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The International Court of Justice by Thirlway, Hugh

I The Court, 1 The Court: Principal Judicial Organ of the United Nations

From: The International Court of Justice

Hugh Thirlway

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 18 August 2019

Subject(s):
Subsidiary organs of international organizations — International courts and tribunals, powers

(p. 3) The Court

Principal Judicial Organ of the United Nations

A.  Introduction

The International Court of Justice was established by the United Nations Charter, and came into existence with the election of its first members (judges) in February 1946. It was created as the successor to the Permanent Court of International Justice (PCIJ), established pursuant to Article 14 of the Covenant of the League of Nations in 1921, and was modelled closely on that body.1 Its constitution and operation are regulated, first by the Charter itself, Chapter IV (Arts. 92–6); secondly by its Statute, to which Article 92 refers, and which is there stated to be ‘an integral part’ of the Charter; thirdly by the Rules of Court, made by the Court itself under a power conferred by Article 30 of the Statute. The Rules may from time to time be amended by the Court; it is entitled also to propose amendments to the Statute, under Article 70 thereof. These, however, may only be effected by the same process as for amendment of the Charter itself (see Charter, Art. 108).2

It is not, however, the international equivalent of a national supreme court—a body of worldwide jurisdiction, empowered to pass judgment on the legal rights and duties of all States from a position of superiority and supervision. No such tribunal exists. The International Court can better be seen as a standing mechanism available for the peaceful settlement of disputes between States, to the extent that they wish to make use of it. No dispute can be the subject of a decision of the Court unless the States parties to it have consented to the Court’s jurisdiction over that specific dispute, or over a class of disputes of which that dispute is one. Access to the Court is enjoyed by all members of the United Nations, but its ‘compulsory jurisdiction’ (a somewhat misleading term) is accepted by only a fairly small number of States, and for the most part with reservations that limit effective jurisdiction to certain classes of dispute, as will be explained in Chapter 5.

(p. 4) The Court is composed of fifteen judges, elected for a term of office of nine years, supplemented in some cases by judges ad hoc nominated by the parties; the system is examined in more detail in Chapter 2.

B.  The Court and the United Nations

The Court is named in Article 7 of the Charter as one of the ‘principal organs’ of the United Nations, along with the Security Council, the General Assembly, the Economic and Social Council, the Trusteeship Council, and the Secretariat. It is therefore in principle not subject to any direction or control by any of the other principal organs; and there is no specific provision elsewhere in the Charter regulating the Court’s relations with other organs. It would clearly be in conflict with the basic principle of the independence of the judiciary if any such control were to exist. There are, however, two ways in which pressure or influence could, at least in theory, be exercised by the General Assembly.

The election of judges is in the hands of the Security Council and the General Assembly, acting separately (Statute, Arts. 4–12), and arrangements are made so that information as to developments during the voting in one organ do not become known to, and thus influence, the other. It is an established convention that candidates (of their nationality) put forward by the five permanent Members of the Security Council will be elected, and the remaining seats are treated as appertaining to various geographical groupings of States. Even taking this arrangement into account, any sort of ‘packing’ of the Court seems to be excluded.

Under Article 16 of the Charter, it is the General Assembly that is empowered to ‘consider and approve the budget of the organization’, and the Court’s budget forms part of this, and need not necessarily be approved as submitted by the Court, but this can hardly be regarded as a form of control or influence exercised on the judges.3 To make assurance doubly sure, Article 32 of the Statute (an integral part of the Charter) provides that the judges’ salaries and allowances ‘may not be decreased during the term of office’; this has raised an interesting constitutional problem.4

By Resolution 61/262 (4 April 2007) the Assembly made certain adaptations of the remuneration of Members of the Court. One consequence of the resolution—not intended as such but recognized as unavoidable—was that there would be a significant difference between the remuneration of judges elected before 1 January 2007 and those elected after that date.5 The President of the Court had expressed (p. 5) the Court’s ‘extremely serious and deep concern’ that the proposed action ‘would not be in conformity with the Statute of the Court’; it would infringe ‘the equality of all judges’, which was ‘a fundamental principle underlying the Statute’.6 After some further exchanges, the matter was considered by the UN Legal Counsel, who took the view that ‘the concerns raised’ by the Court ‘are justified’.7

