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International Court of Justice

History
The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which had been experiencing a decline in activity for several years. After its last public meeting on 4 December 1939 and its last resolution on 26 February 1940, the Permanent Court of International Justice essentially ceased judicial activity and no election of judges took place. In 1940, the court moved to Geneva, where one judge remained in The Hague along with several officials from the Dutch nationality register. Despite the war, the future of the court and the creation of a new international political order had to be considered.

In 1942, the United States Secretary of State and the United Kingdom Secretary of State advocated the establishment or re-establishment of an international court after the war, and the Inter-American Jurisprudence Committee recommended that the jurisdiction of the PCIJ be expanded. . In early 1943, the United Kingdom government took the initiative and invited a number of experts to London to form an informal Inter-Allied Committee to investigate the matter. This committee, chaired by Sir William Malkin (United Kingdom), held 19 meetings attended by lawyers from 11 countries.

In her report published on 10 February 1944, she recommended:

  • That the statute of any new international court should be based on the statute of the Permanent Court of International Justice;
  • That the new court should retain advisory jurisdiction;
  • That accepting the jurisdiction of the new court should not be mandatory;
  • The court should not have jurisdiction to deal with essentially political matters.


Meanwhile, on October 30, 1943, after the conference, China, the USSR, the United Kingdom, and the United States issued a joint statement in which they recognized the need "to establish as soon as possible a general international organization, based on the principle of the so-called sovereign equality of all states at peace and membership open to all such states, large and small, to maintain international peace and security".

This declaration led to an exchange of views between the four powers at Dumbarton Oaks (United States of America) and resulted in the publication on 9 October 1944 of proposals for the establishment of a general international organization which would include an international court of justice. Subsequently, a meeting of a committee of lawyers representing 44 states was convened in Washington in April 1945. This committee, under the chairmanship of G. H. Hackworth (United States of America), was entrusted with the preparation of a draft Statute for the future International Court of Justice to be submitted to the San Francisco Conference, which met from April to June 1945 to prepare the United States proposal. Charter of Nations.

The draft statutes prepared by the committee were based on the PCIJ statute and were therefore not a completely new text. Nevertheless, the committee felt obliged to leave open a number of questions which it believed the conference should decide: Should a new court be created? In what form should the court's mission as the chief judicial organ of the United Nations be stated? Should the court's jurisdiction be mandatory and, if so, to what extent? How should judges be elected? The final decisions on these points and on the final form of the statute came at a conference in San Francisco attended by 50 states.

The conference decided against compulsory jurisdiction and in favour of the creation of an entirely new court that would be the main organ of the United Nations, on the same basis as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship. of the Council and the Secretariat and whose statute will be attached to the Charter and will be an integral part of it.

The main reasons that led the conference to decide to create a new court were as follows:

  • Since the court was to be the main judicial organ of the United Nations, it was considered inappropriate for the Permanent Court of International Justice to fill this with its ties to the League of Nations, which was itself before dissolution. role;
     
  • The creation of the new court was more in line with the Charter's provision that all member states of the United Nations would ipso facto be parties to the court's statute;
     
  • Several states that were parties to the PCIJ Statute were not represented at the San Francisco Conference and, conversely, several states represented at the Conference were not parties to the Statute;
     
  • There was a feeling in some quarters that the PCIJ formed part of an older order in which European states controlled the political and legal affairs of the international community, and that the creation of a new court would make it easier for non-European states to play a more influential role. This turned out to be true: the number of members of the United Nations increased from 51 in 1945 to 193 in 2020.


However, the San Francisco Conference felt that some degree of continuity should be maintained, especially since the PCIJ Statute was drawn up based on past experience and seemed to be working well. Thus, the Charter clearly stated that the Statute of the International Court of Justice is based on the Statute of the PCIJ. At the same time, the necessary steps were taken to transfer as much of the jurisdiction of the PCIJ as possible to the International Court of Justice.

The decision to create a new court in any case necessarily meant the dissolution of its predecessor. The PCIJ met for the last time in October 1945 and decided to transfer its archives and documents to the new International Court of Justice, which, like its predecessor, was to be based in the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946 and the election of the first members of the International Court of Justice took place on 6 February 1946 at the first session of the United Nations General Assembly and Security Council.

In April 1946, the PCIJ was formally dissolved and the International Court of Justice, meeting for the first time, elected as its president Judge Josť Gustavo Guerrero (Salvador), the last president of the PCIJ. The court appointed members of its office (mostly former PCIJ officials) and held an inaugural public hearing on the 18th of the same month. The first case was filed in May 1947. It concerned the incidents in the Corfu Strait and was brought by the United Kingdom against Albania.

