Fact Box: International Court of Justice

International Court of Justice was established in 1945 via the UN Charter and its jurisdiction is worldwide. It is located in “The Hague” in Netherlands and has 193 state parties. Current President is Ronny Abraham.

The major functions of the International Court of Justice are to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly.

Presidency of the ICJ

The President and the Vice-President are elected by the Members of the Court every three years by secret ballot. The election is held on the date on which Members of the Court elected at a triennial election are to begin their terms of office or shortly thereafter.  An absolute majority is required and there are no conditions with regard to nationality. The President and the Vice-President may be re-elected.

The President presides at all meetings of the Court; he/she directs its work and supervises its administration, with the assistance of a Budgetary and Administrative Committee and of various other committees, all composed of Members of the Court. During judicial deliberations, the President has a casting vote in the event of votes being equally divided. In The Hague, where he/she is obliged to reside, the President of the Court takes precedence over the doyen of the diplomatic corps.

Judges of the ICJ

The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration.

• Judges serve for nine year terms and may be re-elected for up to two further terms.
• Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court.
• All States parties to the Statute of the Court have the right to propose candidates.
• 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.
• 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.

Jurisdiction of ICJ

The International Court of Justice acts as a world court. The Court has a dual jurisdiction. First, it decides in accordance with international law, disputes of a legal nature that are submitted to it by States. This is called jurisdiction in contentious cases. Second, ICJ gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request. This is called advisory jurisdiction.

How does ICJ work?

As mentioned above, The International Court of Justice entertains two kinds of cases viz.  legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).

• Only States (States Members of the United Nations and other States which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions) may be parties to contentious cases.
• The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction by entering into a special agreement to submit the dispute to the Court or by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a dispute of a given type or disagreement over the interpretation or application of the treaty, one of them may refer the dispute to the Court. The country can also enter into its jurisdiction through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. A number of these declarations, which must be deposited with the United Nations Secretary-General, contain reservations excluding certain categories of dispute.
• Advisory proceedings before the Court are open solely to five organs of the United Nations and to 16 specialized agencies of the United Nations family.
• The United Nations General Assembly and Security Council may request advisory opinions on “any legal question”. Other United Nations organs and specialized agencies which have been authorized to seek advisory opinions can only do so with respect to “legal questions arising within the scope of their activities”.

Sources of international law

When deciding cases, the Court applies international law as summarised in Article 38 of the ICJ Statute provides that in arriving at its decisions the Court shall apply international conventions, international custom, and the “general principles of law recognized by civilized nations”.

• It may also refer to academic writing (“the teachings of the most highly qualified publicists of the various nations”) and previous judicial decisions to help interpret the law, although the Court is not formally bound by its previous decisions under the doctrine of stare decisis. Article 59 makes clear that the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ.
• The Court’s decision binds only the parties to that particular controversy. Under 38(1)(d), however, the Court may consider its own previous decisions. In reality, the ICJ rarely departs from its own previous decisions and treats them as precedent in a way similar to superior courts in common law systems. Additionally, international lawyers commonly operate as though ICJ judgments had precedential value.