If a dispute arises between you and your neighbour over the boundaries of your property, there is no escape from going to court. But what happens if a border dispute arises between two neighbouring countries? Which court and what law can resolve this conflict? In the past, wars were the only solution. Still, after the First and Second World Wars, which left millions of victims, the international community found a peaceful alternative by establishing the United Nations and its judicial body known as the International Court of Justice, or the World Court.
History of the International Court of Justice
The International Court of Justice (ICJ) was established in 1946 as the successor to another court created by the League of Nations in 1922, known as the Permanent Court of International Justice, which ceased functioning in 1940. Despite its short lifespan, it managed to rule on 60 cases before being dissolved after World War II.
The ICJ is one of the principal organs of the United Nations, similar to the General Assembly and the Security Council. However, it is the only main organ not based in New York. Its headquarters are in the Netherlands, specifically in the Peace Palace in The Hague. It is the highest judicial body within the United Nations and globally, having handled over 170 economic rights, diplomatic relations, and territorial sovereignty cases. Notable examples include the Egyptian-Israeli dispute over Taba, which ruled in favour of Egypt, and the demarcation of borders between Qatar and Bahrain.
The ICJ enjoys administrative independence. It is also the only main UN body not assisted by the UN Secretariat. Instead, the elected registrar supports the court’s judges, who serve a renewable seven-year term. The registrar heads the court’s secretariat and manages its administrative operations.
All UN member states automatically recognize the ICJ and can seek its services. The court has two main functions: settling disputes between states and providing legal opinions on questions referred to it by the General Assembly, the Security Council, or any of the UN’s specialized agencies. The court’s official languages are French and English.
The ICJ is not a criminal court and does not try individuals. It only hears disputes between states brought before it. The court comprises 15 judges elected by the General Assembly and the Security Council for a nine-year term, with five judges elected every three years. Judges can be re-elected.
Every three years, the court elects a president and a vice president. The president presides over the court’s sessions, manages its operations, supervises its activities, and reports annually to the Security Council in New York on the court’s activities.
The court’s composition reflects geographical balance. Three seats are reserved for African judges, two for judges from Latin America and the Caribbean, three for Asian judges, five for Western judges, and two for Eastern European judges.
No country has a guaranteed seat, but in practice, the court always includes a judge from each of the five permanent members of the Security Council.
If a dispute arises before the court and no judge from the involved countries is present, each state can appoint an ad hoc judge for that particular dispute.
Statute of the International Court of Justice
The Statute of the International Court of Justice comprises 70 articles in five chapters. Article 1 establishes that “the ICJ is established under the United Nations Charter as the principal judicial organ of the United Nations and shall function in accordance with this Statute.”
The first chapter, from Articles 2 to 33, focuses on the organization of the court. It details that the court is composed of 15 independent judges, elected regardless of nationality from persons of high moral character, qualified for the highest judicial offices in their respective countries, or recognized as eminent jurists in international law. These judges must represent the principal legal systems and civilizations of the world.
The first chapter also outlines that judges are elected by the General Assembly and the Security Council from a list of nominees provided by national groups from the Permanent Court of Arbitration, based on the procedures detailed in Article 4. This requires the nominees to be presented by their governments under conditions similar to those of the Permanent Court of Arbitration members.
The court operates based on the 1907 Hague Convention on the Pacific Settlement of International Disputes. The General Assembly sets the conditions under which non-UN member states can participate in electing court judges based on a recommendation from the Security Council.
Article 13 sets the term of office for judges at nine years, with the possibility of re-election. Judge elections follow complex procedures, including several voting rounds and joint conferences to resolve potential conflicts. Judges are prohibited from engaging in political, administrative, or professional activities while serving on the court.
Judges are entitled to diplomatic immunity during their service. Before assuming office, each judge must take an oath to act with integrity and conscience. The president and vice president of the court are elected for a three-year term and may be re-elected.
