Jurisdiction of the International Court of Justice
Encyclopedia
The International Court of Justice
has jurisdiction
in two types of cases: contentious issues between states in which the court produces binding rulings between states that agree, or have previously agreed, to submit to the ruling of the court; and advisory opinions, which provide reasoned, but non-binding, rulings on properly submitted questions of international law, usually at the request of the United Nations General Assembly
. Advisory opinions do not have to concern particular controversies between states, though they often do.
Only states may be parties in contentious cases before the ICJ. Individual
s, corporation
s, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organisations. This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of "diplomatic protection
", bring a case on behalf of one of its nationals or corporations.
will contain a compromissory clause, providing for dispute resolution by the ICJ. For instance, Article 32(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
provides for mediation
and other dispute resolution
options, but also states that "[a]ny such dispute which cannot be settled ... shall be referred, at the request of any one of the States Parties to the dispute, to the International Court of Justice for decision". Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. Since the 1970s, the use of such compromissory clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration
. In 1987, upon the initiative of Mikhail Gorbachev, all of the permanent members of the Security Council began negotiations for expanding the compulsory jurisdiction of the ICJ. The content of these negotiations is to date unknown, and no agreements were reached. See Richard B. Bilder, "Judicial Procedures Relating to the Use of Force," ch. 28 in Lori Damrosch & David Scheffer, Law and Force in the New International Order (1991).
Not all countries accept the compulsory jurisdiction of the International Court of Justice, ICJ. For example, Australia accepts compulsory ICJ jurisdiction "with reservations" whereas Brazil has not accepted compulsory ICJ jurisdiction.
The advisory opinions of the court are influential and widely respected interpretations of the law, but they are not authoritative, and they are inherently non-binding under the Statute of the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.
. The Court had to consider an application from Libya
for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the UK
and USA. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention
, could no longer be upheld since the action was justified by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations.
There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case (Jurisdiction) that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.
Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the security council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to enforce consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party".
For example, in Nicaragua v. United States the United States of America
had previously accepted the Court's compulsory jurisdiction upon its creation in 1946 but withdrew its acceptance following the Court's judgment in 1984 that called on the United States
to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua
. In a split decision, the majority of the Court ruled the United States
was "in breach of its obligation under customary international law not to use force against another state" and ordered the US pay reparations
(see note 2), although it never did.
Examples of cases include:
The last example can be used as evidence of the Court's failure to take on politically controversial cases; as the Court has no means to enforce its rulings, its survival is dependent on its political legitimacy. That would be endangered if it constantly came with rulings which states have no interest of taking into consideration. This is one of the Court's major shortcomings: its rulings must be considered in a political context.
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
has jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
in two types of cases: contentious issues between states in which the court produces binding rulings between states that agree, or have previously agreed, to submit to the ruling of the court; and advisory opinions, which provide reasoned, but non-binding, rulings on properly submitted questions of international law, usually at the request of the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
. Advisory opinions do not have to concern particular controversies between states, though they often do.
Contentious issues
The key principle is that the Court only has jurisdiction on the basis of consent. The court has no true compulsory jurisdiction. Jurisdiction is often a key question for the Court, because it is challenged by the respondent. At the Preliminary Objections phase, a respondent may challenge (i) jurisdiction and/or (ii) admissibility of the case. Article 36 outlines four bases on which the Court's jurisdiction may be founded.Only states may be parties in contentious cases before the ICJ. Individual
Individual
An individual is a person or any specific object or thing in a collection. Individuality is the state or quality of being an individual; a person separate from other persons and possessing his or her own needs, goals, and desires. Being self expressive...
s, corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases, although the Court may receive information from public international organisations. This does not preclude non-state interests from being the subject of proceedings if one state brings the case against another. For example, a state may, in case of "diplomatic protection
Diplomatic protection
In international law, diplomatic protection is a means for a State to take diplomatic and other action against another State on behalf of its national whose rights and interests have been injured by the other State...
", bring a case on behalf of one of its nationals or corporations.
Special agreement
First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on "special agreement" or "compromis"). This method is based on explicit consent and is, perhaps, the most effective basis for the Court's jurisdiction. It is effective because the parties concerned have a desire for the Court to resolve the dispute, and are thus more likely to comply with the Court's judgment. Parties will usually define the nature of the dispute between them and the legal questions on which they wish the Court to rule.Compromissory clause
Second, 36(1) also gives the Court jurisdiction over "matters specifically provided for ... in treaties and conventions in force". Most modern treatiesTreaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
will contain a compromissory clause, providing for dispute resolution by the ICJ. For instance, Article 32(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 is one of three major drug control treaties currently in force. It provides additional legal mechanisms for enforcing the 1961 Single Convention on Narcotic Drugs and the 1971 Convention on...
provides for mediation
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
and other dispute resolution
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.-Methods:Methods of dispute resolution include:* lawsuits * arbitration* collaborative law* mediation* conciliation* many types of negotiation* facilitation...
options, but also states that "[a]ny such dispute which cannot be settled ... shall be referred, at the request of any one of the States Parties to the dispute, to the International Court of Justice for decision". Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. Since the 1970s, the use of such compromissory clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
. In 1987, upon the initiative of Mikhail Gorbachev, all of the permanent members of the Security Council began negotiations for expanding the compulsory jurisdiction of the ICJ. The content of these negotiations is to date unknown, and no agreements were reached. See Richard B. Bilder, "Judicial Procedures Relating to the Use of Force," ch. 28 in Lori Damrosch & David Scheffer, Law and Force in the New International Order (1991).
