INSTITUTE FOR LAW AND PEACE (INLAP) to advance public education on issues of law, peace and justice |
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An Introduction to the International Court of Justice Edition 2 November 1997
Dear Reader,
We are two ordinary citizens, not lawyers, and have produced this booklet because we discovered something important and hopeful and could find no other simple account of our findings. Our subject is an institution which can provide a just alternative to war. Our account takes 9 pages. It can be read in a few minutes. For centuries, mankind (especially mothers) have watched and protested in appalled amazement as political leaders have led their citizens into a process of waste, disruption, disaster and terrible suffering called "war." Once started, the process is almost unstoppable for psychological reasons - pride, propaganda and many others. Yet, for over 50 years, there has existed an institution that could have helped to avoid many of these wars using international law. The countries of the world are already bound by the UN Charter to seek judicial settlement before going to war. Yet this institution, the International Court of Justice, is largely unknown, unreported, underpaid and unappreciated. Its own parent organisation, the UN, of which it is the principal judicial organ, does not report its work in its own literature. WHY? Please read on and make your own judgment. Our suggested answer is that to seek judicial settlement involves politicians, national and international, in admitting that they are subject to law and that this risks undermining their power. They will not willingly do this and must be encouraged by ordinary citizens to accept that the processes of War are obsolete and unacceptable and that human survival depends on the practical application of law and justice.
We acknowledge with thanks the comments, assistance with revision and encouragement given to us by Judge Rosalyn Higgins.
Christine Soane, Peter Norris Cabbage Hall Tweed Green Peebles Tweeddale UK EH45 8AP Tel: 01721 720371 No copyright is claimed on this booklet
Copies of a later edition revised by Beverley Chipp, former Chair of INLAP, are available from: 67 Summerheath RdHailsham, Sussex BN27 3DR, UK +44 (0) 1323 844 269, geowcpuk@gn.apc.org
GOING TO COURT - NOT WAR
An introduction to the International Court of Justice
Introduction
In our private lives, we recognise immediately the value of law in the settlement of disputes between people. 'It may not be infallible but the principle of deciding a dispute by having laws and Courts to apply them is universally accepted.
Is there any equivalent process available at international level which could adjudicate disputes between nations and replace the awful alternative of war or sanctions?
Yes, there is. It is the judicial organ of the United Nations and is called the International Court of Justice (ICJ) or the World Court.
If the legal system were operating in the way intended, many international disputes could already be resolved by the process of law, not war. But there is almost total ignorance, even among politicians and the judiciary, of the possibilities and implications of the Court's existence. Its judgments are sparsely reported in the media. Far too little attention is given to it in schools and universities, and hardly any outside law faculties. There is no simple literature on the Court and its work.
Two recent Presidents of the Court have appealed for help in publicising its work and potential. This booklet is a response to that appeal.
'The Court's jurisdiction is in no way limited as to subject matter. The environment, conservation, human rights, the law of the sea and the rest are without exception within the ambit of the Court's jurisdiction."
Sir Robert Jennings, then President of the Court, speaking in 1991
The World Court
The World Court has existed in its present form since 1946, as the principal legal organ of the United Nations (UN). It is situated at the Peace Palace at The Hague in the Netherlands.
The Court consists of 15 judges drawn from the different legal systems in the world, elected by the UN. These Judges are under oath to act totally independently. They are, therefore, independent experts on international law, not representatives of their home States.
At the Court, there is no right of veto and no political patronage. The Court takes its decisions on the basis of law, following a most meticulous examination of each case.
The two functions of the Court are to decide legal disputes between States and give advisory opinions to certain international organs and organisations in accordance with international law.
All 15 Judges are involved in the process of reaching a judgment. This does not prevent the Court acting swiftly when necessary: one judgment was given after 3 weeks.
Only States may be parties to cases before the Court. Advisory opinions are given only to public international organisations.
