HaCKeRz KrOnIcKLeZ 3/HaCKeRz_KrOnIcKLeZ.iso/anarchy/essays/schoolsucks/icj.txt

Text File | 1996-04-27 | 11KB | 164 lines

DESCRIBE THE WORKINGS OF THE ICJ AND
AssESS ITS EFFECTIVENESS.

        The International Court Of Justice (ICJ) is the principal judicial
organ of the United Nations, which succeeded the Permanent court of
International Justice after World War Two. It gains its legitimacy from
Article 92 of the UN Charter which allows it to function " in accordance
with the annexed Statute, which is based upon the Statute of the  Permanent
Court of International Justice and forms  an integral part of the present
Charter".
        By Article 93  all members of the UN are ipso-facto members of the
Statute and that states not members may become parties, on conditions to be
determined in each case by the UN General Assembly on recommendation of the
Security Council. Therefore allowing countries such as Switzerland and San
Marino, though not members of the UN, to be parties to the Statute of the
Court.
        The court consist of 15 judges, no two of whom may be Nationals of
the same state, elected by the General assembly and the Security Council.
They are elected for 9 years and  are eligible for reelections.
        The seat of the court is in Hague, Holland, but it may hold
sessions elsewhere whenever it considers desirable.  It is a continuing
body. The Statute provides that it is permanently in session except during
judicial vacations. It is also an autonomous body.  It elects its president
and vice- president, appoints its registrar, and provides for the
appointment of other officers and clerical staff.
        Its function is to pass judgement on disputes between states, as
such only states may bring their cases before the court. It is open to all
states that are party to the statute and those who agree to the conditions
laid down by the SC.
        The proceedings of the court are carried out in French and English;
either may be used by the parties. Written pleading and oral presentations
presented in one language are translated into the other. The judgements and
opinions are both in French and English.
        Cases are brought before the court either by the notification to it
of a special agreement concluded by the parties or by the unilateral action
of one of them through a written appeal to the registrar.
        Its proceedings are in two parts, written and oral.
        The Court may also hear witnesses and appoint commissions of
experts to make investigations and reports when necessary. These procedures
were used in the Corfu Channel, Temple of Preah Vihear and in South West
Africa(1966).
        The deliberation of the court are held in private, but the
judgements ,  which are by majority vote, are read in open court. In the
case of a tie, the President may cast a deciding vote; this was done in the
South West Africa Case where a 7-7 vote was cast.  Any judge may file a
separate opinion if he does not agree in whole or part with the judgement.
The decision of the court is final and without appeal.
        Although the ICJ has no enforcement powers, Article 94 of the
Charter incorporates an undertaking on the part of each member of the UN
"to comply with the decision of the ... court...in any case to which it is
a party"  and a further provision that:
        IF any party to a case fails to perform the obligations incumbent
upon it under a judgement rendered by the court, the other party may have
recourse to the Security Council, which may,  if it deem necessary, make
recommendations or decide upon measures to be taken to give effect to the
judgement.
        The court is authorised by Article 65 of the Statute to give
advisory opinions on any legal questions at the request of whatever body
may be authorised by or in accordance with the UN Charter to make such a
request. Article 96 of the  Charter provides that such opinions may be
requested by the General Assembly or the SC and by other organs of the UN
and specialized agencies, when authorised by the GA. Such requests must be
made by means of a written request containing an exact statement of the
questions, accompanied by all documents likely to shed light upon them.
>From this point on, the procedure before the court is somewhat analogous to
contentious cases.
        In its role as and advisory body, the court has given some
important opinions with regard to the costs of peacekeeping, which could be
reckoned as normal expenses. It also gave opinions concerning admissions
into the UN.
        Because of the ICJ's limited powers, its strict need to adhere to
its charter and its impotency of action unless approached we must consider
its ability to resolve cases brought before it successfully, its failures
to do so when approached and its shortcomings, in accessing its
effectiveness, keeping in mind its role in maintaining World peace.
        Since its founding in 1946, the ICJ has dealt with 41 contentious
cases between states and has also delivered 21 advisory opinions. It has a
mixed  record of successes and failures, with a surprisingly high degree of
compliance with the verdict of the ICJ.(Only two cases involving the Corfu
Channel Case and the US-Nicaragua case did the countries refuse to comply
with the ICJ judgement.) One reason for this compliance is the use of the
ICJ on a voluntary basis. Hence States would not seek the ICJ's verdict
