The International Court of Justice (ICJ) is one of the six principal organs of the United Nations.

It is important to note that in Article 36(1) of the Court’s Statute provides that the Court has jurisdiction in all cases ‘which States in a dispute may agree to refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’.

However, they must have authorised to be subject to the jurisdiction of the court in one or more of the following ways. Firstly is by conclusion between them of a special agreement to submit the dispute to the court. Twelve cases have been submitted using this method, most often relating to minor but symbolically important territorial questions such as Belgium v. Netherlands and Burkina Faso v. Mali. Secondly, by virtue of a jurisdiction clause, that is, usually, in the event of a disagreement over its treaty containing a provision whereby, in the event of disagreement over its interpretation or application, one of them may refer the dispute to the Court. Lastly, through the mutual effect of declarations made by them under the Statute whereby each has accepted jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. The declarations of sixty four States are at present in force, a number of them having been made subject to the exclusion of certain categories of dispute. In cases of doubt as to whether the court has jurisdiction, it is the Court itself which decides.

The principle of forum prorogatum, where the Court, occasionally has prorogated jurisdiction, depends on the ratio to be drawn from the judgement.  The absence of express consent by one party has not acted as an obstacle to the Court being seized of the case as consent being implied. In the Corfu Channel case, the United Kingdom argues that under Article 36(3) of the United Nations Charter, dealing with the peaceful settlement of disputes gave the Security Council power to recommend that the parties to a legal dispute should refer it to the court, addressed to the United Kingdom and Albania, was sufficient to give the Court jurisdiction to hear a British complaint against Albania. The Court held that Albania had agreed to accept the Court’s jurisdiction, and most of the judges therefore found it unnecessary to comment on the British argument about the effects of the Security Council resolution recommending Albania and the United Kingdom to go to the Court. However, seven of the judges added that the British argument was wrong, since recommendations of the Security Council were not binding. Although it is difficult to reconcile the wording of Article 36(1) of the Statute of the Court, with that of Article 36 of the United Nations Charter, it is generally accepted that the Statute of the Court was drawn up at a time when it was thought that the San Francisco conference might accept some measure of compulsory jurisdiction. One effect of the judgement is that the recommendation of the Security Council under the Article 36(1) and 36(3) does not establish a distinct head of compulsory jurisdiction. However, prorogatum is rare as States not wishing to submit to the Court’s jurisdiction will refrain from behaviour from which consent could be inferred.

As stated above, one of the commonest sources of jurisdiction is where the parties have entered into a treaty which states that the Court should have jurisdiction in particular categories of dispute. Such clauses are sometimes referred to as ‘compromissory clauses’ which appears in many multilateral and bilateral treaties. ‘Compromissory clauses’ are found in treaties in two forms. Firstly, those designed specifically to promote the pacific settlement of disputes between two or more States and which frequently provides not only for judicial settlement, but also for the employment of conciliation and arbitration. Another type is those on a particular subject which contain a provision for recourse to the Court in the event of a dispute arising over the interpretation or application of the treaty. While the Yearbook of the International Court publishes the text of the ‘compromissory clauses’, treaties with such ‘compromissory clause’ are registered with the United Nations Secretariat.

Nevertheless, a State may accept the Court’s jurisdiction by way of a declaration under Article 36(2) of the Statute of the International Court of Justice. However, States are not required to make a declaration under Article 36(2) as it is an optional clause. Nonetheless, once the Court’s jurisdiction has been accepted reference to the Court is compulsory. States, which have made a declaration accepting the Court’s jurisdiction, in principle, possess the right to bring before the Court another State accepting the same obligation, while conversely it has by its declaration undertaken to appear before the Court should proceedings be initiated against it. It is vital that the subject matter of the dispute must fall within the terms of the acceptance lodged by both parties as the Court only have jurisdiction to the extent that the declaration coincide. This somehow puts a limit to the Court’s jurisdiction.

