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

Extracts from this essay...

Introduction

INTERNATIONAL LAW AND INSTITUTIONS MO7914 COURSEWORK PART 2 (QUESTION 3) NAME: JACQUELINE YEE-BING LEE STUDENT NUMBER: 01228801 NUMBER OF WORDS: 3,364 The International Court of Justice (ICJ) is one of the six principal organs of the United Nations. It began work in 1946, and its seat is at the Peace Palace in The Hague (Netherlands) and it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922. It operates under its statute which is largely similar to that of its predecessor, which is an important part of the Charter of the United Nations. Thus, all members of the United Nations are automatically parties to the Statute. However, in certain circumstances, States which are not members of the United Nations may appear before the court, and may even become parties to its statute. The court is composed of fifteen judges1 to hold nine-year terms of office by the United Nations General Assembly and Security Council2 sitting independently of each other. It may not include more than one judge of any nationality. Elections are held every three years for one third of the seats, and retiring judges may be re-elected. The Members of the court do not represent their government but are independent magistrates. The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognised competence in international law.3 They must not act in a political or administrative capacity4 nor appear as an advocate.5 The composition of the Court has also to reflect the main forms of civilisation and the principal legal systems of the world.6 When the court does not include a judge possessing the nationality of a State party to a case, that State may appoint a person to sit as a judge ad hoc for the particular case.7 The Court has dual roles which are to settle, in accordance with the international law, the legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by duly authorised international organs and agencies.

Middle

While the Yearbook of the International Court publishes the text of the 'compromissory clauses',28 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,29 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,30 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.

Conclusion

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,41 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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