Practice and procedures of the International Court of Justice

MEMORANDUM

To: Minister of the Foreign Office of the Republic of Basran and relevant ministry officials

From: Senior Legal Adviser to the Foreign Office of the Republic of Basran

Subject: Practice and procedures of the International Court of Justice

Dispute Existence as a Condition of The International Court of Justice’s (ICJ) Jurisdiction

The existence of a conflict is a provision the court requires those having conflicting claims regarding a specific subject matter to have met. The conflicting parties must have given their consent regarding the ICJ’s jurisdiction to determine the presence of a conflict. The ICJ evaluates the case presented to them through a notification to the Court’s Registry and determines whether a dispute occurs for it to exercise its jurisdiction. In a situation where the court may perceive non-existence of a dispute, the ICJ clearly and openly informs the parties to the dispute that they have not found any conflicting claims in the subject matter presented and therefore they have no jurisdiction on the case. To determine whether a dispute exists, the court uses; the existing conventions and treaties’ provisions to the parties, consistency to the past case legislation, it can create new requirements for dispute determination or use the existing general principles. 

The international law does not entangle states to solving disputes through peaceful means. However, the United Nations (UN) Charter 1945 requires that members states be obliged to resorting to peaceful means of resolving disputes, as long as the method of dispute settlement selected intends to maintain international security and peace. In addition, based on the provisions of the treaties and conventions that the ICJ recognizes, the member states may be obliged to resolve their disputes in the peaceful manner as prescribed by the treaty or the conventions. The UN Charter in Article 1(2) requires that the member states ought to develop friendly-oriented relations that are focused towards strengthening international peace. Social, economic, humanitarian and cultural disputes needs to be solved through international cooperation and supporting the respect for the people’s freedom and human rights. The United Nations focuses on ensuring that the actions of nations are harmonized and that the common goals of the UN are achieved. The UN Charter provides different guidelines to ensure that the main focus of ensuring international security, cooperation and peace is achieved even when disputes exist. 

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Articles 2(3) and 2(4) of the Charter perceive international security and peace maintenance as the main goals of the UN and the member states need not indulge in dispute settlement options that can impend the global security, justice and peace and they ought to refrain from threats and use of force in a manner that is against the objectives and purpose of the UN.

The charter obligates the UN to execute its legal mandate through negotiation procedures that the respective governments and their diplomats consider as a ground for international legislation. The member states of the UN have an international obligation to consider the partial or full conflict resolution amongst the states, which are conducted by diplomats of the states and other representatives of third-party states. Arbitration, negotiation, inquiry, mediation, judicial settlement, conciliation, and regional arrangements are some of the dispute settlement options that the UN Charter provides and the disputing states have the choice to choose the one that is applicable to them, based on the dispute’s subject matter and their conflicting claims. In addition, the choice of the dispute settlement procedure should not demean the United Nation’s objective of sustaining global security, justice and peace. The UN Security Council is authorized by Article 33(2) of the UN Charter to recommend the use of dispute settlement procedures and the Council is also mandated to initiate the proceedings of the dispute settlement solution recommended. The UN Charter does not make it mandatory for member states to resort to the methods of dispute settlement provided but obligates them to ensure that the disputes arising between the member states are solved with respect to the objectives and purpose of the UN. 

Diplomatic settlement of disputes and the legal settlement of disputes are some of the forms of dispute settlement that the UN Charter has provided. The diplomatic settlement of disputes involves parties to the dispute having control over the direction of the dispute settlement proceedings and procedures. This form of dispute settlement does not recognize the third party opinions and they are not legally binding to the disputing parties. Under the judicial dispute settlement provisions, a judge from the ICJ is mandated to give a ruling regarding the solution to the presented dispute. The opinion of the judge of the ICJ is considered to be legally binding to both parties and legal action would be taken to either party in case of failure to adhere to the court’s ruling. Without consideration of the procedure used to settle disputes, the main goal should be ensuring that the international justice, security and peace are maintained. 