without having first accepted the court's verdict in advance, be it in
their favour of not, as a matter of obligation.
        An example of a successful case where the ICJ is effective is in
territorial waters and fishing rights in the "Fisheries" case (1951). In
it, the ICJ verdict in favour of Norway settled a long-standing Dispute
between the United States and Norway involving British fishing vessels
operating inside Norwegian claimed waters. Another  success of the ICJ were
the "North Sea Continental Shelf" cases (1969) involving Denmark, the
Netherlands, and West Germany. This successful settlement was crucial to
the drilling of oil and gas in the North Sea later. A further example is
the "Fisheries Jurisdiction" case between the UK and Iceland (1974). In
this case, the ICJ contributed to the development of the Law of the Sea in
that it advocated the Conservation of the 'living resources of the sea".
        It was also effective in the territorial cases,  which included the
small group of  uninhabited islands in the channel islands (Minquier and
Ecrehou islands), disputed by UK and France. One longstanding dispute
between Nicaragua and Honduras since 1906, concerning villages on their
border and a dispute over the sovereignty Preah Vihear temple by Cambodia
and Thailand which was found to be in Cambodian territory. More recently,
the ICJ resolved a border clash between Burkina Faso and Mali in the 1986
"Frontier Dispute" Case. It also ruled on two pieces of land disputed by
Belgium and Holland which was found to be Belgium's.
        However the ICJ is noted for its failures to successfully resolve
inter-state disputes. To date there are more than 30 unresolved frontier
cases concerning land of greater value, which has never been submitted to
the ICJ, because one party's claim is not on legal grounds.  In some cases,
like the above, one or more of the  involved parties refuse to accept the
jurisdiction of the court, thus resulting in the court being ineffective.
For example the aircraft incidents between the US and USSR in respect of
aircraft shot down off Japan and one forced down in Hungry, here both
parties refused ICJ jurisdiction. In 1955 Israel, US and the UK brought a
case against Bulgaria for the shooting down of an Israeli civilian aircraft
over its territory. Bulgaria rejected ICJ jurisdiction. The Courts hands
were tied.
        Another example of the ICJ's ineffectiveness was in 1960 when
Ethiopia and Liberia brought a case to the ICJ claiming that South Africa
had violated the human rights of the natives of Namibia, which had been a
mandate under the league of Nations and which it ruled. After a long and
tedious process, the ICJ proclaimed that the case of Ethiopia and Liberia
was illegal, and thus, the case was dismissed on a "procedural point".
        Other instances of the ICJ's limitations in its effectiveness was
its 1979 verdict  that ordered the release of US diplomats held Hostage in
Teheran, and payment of reparations. In this case Iran contested and duly
ignored the ICJ's jurisdiction.
        In 1984 Nicaragua complained that the US had helped the Nicaraguan
Contra rebels against the Sandinista government. Two years later, the ICJ
ruled in favour of Nicaragua's claims, but in 1985, a year before, the US
had already withdrawn its acceptance of the ICJ's jurisdiction. All these
examples reflect the limitations of the ICJ in helping to settle interstate
disputes.
        Also, some cases may take several years to be heard. the Court may
require certain provisional measures before a final judgement. Hence it is
very time consuming to go through the ICJ.
        However, the blame for the limited effectiveness of the ICJ cannot
be laid on the court itself. The ICJ's neutrality has been maintained as
far as possible, no two ICJ judges may be of the same nationality, but
prejudices are impossible to eliminate totally due to human bias. In
addition, major issues of peace and security between the more powerful
states are rarely submitted as most governments tend to "consider the
recognition of the jurisdiction of the court as infringing on their
sovereignty". Indeed the average yearly number of decisions has not been
more than two. Furthermore, there is no real means of enforcing the ICJ's
verdict. THe ICJ has also been criticized as time consuming with little
usefulness. However, it cannot be wholly blamed as parties involved in
claims often request for more time to prepare their cases. Since its use is
totally voluntary, it cannot be expected to resolve cases not brought to
court and thus cannot be responsible for legal skirmishes not brought to
its doorstep.
        Despite of its shortcomings and the many failures it has
experienced, the ICJ has had a positive effect on the development of
International Law and the propagation of the principals of sovereignty,
non-conquest, human rights and the rights of existence and self-defence of
a state. In addition the ICJ has helped resolve disputes between states
with some degree of success, and given the numerous difficulties it faces,
its achievements are respectable and its usefulness is undeniable. Most
importantly , the ICJ, at the very least, provides an additional option for
states to settle their disputes peacefully through third party
intervention, and this has reduced the threat of open war.