In short, jurisdiction in contentious cases depends on the consent of States. According to the principle laid down in the Monetary Gold case, the court will decline to decide between State A and B, which involve giving decision on the legal rights of State C, if to do so would require giving ruling on the legal rights of State C. However, in the case of Nicaragua, the court discarded the argument that authority should be declined under the Monetary Gold principle simply because the position of third parties might have to be considered. It was held that the Monetary Gold principle would only apply in situations where the position of the third party ‘would not only be affected by a decision, but would form the very subject matter of the decision’. It is also relevant to know that any non-party is protected by the terms of Article 59 of the Statute as well as the provision relating to intervention of third parties contained in Article 62 and 63.

In regards to the efficiency of the Court, the competitive sovereignty of States leads to a practice of confrontational one-upmanship, a war of words that the Court can do nothing to stop. The result is a flood of verbiage in a never ending flow of memoranda. The Court manages as it can with this abuse of prerogative, and its record is just as incongruous. It has lacked neither the mind's eye nor the boldness required to scheme against States in seeking to extend its own ability. Especially in the last fifteen years, even clues of the consent of one of the parties to its jurisdiction, have been enough for the Court to presume basis for its competence.

From a personal point of view, the Court does not really bring fair and justice to international law. At least, not for a certain number of States that shied away from such international jurisdiction which they were forced to see their interests let down at The Hague, as was the case with Bahrain in its boundary dispute with Qatar. Even though Bahrain denied ever having given consent, the Court affirmed its competence and despite the fact that this State seemed in accord with the Fatwa pronounced on November 5, 1994, by the grand mufti of Saudi Arabia, advising Islamic States against any option to international secular law. Similarly, the ICJ decided its competence against the desires of the Republic of Yugoslavia; accused by Bosnia of the crime of genocide, in results, Yugoslavia will now have to take part in a debate that it had tried to avoid.

However, once its competence is confirmed, the Court losses its boldness. Reverential of the sovereignty of States and trying to make its justice seem more obvious to them, the ICJ seeks to avoid creating winners and losers, especially in territorial disputes, where there is an existing object of disagreement and the possible for shared advantages. In others, it tries to give the losing State at least some satisfaction of principle. This attitude is not unconnected to the serious crises created in 1966, when the decision on South-West Africa was rendered. After years of procedural wrangling finally ended in the affirmation of its competence, the Court’s decision that Ethiopia and Liberia, the plaintiffs in this case, had no legal standing to act against South Africa and its apartheid policy was a great disappointment to many.

Therefore, with the reasoning above, it is not shocking to see the hesitancy of States to sign the jurisdiction clause and the significant number of ‘no-shows’. Since 1980s, the development of ad hoc chambers of the Court has narrowed the gap between ICJ jurisprudence and arbitration. Undeniably, the parties to a dispute can now barter with the President of the Court about both the quantity and individuality of the judges comprising a chamber, even if the Court still formally keeps hold of the final decision. The desire of certain States, especially the Western States, to control international justice in this manner became apparent in the Gulf of Maine delimitation case between Canada and United States, where both States attempts to constitute a purely Western Chamber. However, since certain non-western judges objected vigorously against this risk of the corruption of the independent and universal justice that the ICJ is supposed to represent, this indiscreet effort was later avoided.

The majority of the Court’s judgments have been complied with by the parties. However, the egotistical conception that certain States have of their sovereignty becomes outright illegality, as when they refuse to comply with a decision of the Court that is not favourable to their interest. Fortunately, such transparent refusal to comply is rare because they can adversely affect the international reputation of a State. Usually, the States involved would try to avoid a ‘sentence’ with which they are not prepared to comply.

Reserved in its action by the various ways in which States express their sovereignty, the Court is also prisoner of the deficiencies of international law. Such absences are inevitable because international society has expanded considerably since decolonisation. Despite the awareness of power created by the modern ‘balance of power’, international society lacks an institutional centre. In the case of East Timor, the territory was forcefully taken possession of by Indonesia; Portugal who put the case before the Court, oppossed the maritime delimitation treaty signed between Australia and Indonesia concerning the marine area situated off East Timorese coastline. Portugal asked the judges to find that Australia had violated international law by rejecting to recognise the right of the people of East Timor to self-determination. However, as Indonesia not being present at the proceedings, the Court refused to hear the case. It did however, stated that the right of peoples to freedom was a fundamental principle creating a non-derogable right, but left this capital theory without practical consequence.