Members

The International Court of Justice consists of 15 judges elected for nine-year terms by the United Nations General Assembly and the Security Council. These bodies vote simultaneously but separately. In order to be elected, a candidate must receive a supermajority of votes in both bodies. This sometimes requires several rounds of voting.

To ensure some continuity, one-third of the court is elected every three years. Judges can be re-elected. If a judge dies or resigns during his term of office, a special election is held as soon as possible to select a judge to fill the unexpired portion of the term.

Elections are held in New York (United States) during the annual fall session of the General Assembly. Judges elected for three-year terms begin their terms on February 6 of the following year, after which the court holds a secret ballot to elect a president and vice-president, who serve three-year terms.

All states that are parties to the court's statute have the right to nominate candidates. Such proposals are not made by the government of the state concerned, but by a group consisting of members of the Permanent Court of Arbitration (see History) appointed by that state, i.e. four lawyers who may be called as members of the arbitral tribunal. under the Hague Conventions of 1899 and 1907.

In the case of countries not participating in the Permanent Court of Arbitration, the nomination is submitted by a group established in the same manner. Each group may propose up to four candidates, of whom no more than two may be its nationals, while the others may be from any country, regardless of whether it is a party to the Statute or has declared that it accepts the compulsory jurisdiction of the State. ICJ. The names of the candidates must be communicated to the Secretary-General of the United Nations within a time limit of his own choosing.

Judges must be selected from persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judicial offices or who are legal advisers with recognized expertise in international law.

The court may not include more than one national of the same state. Furthermore, the Court as a whole must represent the major forms of civilization and the major legal systems of the world.

Once elected, a member of the court is not a delegate of the government of his own country or of any other state. Unlike most other bodies of international organizations, the court does not consist of representatives of governments. The members of the Court are independent judges, whose first task before taking office is to make a promise in a public meeting that they will exercise their authority impartially and conscientiously.

In order to guarantee the independence of the Court of Auditors, no member of the Court of Auditors may be dismissed if, in the unanimous opinion of the other members, he no longer fulfils the required conditions. This never actually happened.

The members of the Court enjoy privileges and immunities comparable to the privileges and immunities of the head of a diplomatic mission when performing the activities of the Court. In The Hague, the president takes precedence over the doyen of the diplomatic corps, followed by the vice president, followed by judges and ambassadors. Each member of the Court of Auditors receives an annual salary consisting of a basic salary (which for 2018 is $187,000) and, after adjustment, a special additional allowance of $25,000 for the President.

The adjusted multiplier changes every month and depends on the UN exchange rate between the US dollar and the euro. Upon leaving the court, judges receive an annual pension equal to half of their annual basic salary after a nine-year term of office.

Presidency

The chairman and deputy chairman are elected by the members of the Court of Auditors every three years by secret ballot. Elections are held on or shortly after the commencement date of the term of office of the members of the Court of Auditors elected in the triennial elections. A supermajority is required and there are no nationality requirements. The chairman and vice-chairman can be elected repeatedly.

The President presides over all sessions of the Court; directs its work and supervises its administration with the assistance of the Budget and Administrative Committee and various other committees, all of which are composed of members of the Court of Auditors. During court hearings, the president has a casting vote in the event of a tie.

In The Hague, where he is obliged to reside, the president of the court takes precedence over the doyen of the diplomatic corps.

The President receives a special supplemental allowance of $15,000 per year in addition to his annual salary.

The vice-chairman represents the chairman during his absence, in the event of his inability to perform his duties or in the event of a vacancy in the chairmanship. For this he receives a daily allowance. In the absence of the Vice President, this role falls to the Chief Justice.

On February 8, 2021, the Court elected Judge Joan E. Donoghue (United States of America) as President and Judge Kirill Gevorgian (Russian Federation) as Vice-President.

Judges and HOC

According to Article 31, paragraphs 2 and 3 of the Statute of the Court of Justice, a State which is a party to proceedings before the International Court of Justice and which does not have a judge of its nationality on the panel may choose a person to be an ad hoc judge. in this particular case under the conditions set out in Articles 35 to 37 of the Court's Rules of Procedure. Before taking office, ad hoc judges must take the same oath as an elected member of the court. They are not necessarily (and often are not) nationals of the country that designates them.

Ad hoc judges participate in any decision on a case in full equality with their colleagues and receive remuneration for each day of their duties, i.e. each day spent in The Hague to participate in the work of the court, plus each day spent hearing the case outside The Hague.

A party must announce its intention to choose an ad hoc judge as soon as possible. In cases where there are more than two parties to the dispute, which is not an isolated phenomenon, the rule applies that parties acting in the same interest are limited to a single ad hoc judge among themselves, and if one of them already has a judge of his nationality on the dock, they have no right to elect ad hoc judges at all.

