The fragmentation of the International Court of Justice

The ICJ or World Court is the judicial organ of the United Nations. It was established in 1945 concurrently with the adoption of the UN Charter. It succeeded the Permanent Court of International Justice which was established in 1921 but phased out after the 2nd World War.

The judicial settlement of disputes in international relations is different from the functions of municipal courts. The ICJ lacks compulsory jurisdiction. It was decided during the drafting of the ICJ Statute that States, being independent and sovereign, should not be subjected to compulsory process unless they agree to submit to that process. Essentially, there is also no obligation in international law to settle disputes and the modality and procedures for settlement rest upon the consent of the State parties. But it must be borne in mind that there are other means of settlement in the international field such as those participated in by political organs like the General Assembly and the Security Council not to mention the accepted pacific mode of negotiations, good offices, mediation and arbitration. In fact, judicial settlement may also encompass the functions and activities of ad hoc tribunals and many of these tribunals have been established, such as the UN Tribunal in Libya, the tribunal in Eritrea, the arbitral tribunal on the issue of German external debts, the Iran US claims tribunal, etc.

Contentious cases and advisory opinions

The ICJ acquires jurisdiction on contentious issues on the basis of consent. Only  States maybe parties in contentious cases. Article 36 of the Statute describes the instances where the State parties may submit to the court’s jurisdiction such as by special agreement and consent provided for under specified treaties calling for dispute resolution. These disputes may concern the interpretation of a treaty, any question of International Law, and the existence of a fact which establishes breach of an International obligation.

The Court may render advisory opinions on any legal question at the request of specified UN bodies and agencies. Advisory opinions are meant as a means by which the UN agencies could seek the Court’s help in deciding complicated legal issues. They are consultative in character and specifically binding on particular agencies. When deciding cases, the Court applies International Law as summarized in Article 38 of the Court’s Statute referring to International Conventions, Customs, the General Principles of Law, teachings and writings of the most highly qualified publicists and when the parties agree the Court may decide under the principle of ex aequo et bono (in justice and fairness).

Seat of the court and composition

The seat of the ICJ is at the Hague, Netherlands. The Court is composed of 15 judges elected to nine-year terms by the UN General Assembly and the Security Council. Judges maybe re-elected. They may act in full Court or in chambers composed of three or more judges. A quorum of nine judges shall suffice to constitute the Court. A judgment given by any of the chambers shall be considered as rendered by the Court. Judges may also deliver separate dissenting opinions.

The judges choose their own president and vice-president and the current judges of the Court are: President, Dame Rosalyn Higgins of the United Kingdom and vice-president, Awn Shawkat Al-Khasawneh of Jordan. The other Judges to complete the 15 line-up are: Ranjeva of Madagascar, Jiuyong of China, Koroma of Sierra Leone, Aranguren of Venezuela, Buergenthal of US, Owada of Japan, Simma of Germany, Tomka of Slovakia, Abraham of France, Keith of New Zealand, Sepulveda of Mexico, Bennouna of Morroco and Skotnikov of Russia. Five Judges elected to the Court and now serving their term, Al-Khasawneh, Simma, Tomka, Sepulveda and Bennouna came from the Geneva based International Law Commission (ILC), the body established under the authority of Article 13 of the UN Charter to promote the progressive development of International law and its codification. The presence now of former ILC members in the Court is not new. Traditionally, they move to the Court after serving in the Commission.

There is nothing in the Statute that requires judges to come from different  continents but evident in the present composition is that the judges do come from different continents. Owada of Japan, Al-Khasawneh of Jordan and Jiuyong of China come from Asia; Aranguren of Venezuela and Sepulveda of Mexico from Latin America; Ranjeva of Madagascar, Koroma of Sierra Leone and Bennouna of Morroco from Africa. This distribution by continents although not in the Statute is obviously followed when the Judges are nominated and elected.

The fragmentation of the court

Former President of the ICJ, Steven Schebel of the US, in one of the Court’s regular meetings with the International Law Commission at Geneva and in answer to a query during the meeting admitted that the emergence of many International Organizations has somewhat affected the Court’s reach or involvement in some crucial issues ripe for judicial settlement. He, of course, said that the Court is still saddled with many cases, contentious as well as advisory. He specifically referred as examples to the dispute settlement mechanism of the Law of the Sea Tribunal (UNCLOS), the International Sea-Bed Authority; the dispute settlement process under the World Trade Organization (WTO) or the quasi-judicial function regarding trade disputes by and between State parties, Commissions of Inquiry set up by the International Labour Organization. Disputes referred to these organizations involve State parties. In fact, the issue of what is the most reasonable forum to adjudicate trade and environment disputes, between the ICJ and the GATT/WTO, has been raised wherein the ICJ had ruled that it is in a position to adjudicate trade and environmental disputes where both sides consent (Lakshman Guruswamy, The Annihilation of the Sea Turtles: World Trade Organization Intransigence and US Equivocation 30 Envtl. L. Rptr. 10261, 10275 (2000) (Sea Turtles). Similarly, in the case concerning maritime delimitations and territorial questions between Qatar and Bahrain (1994 ICJ 112), the issue of forum could have entered the dispute were it not for the exchange of letters between the foreign ministers from both countries wherein they agreed to refer the dispute to the ICJ. There are also other processes tantamount to judicial settlement such as the Arbitral process. As stated, State Parties in the crafting of treaties may agree to refer to a pre-determined body or tribunal for the resolution of their disputes. Even the UN Security Council may establish ad hoc tribunals. All these developments may affect ICJ’s role in judicial dispute settlement. But it is not to be denied that through all these years, the ICJ has contributed to the development of a coherent body of Jurisprudence and has maintained judicial consistency in International Law.

Due to the ICJ’s lack of compulsory Jurisdiction, the alternative is the Optional Declarations. But these declarations for the Court to acquire jurisdiction has restricted the Court’s entry into many crucial international issues. State parties normally desist from submitting their cases for judicial settlement. This is exactly what had happened to the Philippine claim over Sabah in North Borneo with Malaysia refusing to refer the matter to the Court.

(Writer served as 1st Vice-Chairman, International Law Commission)