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- 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.
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