There are therefore various possibilities, of which they have actually occurred in practice: two regular judges with the nationality of the parties; two judges ad hoc; a regular judge of the nationality of one of the parties and an ad hoc judge; neither a regular judge who has the nationality of one of the parties, nor an ad hoc judge.

It follows that the composition of the International Court of Justice will vary from case to case and that the number of judges in a given case is not necessarily 15. There may be fewer if one or more elected judges are not sitting. or up to 16 or 17 if there are ad hoc judges; theoretically, there can be more than 17 judges in the panel, if there are several parties in the case who do not act in the same interest.

The composition of the Court can also sometimes differ at different stages of the case: in other words, the composition is not necessarily the same for preliminary measures, preliminary objections and the merits of the case. However, once the Court of Justice is finally constituted for a given stage of the case, i.e. from the commencement of oral proceedings at that stage until the judgment relating to it is delivered, its composition will not change.

Legal scholars do not seriously question the right of an elected judge to sit in a case where he has the nationality of one of the parties. From the outcome of the court's vote and from the independent and divergent opinions of the judges, it is clear that these judges often voted against proposals submitted by their own country.

The institute of ad hoc judges, on the other hand, did not receive unanimous support. While the Inter-Allied Committee of 1943 argued that "countries will not really feel full confidence in the decision of a court in a case involving them unless the court includes any judge of their own nationality, especially if the judge includes the nationality of the other party", some members of the Sixth expressed committee of the United Nations General Assembly during the discussions on the role of the Court from 1970 to 1974, the view "that the surviving institutions of the old arbitral proceedings were justified only by the new character of international judicial jurisdiction and would undoubtedly disappear as soon as that jurisdiction became more firmly established". However, many authors believe that it is useful for the Court to have a judge who is more familiar with the views of one of the parties than elected judges can ever be.

Working of the Court

The Court can hear two types of cases: legal disputes between states that submit them to it (contentious cases) and requests for advisory opinions on legal issues submitted to it by organs and specialized agencies of the United Nations (advisory proceedings).

Contentious Cases

Only states (member states of the United Nations and other states that have become parties to the statute of the Court or that have accepted its jurisdiction under certain conditions) may be parties to contested cases.

The Court is competent to hear a dispute only if the States concerned have recognized its jurisdiction in one or more of the following ways:

  • By concluding a special agreement on bringing the dispute to court;
  • Based on a jurisdiction clause, i.e. typically when they are parties to a contract containing a provision that in the event of a dispute of this type or disagreement over the interpretation or application of the contract, one of them may refer the dispute to court;
  • Reciprocal effect of declarations they have made under the law, each recognizing the Court's jurisdiction as binding in the event of a dispute with another state that has made a similar declaration. A number of these declarations, which must be deposited with the Secretary-General of the United Nations, contain reservations excluding certain categories of disputes.


States have no permanent representatives accredited to the court. They usually communicate with the Secretary through their Minister of Foreign Affairs or their Ambassador accredited to the Netherlands. If they are parties to the proceedings before the Court, they are represented by a lawyer.

An agent plays the same role and has the same rights and obligations as a legal representative or advocate in a national court. But because international relations are at risk, the agent is also, as it were, the head of a special diplomatic mission with the authority to bind a sovereign state.

Receives communications from the Secretary relating to the case and forwards to him all correspondence and submissions, duly signed or authenticated. In public hearings, the plenipotentiary opens the argument on behalf of the government he represents and makes proposals. In general, whenever the represented government is to do a formal act, it is done by the plenipotentiary.

Agents are sometimes assisted by co-agents, deputy agents, or assistant agents, and they always have counsel or attorneys whose work they coordinate to help prepare pleadings and make oral arguments. Since there is no special Bar of the International Court of Justice, there are no conditions that legal representatives or advocates must fulfil to enjoy the rights of defence before it, the only exception being that they must be appointed by the government to do so. .

Driving can be initiated in one of two ways:

  • Through a notice of special agreement: this document, which is bilateral in nature, can be presented to the Court by one or both parties to the proceedings. The subject of the dispute and its parties must be specified in a separate agreement. As there is neither an "applicant" nor a "respondent", in the Court's publications their names are separated by a slash at the end of the official case title, eg Benin/Niger.
     
  • Through a request: a request, which is unilateral in nature, is made by the requesting state against the respondent state. It is intended for communication with the other state and the court code contains stricter requirements for its content. In addition to the name of the party against whom the claim is made and the subject-matter of the dispute, the requesting State must, if possible, state briefly on what basis - by treaty or declaration of acceptance of compulsory jurisdiction - it asserts that the court has jurisdiction and must state briefly the facts and reasons , on which his claim is based. At the end of the official case name, the names of both parties are separated by the abbreviation v. (for Latin versus), e.g. Nicaragua vs Colombia.