The supreme importance of the Court has been described thus:
"There is today no other judicial organ in the world which has same capacity for dealing with the problems of the international community as a whole and offers States so wide a range of opportunities for promoting the rule of law
"From a summary of its judicial activity, it can be seen how the ICJ has done all that it has deemed possible to fulfill its task of deciding legal disputes between States and assisting the operations of international organisations by giving them its opinion on legal questions. The disputes that have come before it have covered the most varied aspects of public and private law, have concerned all parts of the globe and have necessitated an examination of various legal systems and of wide-ranging State practice, as well as the international law of international organisations.
"It will be seen that not every case with which it deals has to be of paramount significance, and that it is not necessarily every aspect of a particular case which has to be submitted for its decision. What matters is that the Court should help in resolving disputes and thereby contribute to the maintenance of peace and to the development of friendly relations among States."
ICJ Handbook 1986, p77
Is use of the Court a matter of choice?
States have a duty under the UN Charter to solve disputes by peaceful means. Submitting a dispute to the Court for judicial settlement is one of those "peaceful" ways but the Court cannot make judgments unless the States concerned ask it to do so.
So, States may choose not to go to Court, but in so doing they are rejecting a most important, just and peaceful way of solving their dispute. In this sense, they are failing in their duty under the UN Charter if they choose not to seek a judicial judgment.
In 1985 the President of the Court, Nagendra Singh, reminded the UN General Assembly that the UN Charter requires legal disputes to be referred by the parties to the ICJ. He went on: 'And do not all States in contention claim to have law on their side? Why then should they not test that claim before the Court?"
Disputes, then, should be referred to the Court as a matter of course; seeking a judicial settlement should already be a routine process. It makes one wonder how many wars might have been avoided by this procedure. Why are governments not using it?
On 24 September 1996, Foreign Secretary Malcolm Rifkind said in a speech to the UN General Assembly that "the more we accept that international law must be the foundation of international relations, the safer we shall all be."
We were astonished when we learnt that in January 1994 the Secretary General of the UN had said:
"Everyone is now well aware that differences and conflicts between States must be settled by recourse to law (Were you aware of this?) It must, however, be acknowledged that international justice has not yet - far from it - become part, if 1 may venture to say of the customs of States."
He then called for popularisation of international justice, which is the object of this booklet.
"Knowledge of the Court's composition, its record, integrity and potential are all necessary before States will make the decision of entrusting these matters to the Court, but this is essential if the affairs of States are to be based on law. At the present time only 60 of the 188 States of the UN accept the compulsory jurisdiction of the Court. The UK is the only permanent member of the Security Council that has done so."
Are Court Judgments Effective?
According to Sir Robert Jennings, who was a World Court Judge for 12 years and was President of the Court from 1991 to 1994, the judgments of the Court have "enormous political clout" and are invariably effective sooner or later.
British Judge Rosalyn Higgins, the first woman Judge of the Court comments:
"People seem surprised that States are prepared to carry out the judgments of the Court. But their cynicism is generally misplaced for it fails to take account both of the momentum of the principle of jurisdictional consent and of the desire of States to "play it along". Let me give an example. Libya had since the early 19601 contested the Aouzou Strip, generally regarded as lying within Chad. The question of title to this territory came to the Court. For fourteen years Libya had actually had a military presence in this territory The Court found the territory to be Chad's. And within four months Libya withdrew its army from Libya.
Judges of the Court are frequently asked, "But can you enforce your judgments?" The consent-based nature of the Court's jurisdiction has its own implications for compliance. There is provision for recourse to the Security Council for the enforcement of judgments. The Court's judgments are invariably complied with, whether they are judgments on jurisdiction or judgments on the merits."
Another example occurred in 1992 when the war that had started between Honduras and El Salvador ceased when they decided to refer the dispute to the Court and abide by the judgment.
As the ICJ handbook (1986) comments (p64), "The mere fact of bringing a dispute to the Court already constitutes a step towards pacification" and a Court judgment is always an "honourable conclusion" to a dispute, even if the result is unwelcome. As more people learn of the proper role of the Court, the use and effectiveness of the Court must increase even further.
Is the Court independent?