Optional clause declarations
Thirdly, Article 36(2) allows states to make declarations accepting the Court's jurisdiction as compulsory ("optional clause declarations").Not all countries accept the compulsory jurisdiction of the International Court of Justice, ICJ. For example, Australia accepts compulsory ICJ jurisdiction "with reservations" whereas Brazil has not accepted compulsory ICJ jurisdiction.
Succession from PCIJ
Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice's statute. Article 37 of the ICJ's statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.Advisory opinion
An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. The Court's advisory procedure is otherwise modelled on that for contentious proceedings, and the sources of applicable law are the same. In principle the Court's advisory opinions are consultative in character and as such do not generally result in judgments that aim to resolve specific controversies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be specifically binding on particular agencies or states.The advisory opinions of the court are influential and widely respected interpretations of the law, but they are not authoritative, and they are inherently non-binding under the Statute of the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.
The ICJ and the Security Council
The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992, in the Pan Am casePan Am Flight 103 bombing trial
The Pan Am Flight 103 bombing trial began on 3 May 2000, 11 years, 4 months and 13 days after the destruction of Pan Am Flight 103 on 21 December 1988...
. The Court had to consider an application from Libya
Libya
Libya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the UK
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and USA. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention
Montreal Convention
The Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air, is a treaty adopted by a Diplomatic meeting of ICAO member states in 1999. It amended important provisions of the Warsaw Convention's regime concerning compensation for the...
, could no longer be upheld since the action was justified by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations.
There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case (Jurisdiction) that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.
Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the security council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to enforce consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party".
For example, in Nicaragua v. United States the United States of America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
had previously accepted the Court's compulsory jurisdiction upon its creation in 1946 but withdrew its acceptance following the Court's judgment in 1984 that called on the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua
Nicaragua
Nicaragua is the largest country in the Central American American isthmus, bordered by Honduras to the north and Costa Rica to the south. The country is situated between 11 and 14 degrees north of the Equator in the Northern Hemisphere, which places it entirely within the tropics. The Pacific Ocean...
. In a split decision, the majority of the Court ruled the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
was "in breach of its obligation under customary international law not to use force against another state" and ordered the US pay reparations
War reparations
War reparations are payments intended to cover damage or injury during a war. Generally, the term war reparations refers to money or goods changing hands, rather than such property transfers as the annexation of land.- History :...
(see note 2), although it never did.
Examples of cases include:
- A complaint by the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
in 1980 that IranIranIran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
was detaining American diplomats in TehranTehranTehran , sometimes spelled Teheran, is the capital of Iran and Tehran Province. With an estimated population of 8,429,807; it is also Iran's largest urban area and city, one of the largest cities in Western Asia, and is the world's 19th largest city.In the 20th century, Tehran was subject to...
in violation of international law. - A dispute between TunisiaTunisiaTunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area...
and LibyaLibyaLibya is an African country in the Maghreb region of North Africa bordered by the Mediterranean Sea to the north, Egypt to the east, Sudan to the southeast, Chad and Niger to the south, and Algeria and Tunisia to the west....
over the delimitation of the continental shelf between them. - A dispute over the course of the maritime boundaryMaritime boundaryMaritime boundary is a conceptual means of division of the water surface of the planet into maritime areas that are defined through surrounding physical geography or by human geography. As such it usually includes areas of exclusive national rights over the mineral and biological resources,...
dividing the U.S. and CanadaCanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in the Gulf of MaineGulf of MaineThe Gulf of Maine is a large gulf of the Atlantic Ocean on the east coast of North America.It is delineated by Cape Cod at the eastern tip of Massachusetts in the southwest and Cape Sable at the southern tip of Nova Scotia in the northeast. It includes the entire coastlines of the U.S...
area. - A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organisation regarding their actions in the Kosovo WarKosovo WarThe term Kosovo War or Kosovo conflict was two sequential, and at times parallel, armed conflicts in Kosovo province, then part of FR Yugoslav Republic of Serbia; from early 1998 to 1999, there was an armed conflict initiated by the ethnic Albanian "Kosovo Liberation Army" , who sought independence...
. This was denied on 15 December 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application.
The last example can be used as evidence of the Court's failure to take on politically controversial cases; as the Court has no means to enforce its rulings, its survival is dependent on its political legitimacy. That would be endangered if it constantly came with rulings which states have no interest of taking into consideration. This is one of the Court's major shortcomings: its rulings must be considered in a political context.