A dispute could be defined as a conflict between states in relation to a specific subject matter such as the conflicting interests and legal understandings. The ICJ has dealt with different cases with respect to different disputes. The rulings differ depending on the different considerations and specifics of the case and the jurisdiction the ICJ has over the case. In the case of Belgium v Senegal [2012], Belgium presented a case against Senegal regarding Senegal’s lack of compliance to comply with the obligations of prosecuting former Chad President, Hissene Habre. Mr. Habre instigated political killings and acts of inhumanity during his presidency, which are against the provisions and guidelines of the UN Charter. In the ruling, the ICJ recognized the existence of a dispute and ruled out that Senegal ought to immediately comply with its obligation of prosecuting Habre or delegate the role to competent authorities. In the Georgia v Russian Federation [2011] case, the court identified that indeed there was a dispute but it had no jurisdiction over the case since the dispute between the two states that was guided by the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The two states were obligated by the convention to resolve the dispute through negotiation prior to resorting to judicial dispute settlement, a condition that the two parties had not met. Georgia had presented the case to the ICJ due to the Russia Federation non-compliance to the CERD provisions.

Article 22 of the CERD provisions offers guidelines that the parties involved in conflicting claims regarding the convention’s solicitation and understanding should resort to negotiation and other procedures presented by the Convention. The parties should only resort to judicial dispute settlement in the ICJ once the other procedures have failed to provide a solution.

In the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania Advisory Opinion [1950] case, the questions were presented by the UN General Assembly. The ICJ presented an opinion stating that there existed a conflict between the three parties, which was subject to the resolution of conflicts presented in the peace conventions. The court’s opinion stated that the three countries through their governments were obliged to complying and executing the guidelines of the treaties with regard to dispute resolution. In the South West Africa Cases [1962], Liberia and Ethiopia made different claims against South Africa. The case constituted of claims on the presence of the South West Africa obligation in the League of Nations. In addition, the claims questioned the provisions about South Africa as a compulsory power to the League of Nations. The ICJ rejected the claims made on the basis that none of the two nations had the legal right with regard to the dispute’s subject matter. 

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For a state to become a party to the ICJ, there are conditions the state needs to meet as provided by the UN Charter and the ICJ Statute. 

All states governed by the UN are by default members of the ICJ as guided by Article 93 of the UN Charter. Section 2 of the article further says that UN non-member states could be part of the ICJ under the special case, as advised by the UN Security Council and the UN General Assembly.

The ICJ statute also contributes to the conditions that should be met by states for them to gain consideration in the court. 

Article 35(1) of the ICJ Statute states that a party’s inclusion in the ICJ should not pose a threat of inequality to the court. In the situation where a party to the case is not part of the UN, the court shall decide the contribution of the court’s expense that the other party will make.

Different ways in which a state can give consent to the jurisdiction of the ICJ

There exists a difference between contentious jurisdiction and the advisory jurisdictions. Contentious jurisdictions requires the consent of the parties to a conflict regarding the involvement of the international court in finding a solution to the dispute. For the court to initiate court proceedings regarding a specific dispute among the UN member states, the court has to have the go-ahead from both parties. Under advisory jurisdictions, the court only delivers an opinion, upon request by the UN specialized organs and agencies like the Security Council or the General Assembly. It entails giving advisory solutions to legal issues that these organs and agencies bring up as part of their activities in executing their role. The main difference between contentious jurisdiction and advisory jurisdiction is that with contentious jurisdiction, the court’s ruling on the case is legally binding but advisory opinions given by the ICJ are not legally binding. 

The UN member states can give consent to the ICJ jurisdiction through different ways. The special agreement is where the conflicting parties give consent to authorize the ICJ’s jurisdiction upon presentation of the conflict to the court. The ICJ upon acquiring the authority of the parties, compromises all the cases presented to it. The ICJ requires that the specific details of the dispute be stated when the case is being presented to the court.

 Parties to the ICJ Statute may recognize the compulsory jurisdiction by the ICJ in solving legal disputes as stipulated in Article 36(2). This article guides the optional clause declaration as a form of giving approval to the ICJ jurisdiction. 

It is the authority of the court to compromise on all the matters. The consideration of the provisions of the conventions and the treaties are a form of giving approval to the ICJ, which the states guided by the ICJ Statute use.  It is used where the parties to a dispute are parties of treaties and conventions, which provide clauses that dictate the dispute resolution mechanisms to be used. Lastly, the ICJ Statute recognizes the Forum prorogatum as a form of UN states seeking the legal authority and power of the ICJ. In the case where the court’s jurisdiction may not be recognized by the state at that period the case is filed against it, the state has the option of accepting the jurisdiction. This makes the state become legally bound by the guidelines of the ICJ Statute and will give the court the jurisdiction to make a ruling over the case.

