The International Court of Justice and Its Legal Functions

One of the principal organs of the United Nations is the International Court of Justice (ICJ), which was created at the San Francisco Conference after the Second World War. At the first session of the UN General Assembly and Security Council in February 1946, the first members of the ICJ were elected to their positions, and they began receiving cases a year later. Currently, the Court consists of 15 judges elected by the General Assembly and the Security Council in simultaneous, separate elections. A judge must be elected by an absolute majority.

Judges serve nine-year terms, and five judges are elected every three years. No more than one judge may come from any UN member state, and a judge does not represent their own government while serving as an ICJ member. Any state that is a party to the ICJ Statute may propose a candidate. After new judges take office, the ICJ holds an internal election to choose a president and a vice-president, who serve for three years in those roles. A judge may run for re-election, and they may not be dismissed before the end of their term unless the other judges unanimously agree that the judge is no longer fit to serve. (This has never happened.)

The Jurisdiction of the ICJ

The International Court of Justice has two forms of jurisdiction:

• Contentious jurisdiction – resolving disputes between states
• Advisory jurisdiction – issuing non-binding opinions upon request

Resolving Disputes Between States

The first form of jurisdiction granted to the ICJ is known as contentious jurisdiction. This involves resolving disputes between states under international law. No entity other than a state may bring a dispute before the ICJ, and no individual may bring a claim. The ICJ is generally open to any state that is a party to the ICJ Statute, and it may be open to a non-party state in some situations. According to Article 35 of the ICJ Statute, a non-party state may access the ICJ under conditions provided by the UN Security Council and subject to the provisions in treaties that were effective when the ICJ Statute took effect. However, these conditions must not create a situation in which parties stand before the ICJ in unequal positions.

An important limitation on ICJ jurisdiction is consent. The ICJ cannot review a dispute between states unless each state involved has recognized its jurisdiction. ICJ decisions are final, binding, and generally not subject to appeal, meaning that they permanently affect the legal rights and obligations of the states involved in the dispute.

Issuing Advisory Opinions to Public International Organizations

The ICJ provides advisory opinions to five UN organs and 16 specialized agencies. While the General Assembly and the Security Council can seek opinions on any topic, other organizations can seek opinions only on topics specifically related to their activities. The UN Secretary-General or the head of the organization seeking an advisory opinion starts the process by submitting a request to the ICJ Registrar. The ICJ then will gather and review information on the topic through written and oral proceedings as needed.

In response to a request for an advisory opinion, the ICJ identifies the states and public international organizations that could provide useful information. (The member states of the organization requesting an advisory opinion are likely to be among those contacted.) Initially, each state or organization may provide a written statement to the ICJ and potentially written comments on the statements of other states or organizations. The ICJ then has the discretion to schedule oral proceedings. It will release the written statements to the public when the oral proceedings begin.

Advisory Opinions Are Not Binding (But…)

A key distinction between ICJ judgments and advisory opinions is that advisory opinions are not binding on the organizations that request them. Organizations can determine how much weight to give them. Generally, though, ICJ opinions receive substantial deference. They help shape international law by resolving ambiguities that could cause disputes.

Source: www.justia.com