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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 exposť 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.

PICT Data obtained from the Project on International Courts and Tribunals (PICT)

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