October 13, 1997
Despite the increase in international interdependence in recent centuries, there is still no collective body of international legislation. This is not to say that there isnít an enormous corpus of international law, but generally, such law was created not to apply globally but only to those nations who agreed to follow these laws. This puts the International Court of Justice in the interesting position of not just having to decide on matters of law, but also to decide what qualifies as law. Founded originally in 1922 as the Permanent Court of International Justice, it was slightly re-organized and renamed when it was incorporated into the United Nations in 1946. Although somewhat successful through the years it has had problems which seem to be inherent in its organization and implementation.
The International Court of Justice serves two major purposes. Primarily it serves as a deciding body in international disputes when its requirements for jurisdiction are met. Its secondary purpose is to serve as in an advisory role to the world community. In order for a case to be presented to the ICJ, it must meet one of several requirements. First, if two or more countries in creating some kind of treaty agree that the ICJ should be the standing body for deciding disputes then it is in the jurisdiction of the court. Also any disputes based on the interpretation of a treaty, a question of international law, any fact which may be deemed a breach of international obligations, and if a breach of obligations has been determined the court is also entrusted with deciding the amount of reparations given. Any treaties or agreements written before 1946, which call upon the Permanent Court of International Justice or the League of Nations to settle a dispute, are also automatically referred to the ICJ. Maybe most interesting is the fact that in a case were there is a dispute as to the jurisdiction of the ICJ, it is the court itself, which decides if it should in fact make a decision. The nations currently allowed to propose cases to the ICJ are the 185 members of the United Nations as well as the nations of Switzerland and Nauru, which are specifically referred to in the courtís statute.
In serving in its advisory role, the court may be presented with a question by any one of 6 United Nations organs, or sixteen UN affiliated agencies. Upon receiving a request for an opinion, the court will call upon any individuals or representatives it deems necessary to make an educated ruling. These advisory rulings are not inherently binding as they are intended merely as the opinion of international law but they are binding in the situation where a previous agreement has agreed to abide by the ruling of the advisory court.
The Court itself is made up of fifteen members, no two of which may claim nationality to the same country at the same time. Any state eligible to propose a case may nominate candidates to the post of judge. In order to be nominated, a person must be "persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest judicial offices, or are juris consults of recognized competence in international law (ICJ Statue, Article 2)." Terms of office are nine years, during which time judges are not to serve as representatives of their nations but to pledge to serve as unbiased jurors above national concerns. Elections occur once every 3 years with one third of the seats being vacated at a time. To become a member one must receive an absolute majority in both the UN Security Council, and the General Assembly. In a case where more people receive this majority then there are seats available, the seats will be given out on the basis of age. When a case is put before the court, if one or both of the nations of contention are not represented on the court, they may appoint an ad hoc judge to serve for the duration of the trial. This judge must also take the same oath as the standing 15 members.
Because there is no standing body of truly unanimously accepted international law, it is up to the Court to decide what it will use as law. In making a decision the court, according to Article 38 paragraph 1 of its statute,
a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The most significant aspect of the work of the International Court of Justice is that they have absolutely no enforcement powers other than the ability to negotiate the reparations required for agreement non-compliance. As has often been discussed, there is no world police force. Further limiting the impact of the courtís decisions, article 59 of the statute states, "The decision of the Court has no binding force except between the parties and in respect of that particular case."
In my opinion, the two most significant obstacles in the way of the International Court of Justice are that it has no power to enforce its decisions (not even through the UN, and also that it has no well defined body of law to guide it. To use a current example of the enforcement problem, the ICJ rendered an advisory opinion in July of 1996 on the legality of the use or threat of nuclear weapons. Although somewhat wishy-washy the court came down basically against the weapons, siting the non-humanitarian aspects of nuclear explosions and fall-out. The decision did provide that the use of nuclear weapons might be justified in the course of preventing the destruction of oneís own nation. Although this was an advisory opinion and not a binding decision between states, nations will continue to possess nuclear weapons, and in doing so maintain the threat of their use. There is no way that the court could enforce a ban on nuclear weapons even in a legal sense. If a country were to bring suit against a nuclear power, say Japan sues the US for the use of the bombs in WWII, even if Japan could win on the grounds that the US was not acting in the interests of self-preservation, the US might be asked to pay reparations but not to eliminate itís weapons. This is the same problem of enforcement that prevents the United Nations as a whole from working as an effective world body.
As mentioned above, the problem of law is also quite significant. Often cases brought before the court are contested as to their legality. Because there is no one set of laws that apply internationally, there is often contention as to which treaty or agreement should apply. In another recent example, Libya is arguing that through the Montreal Convention relating to violence against civil aircraft of 1971, it is responsible for punishing the 2 men suspected of bombing Pan-Am flight 103 over Lockerbie Scotland. It is the contention of both the US and Great Britain that the Montreal convention doesnít apply in this case and so they should be extradited and made to stand trial in Great Britain. With the traditional rules of extradition meeting with a different agreement of Civilian aircraft, the Court must weigh which laws it deems more important in this situation.
The Two suggestions I have for solving these problems are somewhat straightforward, but also quite difficult. First of all, a well-defined set of international law needs to be created for the court to be able to function as a real power. Now, much of its time is spent arguing jurisdiction in international disputes. For example, there is another current case of Bosnia-Herzegovina v. Yugoslavia concerning genocide. But at the time of the genocidal acts the Bosnia was not a member of the UN or one of the designated other countries who can be represented in the ICJ, so it is being argued that the court has no jurisdiction.
The ICJ also needs to find some kind of enforcement mechanism. As it is serving as both a Criminal and a civil court (on a particularly grand scale), enforcement of its decisions is essential to it being a real power. As it is part of the UN organization it could benefit from having a United Nations standing army. Even with an army though it would be difficult to enforce decisions against certain military powers, and many of the disputed decisions are not worth large-scale military action. Punishment for non-compliance is another possibility but there is little that the court has control over that it could force compliance with a punishment. Possibilities include, not allowing non-complying nations to vote in the General Assembly, to serve on the Security Council, or even to present another suit in the ICJ. It would be extremely difficult to get nations to agree to be subject to a world court with that much power.
Although similar in a few areas, the ICJ is quite different from an organization like the US Supreme Court. The Supreme Court has all the enforcement capabilities of the nation behind it, as well as the integral checks and balances aspect of its existence. The one advantage that the ICJ has over the Supreme Court, is its ability to render Advisory opinions upon request of one of 22 organizations. If these opinions were in all cases binding as opposed to the current state of things, the ICJ would be considerably more powerful and able to perpetuate what it considers to be world justice.