The Function Organization And Structure Of The International Court Of Justice Law Essay

The Function Organization And Structure Of The International Court Of Justice Law Essay Introduction In this essay the author wants to explain the International Court of Justice (ICJ). Important in that context is the history and former organizations, which were the pathfinder of the contemporary institution. It should be explained how the ICJ is working and who is working. The duties, functions and the international importance of the Court, plus the reasons why world politics need that kind of international Court. Further will be explained the most important Conventions, rules and Conferences, which build up the ICJ in its present- day. There are some important research questions, which are the main issues of the essay: What is the importance or the meaning of International Court of Justice? Most of the time the organization is mentioned as an institution with judicial arbitration in case of national disputes. It is standing over all states and has a very strong arbitration. The states are not able to appeal against the ICJs decisions or convictions, what caused the second research question: How the International Court of Justice does achieve these convictions? Who is the judge or who are the judges of the International Court of Justice? This is the question of the formation of the Court. Questions b) and c) have their focus on the inner- organizations of the Court and the author wants to find out, why the Court acts in certain cases in disputes and what are their concerns and requests to mediate a dispute. Hopefully all the questions will be answered in the end of the essay, in the conclusion there will be a comprehensive review of the topic and the important research questions. There is enough literature to use and with some examples of cases between national states, the process and interfering of the International Court of Justice, it should be well explained. History All began with the Jay Treaty of 1794, also called the Treaty of Amity, Commerce and Navigation, between the United States of America and Great Britain. It was made out of three mixed commissions with American and British nationals and they had to work as tribunals.  [1]   The second more important phase was marked by the Alabama Claims arbitration in 1872 again between the United States and Great Britain. In the Treaty of Washington the same parties arranged a sort of neutrality and fixed some important conditions for arbitration. They tried to avoid with the treaties conflicts between the states and they created a proposal of a permanent international arbitral tribunal.  [2]   The third phase was marked by The Hague Peace Conference in 1899 which got initiated by the Russians (Czar Nicholas II). The phase was part of modern international arbitration. The main concern of the conference was discussing peace and disarmament. It got finished with the Convention on the Pacific Settlement of International Disputes (between Asian, American and Europe countries). Out of the Convention the Permanent Court of Arbitration got formed. A panel of jurists (from each country) administered the Permanent Court and also a leading office, located at The Hague, got set up. The Court got institutionalized and was generally accepted. The official establishment was in 1900 and the operating began in 1902.  [3]   In 1907 the second Hague Peace Conference started and also States of Central and South America participated. At this conference some participants (United States, Germany and Great Britain) tried to form a Permanent Court of Justice, but not all participants agreed with that. The problem was how and who had to choose the judges.  [4]   The Conference confined itself to recommending that States should adopt a draft convention for the creation of a court of arbitral justice as soon as agreement was reached respecting the selection of the judges and the constitution of the court. Although this court was never in fact to see the light of day, the draft convention that was to have given birth to it enshrined certain fundamental ideas that some years later were to serve as a source of inspiration for the drafting of the Statute of the Permanent Court of International Justice  (PCIJ).  [5]   The Permanent Court worked with cases like the territorial and marine dispute and delimitation between Eritrea and Yemen in 1898 and 1899 and in case which concerned Great Britain and Ireland and caused the Convention for the Protection of the Marine Environment of the North- East Atlantic in 1992 (OSPAR).  [6]   The Permanent Court of International Justice (PCIJ) Article  14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute, but also to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.  [7]   In 1920 the Council engaged an Advisory Committee of Jurists to present a report if the establishment of the PCIJ, they sat in The Hague under Baron Decamps (Belgium). After the report, the First Assembly of the League of Nations opened in Geneva in the end of 1920. In this case the legal frame of the PCIJ got fixed and realized. Every member country had a vote in case of decisions and elections. The first elections took place in September 1921. After the first Assembly, more of them took place in 1921, 1929 and finally in 1936 the Statute and legal frame of the PCIJ became effective and operative.  [8]   The PCIJ had after the long road of formation and development some differences to the former Court of Arbitration. First it got a permanently governed body and had an own Statute and Rules of Procedure. Second it had a permanent Registry which stayed always in touch with governments and international organizations. Third the proceeding was public and got documented for evidence. It also had a permanent tribunal; what offered a constant practice with international law and bodies. It also influenced the development in that case. Further all member states had to accept the principles and rules of the PCIJ. The PCIJ had also advisory function in case if the League of Nations Council or Assembly and a member state of the PCIJ were not normally a member state of the League of Nations. Last, it got more and more representive in the international context.  [9]   The International Court of Justice (ICJ) Case of the Second World War the PCIJ had less space for activities. The last conference was in December 1939, after that the PCIJ advanced backward and did not act in cases of disputes between countries. In 1942 the United States and Great Britain tried to establish a new international Court and the Inter- American Juridical Committee started to construct a new way of the PCIJ. In connection with this development, some informal Committees got held and published in February 1944 a report, which contained that the Statute has to be an international law and had to be based on the Permanent Court of International Justice. It should have advisory character and acceptance in jurisdiction.  [10]   Meanwhile, on 30  October  1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security.  [11]   The result of the meeting (October 1944) was a proposal for the International Court of Justice and represented in the beginning at one of the first meetings in Washington 1945, 44 states with a Committee of lawyers. The preparations of the Statute of the ICJ happened at the San Francisco Conference in 1945 with 50 participants and were based on the Statute of the PCIJ. That conference was one of the most important in the history of the ICJ.  [12]   The Conference decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat, and with the Statute annexed to and forming part of the Charter.  [13]   The Court was the judicial part of the United Nations and was linked to the League of Nations. All member states of the United Nations are member states of the ICJ. In the beginning of the ICJ the European countries dominated national, political and judicial affairs and case, that was the reason why the ICJ and the United Nation added some countries as members and they increased from 51 (1945) to 192 (2006).  [14]   Functions and structure The official formation date is the 26. June 1945. The official seat is like the former organization in The Hague. The ICJ consists out of fifteen judges, who have to be from the member states of the United Nations. These are independent and have a diplomat status. They get voted from the General Assembly and the Security Council of the United Nations. The main duties of the ICJ are to communicate between two or more disputing parties, but they have to be states, because the ICJ is not working with cases of individuals or organizations. Decisions are based on international law.  [15]   Current Judges ad hoc The following judges ad hoc have been chosen in the cases currently pending before the Court: Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Guinea: Mr. Ahmed Mahiou Democratic Republic of the Congo: Mr. Auguste Mampuya Kanunka Tshiabo Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Democratic Republic of the Congo: Mr. Joe Verhoeven Uganda: Mr. James L. Kateka Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Croatia: Mr. Budislav Vukas Serbia: Mr. Milenko KreĆ¡a Territorial and Maritime Dispute (Nicaragua v. Colombia) Nicaragua: Mr. Giorgio Gaja Colombia: Mr. Jean-Pierre Cot Certain Criminal Proceedings in France (Republic of the Congo v. France) Republic of the Congo: Mr. Jean-Yves de Cara France: Mr. Gilbert Guillaume Maritime Dispute (Peru v. Chile) Peru: Mr. Gilbert Guillaume Chile: Mr. Francisco Orrego Vicuà ±a Aerial Herbicide Spraying (Ecuador  v. Colombia) Ecuador : Mr. Raà ºl Emilio Vinuesa Colombie : Mr. Jean-Pierre Cot Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) Georgia: Mr. Giorgio Gaja Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) Greece: Mr. Emmanuel Roucounas The former Yugoslav Republic of Macedonia: Mr. Budislav Vukas Jurisdictional Immunities of the State (Germany v. Italy) Italy: Mr. Giorgio Gaja Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Belgium: Philippe  Kirsch Senegal: Serge Sur Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Costa Rica : Mr. John Dugard Nicaragua : Mr. Gilbert Guillaume  [16]   The ICJ is the only institution of the United Nations which has its head quarter not in the main quarter in New York, like mentioned is it in The Hague, Netherlands. In the graphic presentation below is explained how the ICJ works. The General Assembly and the Security Council vote the judges all three years for nine years. These judges represent different cultures, communities and legal frameworks. They are responsible for right decisions between state litigations and preconditions for the states who deposit their requests at the ICJ. Important is that they subordinate themselves under the jurisdiction of the ICJ. They are also responsible for the legal options in case and questions of the international law for the United Nations.  [17]   The authorities of the ICJ are provided in the fourteenth chapter of the UN- Charta, decided in 1945 in San Francisco. One the one hand the ICJ has his one statute and one the other it is based on the UN- Charta. That means that a member of the ICJ is also a member of the United Nations. The ICJ in connection with international law The ICJ has to base its decisions on the international law, mentioned above. Because of the international law, the ICJ is a legal person which is allowed to make his own decisions on a juristically structure on which it is based. In Act 38 Paragraph 1 it is mentioned that the Court has a statute based on international law, but it can also decided with the acceptance of the parties which are the main characters in a dispute.  [18]   The UN- Charta and the ICJ The chapter XIV of the UN- Charta says in Act 92 that the ICJ is the main adjustication of the United Nations and has a permanent statute and its duties, responsibilities and arrangements are based on the Charta and the statute. The first point of Act 93 means that all members of the United Nations are members of the Court. Second, a state who is not a member of the United Nations can get a member of the Court, but under different circumstances. There has to be held a conference at the General Assembly of the United Nations and the state has to have a reference of the United Nations Security Council. The first part of Act 94 says that every member of the United Nations is committed, in case of disputes to follow the interventions of the ICJ. If one of the parties of the dispute does not follow the rules of the ICJ, the other party is allowed to bring their case to the United Nations Security Council. The Security Council is the last institution who can finish the dispute and is able to make harder arrangements for the dispute parties. In Act 95 is written that the states can also ask other Courts to interfere in the dispute. The last Act, Act 96, says that United Nations Security Council can make requests for information of dispute cases and other institutions of the United Nations can with the allowance of the General Assembly ask for information of cases.  [19]   These conditions of work and service did not help very much at peace- keeping and with international security, which is one of the main duties and responsibilities. The former idea of the ICJ was to interfere between disputes and the result should be no war and military access, but this was and is impossible, because many states do not want to make compromises.  [20]   In official demonstrations, the ICJ most of the time interpreted and based their judgments and actions in international contexts on the UN-Charta. Every time they fell a judgment, they add, that they worked with the conventions of the Charta and the international law. The reason why they are so careful with their information is because of the international context and the cases with which they are working and the worrying about making problems between countries worse.  [21]   Types of Proceeding There are existing two different types of proceeding. First is the disputable proceeding based on Act 92 of the UN- Charta and second is the procedure of advisory opinion or expert assessment based on Act 96 of the UN- Charta and the IJC- Statue.  [22]   Disputable Procedure The disputable procedure should be a procedure which is based on peaceful resolutions for all contributing parties, in case of ICJ. The countries which are acting like parties, when they have a litigation at ICJ they have to be members, to be able to ask for help at the ICJ. If they are no members of the ICJ or the United Nations, they have to get a recommendation of the Security Council and afterwards the General Assembly is deciding if they are allowed to access the process and if they get a party for that time of the United Nations and the Court. If not, they cannot work with the ICJ together. International organizations are not allowed to get parties of the ICJ. These decisions were made on the Conference of San Francisco. The only way they can participate, is the way of listening.  [23]   Also important for the ICJ is the responsibility of an international tribunal. The Court can only work with a dispute between countries, when all parties agree to the litigation at the ICJ. This is based on a general principle of international law. At the Conference of San Francisco in 1945 it got discussed to base the Court on an obligatory jurisdiction, but in the end the Court got the statute of the traditional system with the former sovereignty principle. The countries have the possibilities to form an agreement, before the case comes official to the Court, who shows the responsibilities of the ICJ, but both parties have to agree. They can make a sort of compromise to abbreviate the proceeding. The states have also the possibility to arrange agreements for the time after the trial. Such a compromise should control the disputes and the acting. This should work like diplomacy or mediation- to prevent wars and conflicts. These agreements could be for example multi- or bilateral cont racts. Additional the countries can arrange the responsibilities of the ICJ also for the future, like they can work out compromises. This way of acting is called facultative obligatory. These compromises and obligatories can have time- limits or there could be instructions which they have to follow with or without a time- limit. That depends on the case and if there is the necessity from the Court to interfere. If there is a case, where the parties are not able to define the responsibilities of the Court together, then the Court is deciding the circumstances of the trial.  [24]   In the text above is written that the ICJ only interferes if there is a conflict between countries and there is no other possibility to solve the problem or conflict without a Court. The ICJ defines a conflict and its rule: disagreement on a point of law or fact, a conflict of legal view or if interests between two persons  [25]  That definition defines conflicts, but it does no show if it has to be juristically or non- juristically. The interpretation of the definition could also factor in political and social disputes. If it also includes social problems, then there is duty- problem with the International Criminal Court (ICC). Because of this defining problem the cases has to be totally clear and they have to be cases which do not have effects on political and social positive working structures. If they have such effects, then it would not be any more a case of the ICJ, but of the ICC (International Criminal Court).  [26]   The trial of the dispute has to be separated in two parts, the written and the spoken part (Act 43). Very important in this context is the preliminary objections  [27]  which could be used before the trial and during the trial from the parties against the Court. The law which is used from the ICJ for decisions is the mentioned international law. The international law gets split in three parts: first the under international law contracts, second general legal principles and third customary international law. Facilities for the ICJ can be already given verdicts or scientific consensus. The second mentioned form was in the past mostly used at national courts and in international law. Nowadays the general legal principles are disappearing and are not used very often. Today the ICJ is using the international law contracts and the customary international law most of the time.  [28]   The decisions of the ICJ can be obligation or declaratory judgments. The judgment concerns only the disputing parties and the judgment has to be accepted. There is nothing existing which could change that, but under conceivable explanations the trial can be scheduled. If a stated does not follow the guidelines of the judgment, the Security Council can threat and order penalties.  [29]   The Procedure of Advisory Opinion or Expert Assessment In this procedure the General Assembly and the Security Council of the United Nations can get an advisory opinion from the ICJ. In this context an advisory opinion or assessment means a juristically statement of a case of disputing countries. In the procedure no parties exist and an advisory opinion is in that context essential. The Court has more power over the case and more ways to interfere. This power results out of the advisory opinion, which gets verbalized by the Court for the UN- institutions. A reason why the procedure get used, results out if the not given capacity to sue and be sued of the United Nations. It should be a sort of compensation. The Court is not only checking the advisory opinion, because it has to involve the statements of the requisitioning institution and the statement of the states which are not the main characters of the trial, but they get mentioned. There are some other institutions who are also allowed to ask for an expert assessment, for example the I nternational Labor Organization, the International Atomic Energy Agency or the United Nations Educational, Scientific and Cultural Organization and more. The General Secretary is not allowed to request for an advisory opinion, but different organizations and institutions tried to get the ability to receive that. Up to the present day the ICJ and the people who are responsible for the UN- Charta did not react for this request. The General Secretary has just the possibility to summon the Security Council or the General Assembly to get an advisory opinion. These institutions of the United Nations can request for every question of law, but that is not the common treatment nowadays.  [30]   To get an expert assessment an institution or another different applicant has to have a question of law for the ICJ. Here is again the problem to separate political and juristically questions, but in this case until today the Court did not find a working consensus. The most of the time the Court decides when it gets the request. The questions do not need any form or structure; they just have to show the problem.  [31]   When the advisory opinion includes states, then the ICJ do not need the acceptance of these countries for such a request. The Court can make that and there is no different statement in the UN- Charta which would forbid that. But the ICJ cannot make a trial without the agreement of the states that means when the ICJ would make a verdict because of an advisory opinion, the states do not have to agree. If that would happen the ICJ has to refuse the request of an advisory opinion. The procedure of expert assessment belongs like the disputable procedure to the international law.  [32]   Differences between the ICJ and the Security Council of the United Nations A comparison between the ICJ and the Security Council is important, because they are both main parts of the UN-Charta (Act 7 para. 1). They are on the same level and have the same possibilities, but also their own functions and skills. The main subject of differentiating between the two important institutions is the independence or dependence of the members. A second important point is the difference between the types of procedure, because the ICJ should only work with juristical questions and the Security Council is responsible for political differences. The trials in the ICJ are stricter and more formal. The way to the Court, during and after the Court, has exact guidelines and they have to be accepted from the requesting states. In the Security Council there are more liberties for the involved parties. The states do not have to take care of many responsibilities or formal conventions in comparison to the ICJ. One of the most important differences is the handling with a verdict aft er the trial. If states request at the ICJ they have to accept the verdict and they cannot do anything again. The Security Council gives advice, so the countries do not need to feel compelled it do any action they dislike. The decisions of the Security Council are for the protection of the global peace and the international security.  [33]   Decisions of the ICJ in the past and its handling The activity of the International Court of Justice is not too rich. In its twenty four years of existence, the I.C.J. has received about fifty cases, rendered judgments in twenty one, and has issued thirteen advisory opinions.  [34]   In this topic the handling of the ICJ in different cases with disputes should be described. There will be some examples from the past to explain difficult backgrounds and the view of the ICJ. In its judicial activity, as well as in the advisory one, besides the decisions and the advisory opinions delivered, the Court has recorded, every time a decision was rendered or it issued an advisory opinion, numerous individual or separate opinions. Some of these opinions, real juridical masterpieces, are often of particular significance, due to the fact that they insist on some principles and arguments of international law, dissimilar to those which led to the solution rendered by the Court. These individual and separate opinions are regularly presented in extenso [emphasis added] in Recueil des arrest, avis consultatifs et ordonnances [emphasid added].  [35]   The decisions of the ICJ did not only help to find solutions in the international context. They also are an expression for the structure of the international law, where it comes from and how it gets handled. International justice, international law and international relations are very young from a historical perspective. The ICJ got established around eighty years ago and the former international tribunals maybe existed twenty years longer. This has many reasons; the world how we know it today, did not exist that way in the nineteenth century. The civilizations changed with the medial facilities for example or the First and Second World War, the forces in the international context changed in that case rapidly. The ICJ had started small and big revolutions in law perspectives, because law was not longer a part of one or two countries, law got global and international.  [36]  The author of the essay will take the first three cases as examples for the working processes in the ICJ. The Corfu Channel Case  [37]   The first case of the ICJ handled about the Corfu Channel Case in April 1949. The parties of the trial were the United Kingdom of Great Britain including Northern Ireland and the Republic of Albania.  [38]   The judges: Acting President GUERRERO; President BASDEVANT; Judges ALVAREZ, FABELA, HACKWORTH, WINIARSKI, ZORIĈIĆ , DE VISSCHER, Sir Arnold MCNAIR, KLAESTAD, BADAWI PASHA, K RYLOV, R EAD, HSU MO, AZEVEDO; M. EĈER, Judge ad hoc.  [39]   The case started in October 1946 when British ships drove into the Albanian water territories for mine- sweeping without any allowance of the Albanian government. The Albanians left after the Second World