A case that has been dealt with by the Court during 1995/96 is of special importance in demonstrating the Court's independence.
In December 1994, the General Assembly of the United Nations requested the Court "urgently to render its advisory opinion on the following question.. Is the threat or use of nuclear weapons in any circumstances permitted under international law?"
The five permanent members of the Security Council, who are nuclear powers, opposed this question being put to the Court. After it was put they asserted that the Court should refuse to answer it.
Yet the Court decided, by 13 votes to 1, to answer the question and gave its opinion on 8 July 1996, thereby providing an authoritative statement of international law on this issue, Its findings were that threat or use of nuclear weapons is governed by two separate sources of law: 1) the UN Charter Part 2.4 and 51; 2) the laws governing armed conflict, particularly those of the principles and rules of international humanitarian law.
They concluded from these laws that threat or use of nuclear weapons would generally be contrary to the UN Charter and laws of armed conflict, particularly humanitarian law. The only qualification noted to this rule was an extreme case of self-defence where the very survival of a state was at stake. Under that condition, if the weapons complied with humanitarian law, threat or use might or might not be lawful.
They then unanimously added an extra opinion that "there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament..."
So, in the face of opposition from the most powerful group of states in the world, the Court proceeded to give a clear statement of existing law that shows their present nuclear policies to be generally unlawful, and tells them that they have, an obligation to complete a prohibiting convention.
There is no institution in the world that could have undertaken this independent legal clarification other than World Court.
Already some states (UK included) are querying the status of advisory opinions, hoping to be able to disregard them. However, there is no doubt that the authority and prestige of the Court attach to its advisory opinions. To accept and implement its rulings strengthens the role of international law and the authority of the Court. The nuclear states and the potentially proliferating nuclear states now have an opportunity to do this. To do otherwise is to undermine the credibility of the international legal order.
The "good news" that prompted us to compile this booklet Going to Court Not War has been confirmed in a very dramatic way by this advisory opinion, not only because it has demonstrated the independence of the Court but also its willingness to tackle an issue of global importance to which international law has not hitherto been specifically applied.
This is part of the declaration of Judge Mohammed Bedjaoui, the President of the Court at that time, with reference to the Advisory Opinion.
"...With nuclear armaments humanity is, as it were, under suspended sentence. This terrifying instrument of mass destruction has become a part, for half a century of the human condition. Nuclear armaments have entered into all calculations, all scenarios, all plans. Since Hiroshima, a morning on 6 August 1945, fear of them has become little by little man's first instinct.
"...A long path still has to be covered to exorcise from mankind this new terror which revives the ancestral fear of a bolt of lightning on their heads from a thundery sky. But the situation of twentieth century mankind is distinguished in certain respects from that of its ancestors; it is armed with knowledge; it is open to its own self-destruction; its anxieties are better grounded, Though endowed with, reason, mankind has never been so unreasonable; its destiny is clouded over; its conscience is obscured; its vision is troubled and its ethical guidelines fall like dead leaves from the tree of life.
"...Mankind has made itself a perverse and permanent blackmail. It must be capable of getting rid of it. The Court has a duty to take its part, however minimal it may be, in this work of salvation for humanity; it does it in all conscience and all humility, taking account of the limits imposed on it on the one hand by its Statute and on the other by the applicable international law"
The extent to which the Court's judgment will influence States' behaviour is not yet known. But, just as it was a citizens' initiative that started the process that gave the Court this opportunity to demonstrate its independence and legal authority, so it now requires a similar initiative to ensure that the law is implemented.
Like any other law - and this has the potential for saving humanity from self-inflicted annihilation - it needs "political will" and resources if it is to become a reality.
Raising awareness of the Court
Until recently, insufficient use was made of the Court. There is an urgent need to change this state of affairs. When the dangers involved in armed conflict are so terrible, governments have a duty to their citizens and to the world to do everything in their power make sure all disputes are settled peacefully.
Not enough people know of the Court's work and potent. Even politicians, judges and academics are frequently not well informed about it.