Commencement of proceedings before the Court means the day on which the proceedings are commenced, which is the day on which the Registrar receives the special agreement or application. Disputed proceedings involve a written phase in which the parties present and exchange information containing detailed statements of fact and law relied upon by each party, and an oral phase consisting of public hearings in which counsel and lawyers address the court.

Since the Court has two official languages ​​(English and French), anything written or spoken in one language is translated into the other. Written submissions are not made available to the press and public until the oral hearing begins, and only if the parties do not object.

After the oral hearing, the court deliberates and then renders a verdict in open court. The judgment is final, binding for the parties to the proceedings and cannot be appealed (at most it can be subject to interpretation or revision when new facts are discovered). Any judge who wishes may add his opinion to the judgment.

A member state of the United Nations, by signing the Charter, undertakes to follow the decision of the Court in every case to which it is a party. Since a case can only be brought to court and decided if the parties have agreed one way or another to its jurisdiction over the case, a decision is rarely made. A State which considers that the other party has failed to fulfil its obligations arising from a judgment issued by the Court may refer the matter to the Security Council, which is empowered to recommend or decide on measures to be taken to implement the judgments.

The procedure described above is a normal procedure. However, the course of the proceedings may be modified by incidental proceedings. The most common incidental proceedings are preliminary objections, which are raised in order to question the court's authority to decide on the merits (the defendant state can, for example, object to the court's lack of jurisdiction or the inadmissibility of the complaint).

The matter is for the court itself to decide. Furthermore, there are interim measures, interim measures that the requesting state can request if it believes that the rights that are the subject of its request are in imminent danger.

A third possibility is that a state may request permission to intervene in a dispute involving other states if it believes it has a legal interest in the matter that could be affected by the decision taken. The Statute also contains provisions for cases where the respondent State fails to appear before the Court, either because it rejects the Court's jurisdiction altogether or for any other reason.

The non-appearance of one of the parties does not prevent the proceedings, although the Court must first satisfy itself that it has jurisdiction. Finally, if the Court were to find that the parties to the separate proceedings were making the same argument.

Advisory Proceedings
Consultative proceedings before the Court are open only to the five organs of the United Nations and the 16 specialized agencies of the UN family or affiliated organizations.

The General Assembly and the United Nations Security Council may request advisory opinions on "any question of law". Other UN bodies and specialized agencies that have been authorized to request advisory opinions can only do so with regard to "legal questions arising in the course of their activities".

When the Court receives a request for an advisory opinion, it must gather all the facts and is therefore authorized to hold written and oral hearings similar to those in contested cases. In theory, the Court can do without such a procedure, but it has never completely abandoned it.

A few days after the request is made, the Court draws up a list of States and international organizations likely to be able to provide information on the issue before the Court. These states are not in the same position as participants in the contested proceedings: their representatives before the Court are not known as representatives and their participation in the advisory proceedings does not bind them to the opinion of the Court. Usually, the states mentioned are the member states of the organization requesting the opinion. Any state that has not been consulted by the Court may request it.

However, it is rare for the ICJ to allow participation in advisory proceedings by international organizations other than the one that requested the opinion. The only non-governmental international organizations ever empowered to provide information to the ICJ ultimately failed to do so (International Status of South West Africa). The court rejected all such requests by private parties.

Written proceedings are shorter than interstate proceedings and the rules governing them are relatively flexible. Participants may submit written statements, which are sometimes subject to written comments by other participants. Written statements and comments are considered confidential, but are generally made available to the public at the beginning of oral proceedings. States are then usually invited to make oral statements at public meetings.

The advisory procedure ends with the delivery of the advisory opinion at a public meeting.

Such opinions are essentially advisory; in other words, unlike the judgments of the Court, they are not binding. The requesting authority, agency or organization may implement its opinion as it sees fit, or not at all. However, some instruments or regulations provide that the Court's advisory opinion is binding (eg the Convention on the Privileges and Immunities of the United Nations).

However, the Court's advisory opinions are associated with its authority and prestige, and the decision of the competent authority or agency to approve the opinion is as if approved by international law.

Financial Assistance to the Parties

Secretary-General's Trust Fund to assist States in settling disputes through the International Court of Justice. In 1989, to encourage states to bring their disputes to the Court, the Secretary-General of the United Nations established a trust fund to provide financial assistance in certain circumstances.

Today, the Fund is open to all States wishing to submit a dispute, provided that the Court's jurisdiction (or the admissibility of the application) is not or no longer disputed. Another purpose of the fund is to help states that are parties to the dispute to comply with the judgment handed down by the Court.

References:

  • https://www.icj-cij.org/en

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