The second chapter addresses the court’s jurisdiction, where only states can be parties in the cases brought before the court. The court’s jurisdiction includes cases referred by the parties and matters outlined in the UN Charter and international treaties. States may also recognize the court’s compulsory jurisdiction in legal disputes.
The third chapter outlines the procedures followed by the court. Cases are brought either by a declaration of agreement between the parties or by a written request addressed to the court’s registrar. The court is also granted the authority to issue provisional measures if necessary to protect the parties’ rights during the case’s consideration.
The fourth chapter deals with advisory opinions. According to Article 65, “the court may give an advisory opinion on any legal question at the request of any body authorized by or in accordance with the United Nations Charter to make such a request.” Questions for which an advisory opinion is sought are submitted to the court via a written request, which includes a precise statement of the issue and all relevant documents that may shed light on the question.
The fifth and final chapter covers procedures for future amendments. Article 69 states that “amendments to this Statute shall be made in the same manner as amendments to the United Nations Charter, taking into account any provisions adopted by the General Assembly based on a recommendation from the Security Council regarding the participation of states that are parties to this Statute but are not members of the United Nations.”
International Law
There are various types of laws, with different sources and provisions. However, what concerns us here is specifically international law, as it serves as the legal framework for the rulings issued by the ICJ.
International law and justice play a significant role in the work of the United Nations (UN), which has successfully developed a system of laws, treaties, and international agreements to promote social and economic development and ensure global peace and security. These laws and treaties form the foundation that governs relations between states and play a vital role in the lives of individuals and communities worldwide.
Article 38 of the Statute of the International Court of Justice outlines its legal sources as follows: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; 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. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”
Article 59 stipulates, “The decision of the Court has no binding force except between the parties and in respect of that particular case.”
One of the UN’s primary roles is assisting states in resolving their disputes through peaceful means, such as arbitration and judicial settlement, as outlined in the UN Charter. Over the years, more than 500 multilateral treaties have been deposited with the UN Secretary-General, covering various topics such as human rights, disarmament, and environmental protection.
The General Assembly plays a central role in adopting international treaties, serving as a forum for discussion and agreement among member states. The Sixth Legal Committee has guided on legal issues important to the General Assembly. Over the decades, many significant treaties have been adopted, such as the Genocide Convention (1948) and the Convention on the Rights of the Child (1989), which are part of the international legal framework.
In 1947, the General Assembly established the International Law Commission, which intended to develop and codify international law. The commission comprises 34 experts who serve in their capacity, not as representatives of their governments. They are entrusted with drafting international laws on various issues, such as the use of international waterways and the law of treaties between states and international organizations.
Additionally, international humanitarian law includes principles and rules that govern the means and methods of warfare and provide humanitarian protection to civilians, wounded combatants, and prisoners of war. One of the most prominent laws in this domain is the Geneva Conventions of 1949. The UN is committed to promoting this law, with civilian protection and human rights in armed conflicts being critical priorities on the Security Council’s agenda.
Appeal and Enforcement
The court’s rulings do not possess inherent enforcement power, meaning the parties involved in the dispute may voluntarily comply. Alternatively, a significant state could intervene to enforce the ruling. However, appealing the rulings is impossible unless a considerable error in the submitted information is discovered.
Article 59 states, “The decision of the court has no binding force except between the parties and in respect of that particular case.” Moreover, the ruling is considered final and not subject to appeal, as Article 60 states, “The judgment is final and without appeal. In the event of a dispute as to the meaning or scope of the judgment, the court shall construe it upon the request of any party.”
Additionally, Article 61 clarifies that “An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was when the judgment was given, unknown to the court and also to the party claiming revision, always provided that such ignorance was not due to negligence.”
There is no doubt that resolving disputes between states through peaceful means is the ideal solution, but there is an inherent contradiction in this notion. Peaceful solutions are the natural result of logical reasoning, but in most disputes, the prevailing force is one of power, not reason.
Thus, peaceful solutions seem unlikely unless the power between the disputing parties is balanced.
This is evident in the nuclear arms race among the major powers, which serves as a deterrent and a guarantee against the outbreak of a nuclear war.