President of the Court, Judge Singh, in 1986 even made a personal gift of a huge brass plaque in the form of the Court's emblem to the United Nations building in New York. His purpose was to remind the UN General Assembly itself of the paramount importance of their own iudicial body, thousands of miles away in The Hague!
He described the functioning of the whole UN machinery & three-wheeled mechanism of legislature (General Assembly), executive (Security Council) and judiciary (World Court). As in the governance of nations, unless the legislative and executive wheels accept the authority, and ensure the independence of the judiciary, their actions may not be based on law and there can be confidence that justice is being done.
At the same time, he made a special appeal to universities to awaken and raise popular consciousness regarding the role of law". He believed "such awakening would solve all the world's problems". What a challenge!
If this sounds too idealistic, please read more of his speech in a later section.
This appeal was reinforced in February 1994 by a recent former President of the Court, Sir Robert Jennings, speaking at the University of Edinburgh. He asked his audience to do everything they could to promote the Court and its work.
Increased use of the Court
During the last few years, more and more countries have become aware of the real independence of the Court. Before the USA-Nicaragua case, many countries suspected the Court of being another part of the Western power system. Since the demonstration of its independence in this case there has been a great increase in the number of cases before the Court, which recently stood at 14. Yet early in 1996, the Court suffered a budget cut due to a UN financial crisis and in late 1997 when this booklet was published it still had inadequate typing and translating facilities and no information or public relations staff.
As more people learn of the Court's work and potential, we hope they will insist on the Court being given the facilities it needs, a trivial cost compared with those of armed conflict or of UN peacekeeping once a conflict has started. This insistence is particularly necessary in those countries which are not paying their contributions to the UN. Even information sheets put out by the UN contain no news of the Court and its work.
"Those who wield power naturally oppose international law because such law would impose limits on the use of power and require peaceful resolution of disputes. Power prefers to have its way..."
Ex-US Attorney-General
Meeting the challenge
To meet this challenge, it is urgently necessary to encourage interest in learning about the Court in schools, universities, Courts and homes, so that people can become part of that growth of understanding. Some have already begun to do this through the World Court Project. This international citizens' initiative helped to bring the issue of the disputed legal status of nuclear weapons before the Court. People can help to promote this vision of 'Peace through law" by awakening their local politicians, universities and judiciary. Through this, governments will come to see that it is not only right and lawful, but their duty under the UN Charter to solve their disputes by recourse to law, not war. As in our private lives and disputes, nations do not have a choice of law or force.
STATEMENTS CALLING FOR INCREASED USE OF THE COURT
1. Extracts from a UN press release: 25 Jan 1994
SECRETARY GENERAL SAYS INTERNATIONAL COURT OF JUSTICE IS A BEACON THAT MUST CARRY THE LIGHT OF INTERNATIONAL LAW
Urges Member States to Accept Court's General Jurisdiction without Reservation by Year 2000
The International Court of Justice is not only, as the Charter says, "the principal judicial organ of the United Nations", but also one of the essential participants in the actions which we are all conducting, each in our own field, for international peace. In fact, the International Court of Justice has, above all, the mission serve as the beacon that must carry to the furthermost reaches of the world the light of international law.
In the context of the United Nations, it (the Court) contributes fully to the grand objectives of peace assigned to us by the Charter.
In this field, the Court has been able to demonstrate that it has a particularly exacting conception of its role. The legal disputes that are submitted to it are often no more than the normative translation of deeper political conflicts. Everyone is well aware of this. And the resolution of these legal disputes by the Court can play a decisive role in the political settlement of the underlying conflict. The Court has had occasion to affirm this itself and to underline it emphatically. It was with this in mind that I myself placed emphasis, in the Agenda for Peace, on the eminent role of' International Court of Justice in this area.
I urge once more that all Member States should accept the general jurisdiction of the International Court under Article 36 of its Statute, without any reservation, before the end of the United Nations Decade of International Law in the year 2000.
Everyone is now well aware that differences and conflicts between States must be settled by recourse to law. It must, however, be acknowledged that international justice has not yet - far from it- become part, if I may venture to say, of the customs of the States.