In addition to the Court’s jurisdiction in contentious cases, the Court is also competent to give an advisory opinion on legal question at the request of the General Assembly of the United Nations, the Security Council and other bodies so authorised. On receiving a request, the Court decides which State and organisations might provide useful information and gives them a chance of producing written or oral statements. The Court’s advisory procedure is otherwise modelled on that for 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. Thus, such an advisory opinion is in theory a weaker Statement of law compared to a judgment. However, certain instruments or regulations can, however, provide in advance that the advisory opinion shall be binding.

Since 1946, the Court has given 24 advisory opinions concerning inter alia admittance to United Nations membership, damages for injuries suffered in the service of the United Nations, territorial status of South-West Africa (Namibia) and Western Sahara, judgments made by international administrative tribunals, costs of certain United Nations operations, validity of the United Nations Headquarters Agreement, the status of human rights rapporteurs and more recently, the legality of the threat or use of nuclear weapons in which the Court decline to provide an opinion requested by the General Assembly of World Health Organisation (WHO) by a state reasoning that the constitution of the WHO confined it inter alia to the effects on health of the use of nuclear weapons. However, on the same day, the Court gave an advisory opinion to the General Assembly of the United Nation on legality of the threat or use of nuclear weapon. This shows that in the case of the specialised agency, the question posed must be one that is intra vires the constitutional document.

In the early years of the United Nations, advisory opinions have been most eagerly required where there was some degree of ambiguity in relation to the relationship between the various organs of the United Nations and the member states. However, in the current advisory opinions, there are many conflicts of values at the heart of international society such as portrayed in the case on the legality of the threat or use of nuclear weapons. Also, the role of the advisory opinions is very limited as shown in the year 1946-1990, the Court had dealt with 52 contentious cases but only delivered 21 advisory opinions. One of the reason for this is that those organisations entitled to seek advisory opinions all employ large numbers of well competent legal advisers, so, there is conceivably less role for the ICJ as ‘an in house counsel of last resort’.

To end with, the ICJ may be a permanent institution, but it does not have a high work load, especially when compared with the European Court of Human Rights (ECHR). The Court’s power is restricted to legal disputes and Article 36(2) specifically limits the jurisdiction of the Court to ‘legal disputes’ but Article 38(1) of the ICJ’s Statute directs the Court to ‘decide in accordance with international law such disputes as are submitted to it.’ Though, the Court has acknowledged that there are limitations on the implement of its judicial function, no dispute has ever been rejected because it concerned non-legal issues. In addition, unlike in 1946, the ICJ is not the only court administering justice on the international plane. It operates alongside the European Court of Justice, the European Court of Human Rights and the International Tribunal on the Law of the Sea. Soon, it will need to need to build up a relationship with the International Criminal Court as it has with the two tribunals established to look into war crimes in Bosnia and Rwanda. Until now, the court for all its limitations and relative weakness is loaded with work and solicited by a growing number of States, especially those of small and medium size. These States come to the Court to protect their interest, but also to focus attention on a set of common values, adding to previous international customary. Through this, one can see the urgent need to reinforce international justice, of which the as-yet-unfulfilled situation is total obligatory jurisdiction for the Court. As a final point, in order to allow the Court to function effectively and efficiently in the future, States must be willing to submit their disputes to independent adjudication and demonstrate a willingness to comply with the Court’s decision.

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Bibliography

• Antonio Cassese, International Law in a Divided World (Oxford: Clarendon, 1986).

• Ian Brownlie, Principles of Public International Law, 4th ed. (Oxford: Clarendon, 1990).

• John O’Brien, International Law,(Cavendish Publishing Limited, 2001)

• Malcolm N. Shaw, International Law, 4th ed. (Cambridge: Grotius Publications, 1997).

• Peter Malanczuk, Modern Introduction to International Law, Akehurst’s, 7th rev’d ed. (London: Routledge, 1997).

• Rebecca M.M. Wallace, International Law, 3rd Edition (Sweet & Maxwell, 1997)

• Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon, 1994).

• Sir Robert Jennings and Sir Arthur Watts, eds., Oppenheim’s International Law, 9th ed. (London: Longman, 1996).

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