The proposal was replaced by a revised text which was regarded as not open to the objection of breach of equality.8 If, however, the Legal Counsel had taken the opposite view, or if the Assembly had declined to be guided by him, and implemented the original proposal, what would be the situation? In a lengthy memorandum supplied by the Court to the Assembly, it stated that it ‘considers that matters relating to the proper administration of justice require it alone to authoritatively interpret the Statute’.9 In the context of its judicial work, this is undoubtedly true, ‘authoritatively’ then meaning ‘in a manner binding on the parties before it’ in a contentious case; in advisory proceedings probably also, in so far as the interpretation was what was requested, or necessarily entailed in replying to the request. The assertion that this is also the case when it is the lawfulness of the Assembly’s exercise of the powers of governance conferred on it by the Statute does not seem to follow. Nor is there any way in which effect could be given to the Court’s view so far as it differed from that of the Assembly. The Court would have had no alternative but to accept the new system; principal organ or no, it cannot evade the control of the purse-strings enjoyed by the General Assembly.

In what does the character of the Court as a court differentiate it from the other principal organs of the United Nations, or from other international bodies in general? Several points may be noted. First, its function is limited to deciding disputes; it is not in any way a legislative body, nor a forum for negotiations, nor does it have any political functions. Secondly, it shares with the Security Council, but not the General Assembly, the quality of having power to decide, to settle definitively any appropriate issue regularly brought before it; and such decision is binding on the parties to the dispute, and on them only. (The advisory opinions of the Court are non-binding advisory opinions, as their name implies; in giving these it may perhaps be considered as being to some extent—but only to some extent—transformed from a court into an advisory committee of jurists.) Thirdly, neither the Court nor any State other than the parties to a dispute has any power of initiative: it is only when it has been ‘switched on’, so to speak, by being seised of an issue that it can take action, and a contentious case can only be instituted by one of the parties to the dispute.10 An international dispute may be festering, and the situation may be (p. 6) crying out for the sort of unprejudiced and non-prejudicial holding operation that could result from a court Order for provisional measures; but it is only when a party initiates proceedings that the Court can make its contribution.11

The judicial work of the Court is generally quite distinct from the operations of the other principal organs; but there have been occasions when it has found itself involved in a matter of which the Security Council has also been seised.12 There is nothing relating to the Court in the Charter parallel to the provision in Article 12 that ‘[w]‌hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests’.13 When in 1979 the US Embassy in Tehran was seized by militants, the US brought the matter before the Security Council, and also instituted proceedings against Iran. The Court thought it appropriate ‘to examine, ex officio, whether its competence to decide the present case, or the admissibility of the present proceedings, might possibly have been affected’ by the parallel procedures involving the Security Council.14 Its conclusion was that ‘[i]t is for the Court, the principal judicial organ of the United Nations, to resolve any legal questions that may be in issue between parties to a dispute; and the resolution of such legal questions by the Court may be an important, and sometimes, decisive, factor in promoting the peaceful settlement of the dispute’.15 There may be a judicious hint here that the Council should stay on its own side of the fence, and not venture to determine a legal issue! Subsequent cases have confirmed the approach outlined in the US/Iran case, which has been called ‘functional parallelism’: in the Nicaragua/US case in 1984, the Court observed that ‘[t]he Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions’, these being thus ‘separate but complementary’.16

C.  Seat and languages

Article 22 of the Statute declares that ‘[t]‌he seat of the Court shall be established at The Hague’; like its predecessor, it occupies premises in the Peace Palace, under an agreement between the United Nations and the Carnegie Foundation, the owner of (p. 7) the building. Unlike the UN Headquarters District in New York, it is not extraterritorial, but Netherlands territory.17 Any change in its seat would therefore require an amendment of the Statute; Article 70 of the Statute empowers the Court itself to propose changes in the Statute, and the Court did in 1969 present such a proposal, to insert the words ‘or at such other place as shall at any time be approved by the General Assembly on the recommendation of the Court’. In support of the proposal, the Court suggested that a ‘world court’ should not be too closely linked with a particular locality.18 There was no support in the Assembly for the proposal, and it was allowed to drop.19 A new building for the Court in the grounds of the Peace Palace was then constructed at the expense of the Dutch Government, and inaugurated in 1978.20

