory jurisdiction should not be adopted. The idea of compulsory jurisdiction is utopian. The Court’s jurisdiction was limited when it was create because of preventing the ICJ from becoming a tool of both superpower (USA and former Soviet Union). Bingbin Lu said that to give ICJ compulsory jurisdiction would be too risk. Thus, to avoid this risk, he suggests the idea of establishing an appellate review procedure to review first level decision as the WTO dispute settlement mechanism. He also suggests that UN should reconstruct the international judicial system by creating the International Tribunal for the Law of the Sea and the International Criminal Court. Those new judicial organ may solve the problem by allowing the state more choice to choose. When the state found which court fix to them, they will accept the compulsory jurisdiction of the court( [28] ).

When the International Court hears a case pursuant to a form of compulsory jurisdiction it acts more or less like any ordinary municipal court where parties are subject to jurisdiction without their immediate consent. However, even in cases of compulsory jurisdiction, states must have originally consented to the Court’s jurisdiction. The Court has a general compulsory jurisdiction provision( [29] ), Article 36 (2) which reads:

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( [30] ).

The general compulsory jurisdiction of the ICJ is limited to those disputes where both parties have accepted Article 36(2)( [31] ).

Many writers see that without compulsory jurisdiction, the Court performs ineffectively. Some parties will reject the jurisdiction if they are optional to the jurisdiction. With about one-third of UN member have recognized the compulsory jurisdiction of the Court, the Court still lack of power to settle the dispute if another party of dispute is one state of other two-third. ICJ can not force the sates to accept it’s jurisdiction without the consent of the state. Unlike, domestic jurisdiction, the court has the compulsory jurisdiction and can hear the case which is submit by only one party. Therefore, for the party who is violated by another party has no any mechanism to protect their interest. Without any judicial mechanism to prevent he violation of right, there will be instability in international society. Small and weak states will not equal to the big and powerful states. Powerful states can use the non-compulsory jurisdiction principle to reject the ICJ jurisdiction when they are complained by other states( [32] ).

Political Versus Legal Disputes

One of the most important issues in the role of ICJ in international disputes is the issue of political versus legal disputes. Some views distinction between legal and political disputes, all depends on the will of the states parties to a dispute. If states parties to a dispute demonstrate a willingness to submit it to a pre-constituted international court and a readiness to abide by the decision of the chosen forum, the dispute in question is, ipso facto, suitable for judicial settlement, whether characterized by some as “political” or by others as “legal”. It is also a truism that every dispute indeed involves, or may be analyzed in terms of some legal issues. Few judicial settlements are, in fact, without political consequences ( [33] ).

The Court’s jurisdiction somehow is limited to “legal disputes”. Accordingly, “political disputes” in their entirety are exclude from the Court’s jurisdiction, and if such a disputes is referred to the Court it must decline to adjudicate, this is based on the fact that the normal functions of a Court is to apply the law, which has the effect of preventing the ICJ from deciding disputes of a purely political character( [34] ).

The Court And Preventive Diplomacy

The court is viewed as an important forum, for achieving judicial settlement of a dispute between states, or, as it were, as alternative to their going to war. This traditional role of the Court as a judicial forum has recently been criticized as assigning to the institution a too limited function un the contemporary world. The functions of the ICJ, it has been argued, could be expanded to include those of preventing disputes from escalating into lengthy and expensive judicial proceedings. The Court would thus, where appropriate, perform the function of preventive diplomacy. An earlier view supporting such a role for the Court had been expressed in the course of an effort to articulate some elements of the concept of avoidance of disputes ( [35] ).

There were many proposals produced to enhance the abilities of ICJ and its judicial functions, they made on the occasion of the Centennial Commemoration of the first Peace Conference, the most important of them –as mentioned by (Vicuna, 2004) are:

Acceptance of the compulsory jurisdiction of the ICJ should be explored in respect of a limited number of issues or matters, in view of the fact that the consensual acceptance prevailing today as the general rule is unlikely to change. The present system of reservations to the optional clause could be streamlined. The current acceptance of compulsory jurisdiction in other dispute settlement arrangements dealing with specialized areas of the law, such as trade and investments, should be encouraged.

The advisory role of the ICJ can also be developed as an effective mechanism to deal with questions involving the basic principles of international law. The Secretary General of the UN should be authorized to request advisory opinions on matters pertaining to his competence, ensuring that these requests don’t interfere with political functions of other bodies of the organization.

Because on occasion non-governmental organizations and individuals have heavily politicized international law issues with they are concerned, the suggestion that they also might request advisory opinions from the ICJ does not seem viable, unless strict requirements of professionalism, accountability and transparency are first met.

The Chartres’s arrangements dealing with the maintenance of international peace and security could also be improved to provide for a new mutually reinforcing relationship between the ICJ and the Security Council. Linking up in sequence the operation of Chapters VI and VII of the Charter could ensure a mutual referral of despites between these two organs according to the prevalence of legal or political elements in the cases concerned.

Facilitating the access of international organizations to the contentious jurisdiction of the ICJ is another step that is in line with the enhanced participation of such entities in the international legal system.

A new role for the ICJ can also be envisaged in terms of the referral by other international tribunals, or even by high domestic courts, of questions of general international law arising before them( [36] ).

Conclusion

Some optimistic writers see that the International Court of Justice may have more significant role in the new century in comparison with its historical record. Since the end of the Cold War in the beginning of nineteenth, and collapse of Eastern Bloc, the number of cases referred to the Court has risen significantly. Many cases on the Court List every year, what indicate that the Court start to gain more and more states confidence across the world.

What consolidate this fact, the large number of treaties provide for the references of disputes to the Court and the number of states which accepted the compulsory jurisdiction according to article 36(2) rising progressively.

But that doesn’t mean –by any way- that the International Court of Justice may achieve the goal which was established to achieve in during the next few years. There are still many problems the Court must overcome in order to become an effective tool for the settlement of international disputes within the framework of the United Nations. Some of these problems and ways to solve it briefed by Bingbin Lu, who see that the ICJ has been criticized for its limited effectiveness and the many failures it has experienced. These circumstances have many reasons, such as the time consuming nature of ICJ proceedings, but the most important reason is the extent of the ICJ’s jurisdiction. If we want to see a more efficient ICJ, some reform steps must be taken to solve the jurisdictional problem. But what can the Court do under the Statute as it is now in order to limit its shortcomings? Reforming the Court is not an easy matter. The goal should be achieved step by step. In my opinion the ICJ can construe its jurisdiction broadly when there are differences as to what the scope of its jurisdiction is. Of course the relevant provisions or Optional Clause declaration must be interpreted in a natural and reasonable way. To extend the construction of the ICJ’s jurisdiction does not mean there should be a license to misuse it. The Court can do a much better job of exercising its competence under the current ICJ Statute and in an environment of proliferating international courts and tribunals, if it chooses to interpret its jurisdiction broadly.