It is, therefore, necessary to "popularise", in the best sense of the term, international justice. States must understand that resort to the World Court is an additional pillar in the structure of inter-State life. The regular functioning of justice contributes fully to the well-being of society. Hence, we must never forget the pedagogical work in this area which we are all called upon to perform vis-à -vis the Member States.
In conclusion I should like to say a few words about your role in the advisory field. I note that, in recent times, relatively few requests have been made to the Court for advisory opinions. And yet every State needs to be convinced of the essential contribution which the opinions of the Court can make to international action for peace.
Advisory opinions are one of the surest means of contributing to the regulation of this institutional system of ours (i.e. the UN organisation)
"It is to be hoped that a keener perception by the international community, both of the nature of the mission entrusted to the Court and of the potential of its advisory procedure, will soon give a fresh impetus to recourse to that advisory function, which is so fundamental for an international community aspiring to be governed by the rule of law."
President of the Court, Bedjaoui, July '96
2. Mr Boutros Boutros-Ghali, UN Secretary-General, in 1992 in "An Agenda for Peace";
'The docket of the International Court of Justice has grown fuller but it remains an under-used resource for the peaceful adjudication of disputes. Greater reliance on the Court would be an important contribution to United Nations peacemaking In this connection, 1 call attention to the power of the Security Council under Articles 36 and 37 of the Charter to recommend to Member States the submission of a dispute to the International Court of Justice, arbitration or other dispute-settlement mechanisms. I recommend that the Secretary-General be authorised, pursuant to Article 96, paragraph 2, of the Charter, to take advantage of the advisory competence of the Court and the other United Nations organs that already enjoy such authorisation turn to the Court more frequently for advisory opinions. "
3. President of the Court, Judge Negendra Singh, in 1986, speaking to the General Assembly of the United Nations:
"To achieve peace and progress, in other words, States have to rise above their immediate ambitions and, it may be, sacrifice not their sovereignty - not that at all - but some transient self-interest in order to promote the common interest of all. Where they fail in this, they must also fail to create the law on which harmony must rest. But I may be told that it is not for the International Court of Justice to tell States how to set about their legislative business: that the Court need only wait for disputes to be referred to it, and then must make use of the legal tools at its disposal, whatever their provenance mode of manufacture: that with a string of good judgments success will breed success, and to turn to the Court will then become a matter of course. However that may be, the trade-off or the package deal is more than ever the favoured method of resolving disagreements. And who is to complain if all parties are satisfied? Yet, evidently, in such bargaining, and even in the bargaining of a legislative conference, the legal merits of issues may go by the board. If, therefore, the parties to the Statute of the Court wish to enhance the usefulness of that institution, I would urge them to isolate the legal issues to the Court instead of waiting for the. opportune moment which they imagine will help them to impose their view - for that propitious moment may never come, or it may come first for their opponent. Of course, going to Court always implies a risk of losing, but also a chance of winning. Moreover, even the losing will be mitigated, since both sides will be the gainers by having one dispute the less and by having strengthened the machinery of international adjudication. A gain to justice is indeed a gain, to all."
Judge Nagendra Singh appeals to universities:
There must be some awakening or raising of popular consciousness regarding the role of law The best way to achieve this aim would be to activate the universities of the world. An ancient saying of my country is that when humanity is in distress, it should go to the centres of learning. The universities, which serve to shape the future generations of mankind, are responsible centres of learning which determine the shape of things to come. They must be activated to work for peace. Professors of International Law could really be designated Professors of Peace so that, with such a professor on the staff at each university, students would be taught about the principles of Peace as enshrined in the United Nations Charter. The Charter is a foundation, a constituent instrument of the highest order, apart from being a general treaty and this is its great distinguishing characteristic. It is a higher law, a fundamental law of the whole earth and, as such, now stands supported by an institutional structure. The Charter should be made known to the common man by the universities and there should be an awakening of the popular consciousness.