Article 22 adds that the provision as to the seat ‘shall not prevent the Court from sitting and exercising its functions whenever the Court considers it desirable’. It has never ‘sat’ in the sense of holding hearings or deliberations elsewhere, but it has (in the Gabcíkovo/Nagymaros case) exercised its power under Article 66 of the Rules to ‘exercise its functions with regard to the obtaining of evidence at a place locality to which the case relates’.

The Statute provides (in Art. 39 para. 1) that ‘[t]‌he official languages of the Court shall be English and French’.21 This appears in the section of the Statute headed ‘Procedure’, but it is perhaps more fundamental than might appear. In the first place, the Statute and the Rules themselves exist in the two languages; the Statute, as an annex to the Charter, also exists in the other official languages of the United Nations, and these texts are equally authoritative for purposes of interpretation,22 even though only the French and English texts are ‘official languages of the Court’. The Court, when interpreting the Statute (as is necessary from time to time) may, and possibly should, take into account all five language-texts. In practice it does not seem to have done so;23 but the regular presence on the Bench of judges of Russian (p. 8) and Chinese nationalities, and from Spanish-speaking countries, suggests that there is unofficial opportunity for verification. The two official texts, French and English, thus have equal status: if they differ, neither prevails over the other. Some examples exist of textual cruces resulting from discrepancies between the two texts; but generally the Court has been able to resolve any apparent inconsistency without doing violence to either text.24

Article 39 of the Statute provides that the parties may agree to conduct the case wholly in one of the two official languages25 (and in that case the judgment will be given in that language); otherwise each party may use whichever language it chooses, and is free to employ both. The Court thus works in the two official languages, in the sense that all documents submitted to it are, in principle, to be in the one language or the other (or both); and in principle all documents are translated by the Registry (or the party submitting) into the other language.26 Similarly, in principle all speeches in court have to be made in one or other of the official languages.27 Consequently, while there is no provision in the Statute that candidates for election to the Court must be able to work in at least one of the official languages, this is effectively an essential requirement;28 at the present time, there is never any difficulty in finding candidates with this qualification. Article 51 of the Rules deals in more detail with the use of languages: the underlying principle is that if a pleading, document, or speech in court is in one of the two official languages, the party concerned does not have to supply a translation (or interpretation) into the other, but if it is in any other language, the Court must be supplied with a translation, into one or other of the official languages.

Footnotes:

1  Accordingly, reference to the jurisprudence of the PCIJ has frequently been useful to the Court in the past, but is becoming steadily less necessary. For the history of the two institutions, see O. Spiermann, ‘Historical Introduction’, in Zimmermann et al., Commentary.

2  A proposal for amendment of the Statute has only been made on one occasion: see sect. B.

3  In the aftermath of the hugely unpopular 1966 decision in the South West Africa case, a few voices were heard in New York suggesting that the Court be ‘punished’ by some reduction in its budget, but this was never a serious proposal.

4  See the brief but illuminating study by N. Blokker in The Governance of International Courts and Tribunals: Organizing and Guaranteeing Independence and Accountability, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2709626 (accessed January 2016).

5  There would consequently be a similar difference between judges ad hoc appointed before or after that date.

6  Letter of 3 April 2007, reproduced as UN Doc. A/1/8837, at. 1. The legal questions raised will be considered in Ch. 2 sect. B, in connection with the principle of equality among judges; here the issue is the limits (if any) of the powers of ‘governance’ (the useful term employed by Blokker (see n. 4) of the Assembly in relation to the Court.

7  UN Doc. A/62/538 Ann. I.

8  GA Decision 62/457, 3 April 2008.

9  UN Doc. A/62/538 Ann. II para. 32.

10  This is a general feature of international tribunals, the only exception having been the Central American Court of Justice (1907–14), which had power to ‘call in’ a case (Oxford Handbook of the History of International Law, ed. Bardo Fassbender (Oxford: Oxford University Press, 2012), 574).