The different ways of giving authority to the court’s power vary in their strengths and weaknesses, based on the states’ agenda. It offers the parties to a conflict the opportunity to express the conflicting claims of the disagreement. In addition, they define the scope within which the ICJ’s ruling should cover. The flexibility of special agreements makes it disadvantageous since it limits the court’s power and authority in the execution of its powers to a limited number of conflicting claims, which might be endangering international peace and relations. The optional clause declarations have the options of the disputing states to deliver reservation clauses and eliminate themselves from the ICJ’s compulsory jurisdiction, which favours the states’ ability to tailor the reservations to what is beneficial to them. However, the concept of reciprocity may be complex and self-centered such that the UN purpose is demeaned. The Dispute settlement provisions in treaties are an advantageous option of giving consent by the states to the court since states sign inclusion into the treaties and conventions based on their acceptance and their ability to benefit from the provisions of the treaties and conventions economically and socially. The main disadvantage of this form of consent is that it is inflexible and the withdrawal from the treaty does not limit the court’s jurisdiction to offer insight and a ruling regarding the case presented to them. The treaty’s provisions may be ignored but the provisions of the UN Charter will not be ignored. The Forum Prorogatum also has its strengths and weaknesses. It is flexible and gives the UN non-member states the option of giving their consent to the court and gives them the freedom to make an independent choice.  However, it may cause anxiety once the states resent the ICJ Statute’s provisions especially if the states perceive this situation as one that will compromise their sovereignty.

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Explanation on whether it is possible for a state to block the jurisdiction of the ICJ

The UN member states and those guided by the ICJ Statute may block the ICJ jurisdiction of exercising its legal authority and power. Based on the provisions of the ICJ Statute, the member states can block the court on the basis of the provisions with regard to the conditions of reservations and reciprocity, the declaration on modification or termination and the duration of an optional clause declaration. Time is an aspect that the optional compulsory jurisdiction considers in its provisions. It provides considerations regarding the duration required to make a declaration for the member states by the Statute. The authority and power of the ICJ are limited based on the specific periods of time and the period within which the states are compelled to the compulsory jurisdiction. The period within which the states make their declarations and submit their reservations to the ICJ is key as it depicts the level of legal authority the ICJ can exercise once a dispute occurs. Many countries have made their reservations regarding the compulsory jurisdiction whereas other such as Thailand did not renew their declaration upon expiration. In the Anglo-Iranian Oil Company (United Kingdom v. Iran) case, the ICJ made a decision that it had no jurisdiction over the matter since the court’s jurisdiction was dependent on Iran’s and the United Kingdom’s acceptance of the compulsory declaration. However, in 1932, Iran ratified its declaration and the court ruled that the declaration covered treaties concluded by Iran on that Date. The claim by the United Kingdom was based on treaties prior to the time at which Iran approved its declaration. In this case, the period within which the foundations of the case were based on limited the court’s jurisdiction. 

When a state modifies or terminates their declaration to the compulsory jurisdiction, the ICJ seizes to have the control over the disputes that arise after that termination or modification. Some countries have terminated their declaration including France in 1974, South Africa in1967 and the United States in 1985. In 1984, the United States had made an attempt to modify its declaration of the compulsory jurisdiction, with the agenda of excluding disputes from Central America. In the Nicaragua v United States case, the United States withdrew its involvement from the case, which blocked the ICJ jurisdiction of intervening in solving the dispute. The conditions of reciprocity and reservations may also block the jurisdiction of the ICJ. The reservations place limitations and the since the reciprocity and reservations are stipulated by the states. In the Phosphates in Morocco (Italy v France) case, the concepts of reciprocity and reservations in compulsory jurisdictions are addressed. France blocked the court’s jurisdiction by objecting that on the reservation of the French’s declaration of acceptance. The court then could then not make a ruling regarding the dispute between the two parties due to France’s objections. 

Yours,

Senior Legal Adviser to the Foreign Office of the Republic of Basran

Signature…………..………………………….

Name………………………………………….

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