"I would hope that, throughout the world, there might be an awakening of the people, that men might know the principles of law and become aware of the existence of international law, conscious of the fact that respect for the judicial process is a cardinal virtue of mankind. Such an awakening would solve all the world's problems."
He concludes his speech thus:
The International Court of Justice has proved to' be one of the successful organs of the United Nations. Yet for certain periods of its history it has been regrettably under-used. This has been formally recognised by this Assembly, and here I need only cite Resolution 3232 (XXIX), adopted in 1974, and the Manila Declaration, approved in 1982, both of which devote lengthy paragraphs to exhorting States to take a positive and active attitude to the role of the Court in the peaceful settlement of disputes. The same concern is evident in the recent valuable study on the role of the Court produced by the Asian-African Legal Consultative Committee, which has been circulated to the Assembly. What all these exhortations call for, in fact, is that States make the possibility of judicial settlement a constant of their diplomacy.
"But why not go to the root of the matter and recall what Chapter VI of the Charter, which deals with the pacific settlement of disputes, lays to the charge of States in regard to the Court" Article 36 presents it as an axiom that legal disputes should as a general rule be referred by the parties to the International Court of Justice. And do not all States in contention claim to have law on their side? Why then should they not test that claim before the Court and why do they not "as a general rule", refer legal issues to the Court?
"Of course, I shall not over- simplify matters, but the principles of international law and of international adjudication are consecrated by the Charter. Therefore, while I salute the first 40 years of the United Nations - allow me to express the profound hope that well before another 40 years have passed, these admonitions of the Charter will be consistently honoured in the observance. The Court will then feel happily privileged to be playing its full part by serving the community of nations through the judicial settlement of disputes. "
The Nuremberg Principles of International Law
CHARTER OF THE UNITED NATIONS
Preamble
We the people of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundament human rights, in the dignity and worth of the human person, in the equal rights of men and women, and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom...
Article 2
The Organisation and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles:
1. The Organisation is based on the principle of the sovereign equality all its members....
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence any state, or in any other manner inconsistent with the Purposes of the United Nations.
Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their disputes by such means.
"...nations shall not lift up sword against nation, neither shall they learn war any more." Isaiah 2.4
To help spread the good news, perhaps this Questionnaire on the International Court of Justice may be useful. The answers are all in the text,
1. Where is the 1CJ? 2. Who elects and pays the Judges? 3. How many Judges are there? 4. Are there any women Judges? 5. Is it a full-time job? How long for? 6. Do the Judges represent their countries? 7. Have any countries got more than one Judge? 8. On what basis do the Judges make their judgments?
11. a) How many countries already accept the Court’s compulsory jurisdiction? b) Does the U K? 12. Who is responsible for enforcing the Court's judgments? 13. a) Name 2 countries which were at war and decided to go to Court instead.
Further details of the work of the Court can be found in the ICJ Handbook which is available from:
The Registrar The International Court of Justice Peace Palace 2517 KJ The Hague The Netherlands
The Court also publishes regular bulletins on cases submitted and judgments delivered.
THE QUALITY OF INTERNATIONAL LAW
Sir Robert Jennings, past President of the Court said:
The Judges of the Court are from many different parts of the world, from different forms of civilisation, from different cultures, and, not least, from very different legal systems.
The layman's question about the Court is always the same: how do you manage to have a coherent and sensible and useful deliberation in those circumstances? Indeed, how do you manage to decide anything?
The answer is that, in practice, this problem hardly arises. There is disagreement and argument, of course, as indeed there should be. But it is disagreement with a common understanding of the material and the authorities to be used. This is because judicially we all speak one common language called public international law. It is indeed a common legal language and a universal system. Our experience in the World Court, and that of generations of our predecessors, proves that point.
Apart from the quality of humanity itself which we all share, international law is a language which in our experience transcends different tongues, cultures, races and religions.
I wanted to mention this peculiar quality of international law as a common and universal system, because it is one o those tremendously significant and important facts which are commonly not even noticed in the world generally.
Let us therefore tell more people about its great quality of being a common legal language for all of us, and the common property of us all." |
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