11  Once seised of a case, the Court ‘may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures …’ See further Ch. 13.

12  This most commonly occurs in the context of requests for provisional measures, as the time taken by ICJ proceedings normally signifies that the action in the Security Council has been completed well before the Court is called upon to take a decision.

13  And cf. also Art. 36 para. 3, emphasizing the suitability of the Court for the settlement of inter-State disputes.

14  US Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 20 para. 39. Iran was not appearing in the proceedings, and as the Court noted (21 para. 40), no query had been raised in the Council.

15  [1980] ICJ Rep 22 para. 40.

16  Military and Paramilitary Activities in and against Nicaragua [1984] ICJ Rep 392, 436 para. 95. See also Genocide Convention (Bosnia v Yugoslavia) [1993] ICJ Rep 3, 19 para. 33; Armed Activities on the Territory of the Congo (DRC v Uganda) [2000] ICJ Rep 111, 126 para. 36.

17  During the German occupation of the Netherlands, a notice on the Peace Palace gates declared it international territory, and the occupying authorities respected this de facto.

18  It was rumoured at the time that relations with the Dutch Government were strained, and certainly it was around this date that a new system of precedence of judges vis-à-vis the diplomatic corps in The Hague was established, and plans were begun for a new building.

19  It left a legacy in the form of GA Resolution 2520 (XXIV), providing for the participation in the procedure for amendment of the Statute of States parties to the Statute but no Members of the UN. For an account of the handling of the proposal, see Shaw, ‘Article 22’, in Zimmermann et al., Commentary, 429–30, paras. 11–14.

20  The building was extended in 1997. In July 2014 it was discovered that asbestos was present in it, and it had to be temporarily closed for health reasons, reopening early in 2016.

21  Being in the Statute, this provision can be modified only by amendment of the Statute. During one of the Court’s internal sessions devoted to amendment of the Rules of Court, there was a move to confer a special status on Spanish, as a quasi-official language; but this did not find acceptance.

22  Charter, Art. 111. Curiously, the Court in LaGrand cited this article, in conjunction with Art. 92, to establish that the English and French texts of the Statute, an ‘integral part’ of the Charter, are equally authentic, but did not consider what significance, if any, the other three language texts might have.

23  See Military and Paramilitary Activities in and against Nicaragua, [1984] 392, 405–7, paras. 29–31 (Art. 36 para. 5); LaGrand, [2001] 466, 501–2, paras. 98–101 (Art. 41). This is also to some extent justifiable as the texts were originally drafted in English and French (see Judge Oda’s analysis of Art. 36 para. 5 in the first of these cases, [1984] ICJ Rep 478–81).

24  See, for example, the difficulty with the word ‘dispute’ in Articles 36, para. 2, and 60 of the Statute: below, Chapter 16, text and fn. 6.

25  See e.g. Art. 5 of the Special Agreement between Burkina Faso and Niger for their Frontier Dispute, [2013] ICJ Rep 44, 51.

26  This requirement used to be meticulously carried out; in the case of Barcelona Traction, for example, the time and the staff needed to translate the enormous mass of documents submitted on both sides placed great demands on the Registry. Nowadays it is possible to be more selective, while respecting the principle that a judge is entitled to call for any document to be translated into his working language.

27  Art. 39 para. 3 of the Statute empowers the Court to authorize a party to use a language other than French or English; in practice this means at the hearings, as a pleading drafted in another language can of course be translated before it is filed. The provision does mean that counsel who do not speak either French or English sufficiently competently may argue in their own languages; but nowadays there are few international lawyers who are not fluent in at least one of the official languages.

28  Rosenne, writing in 2006, was of the view that it would become ‘imperative’ that ‘some modification of the language rules and practice of the Court’ be made to temper this exigency (Rosenne, i, 362); if so, it would probably have to be informal, as amendment of the Statute is not lightly to be undertaken, and the additional expense for translation and interpretation would be considerable. The present writer’s experience as a witness of judicial deliberations is that use of more than two languages for that purpose would not be desirable.