Wednesday, January 23, 2008

Reform of ICJ

I have been using most of the source from internet. Some website such as http://en.wikipedia.org/wiki/International_Court_of_Justice and www.oycf.org/ Perspectives/25_063004/3.pdf is my reference. I also use the Charter of UN and ICJ Statute as the source to write this research paper.
In this paper, I get the idea from some scholar about the how to reform the ICJ plus my idea on how to reform the ICJ in order to foster the ICJ. By compare the different idea, I get the proper approach for the ICJ reforming.
This paper will show how to reform the ICJ jurisdiction and enforcement of judgment to make ICJ more effective.


The Reform of ICJ


I. Introduction

The International Court of Justice (ICJ) known as the World Court is one of the UN organ. ICJ is located in The Hague, Netherlands. ICJ is established in 1945 by the UN Charter and began work in 1946. ICJ is the successor of the Permanent Court of International Justice which was dissolved after the Second World War. ICJ is the judicial organ of the UN deal with the legal disputes. ICJ is composed of fifteen judges who are elected by the General Assembly and Security Council. The Court can settle the dispute submitted by the states or give the advisory opinions on legal question which ask by the states or some organ of UN such as General Assembly or Security Council. Thus, the jurisdiction of the Court is divided into two, the contentious jurisdiction and advisory jurisdiction. With these two jurisdictions, the Court doesn’t have compulsory jurisdiction over all states which cause the ineffectiveness of the Court. With this problem, we will discuss in detail in the next part whether what lead the jurisdiction of the Court ineffective and what the Court should do in order to solve these problems. This paper will show the idea of some scholars about how to reform the ICJ.

II. The jurisdiction of the ICJ

According to article 93 of the UN Charter, all member of UN can automatically be the parties to the Court. For non-member states, article 93 also provides the right to be the parties of the Court if they wish to and willing to be bound by the jurisdiction of the Court. For example: Switzerland used this method to become the party of the Court in 1948[1].
Article 34, paragraph 1 of the Statute of ICJ states that only state may be parties in cases before the Court. ICJ has the jurisdiction over only states. International organization or individual can not be the parties of the Court. Thus, they don’t bound by the jurisdiction of the Court. However, being a member state of UN or member state to the Court’s Statute doesn’t mean the states will be automatically bound by the jurisdiction of the Court. The Court has the jurisdiction over the states when the states accept the jurisdiction and willing to be bound by the jurisdiction. The Court doesn’t have compulsory jurisdiction over the states, both member states of the UN or member states of the Court’s Statute and non-member states.
The jurisdiction of the Court is divided into two parts: The first jurisdiction is the power to decide on the legal dispute which submitted by the states. This kind of power is called contentious jurisdiction. The second jurisdiction is advisory jurisdiction.

Contentious Jurisdiction

In contentious jurisdiction, the Court has the power to settle the dispute when parties agree to submit to the Court. Only state can be the parties can be the parties in contentious case. Individual, NGO, international companies, or self-determination groups can not be the parties in this case.
There are several ways for a state to access the contentious jurisdiction of the Court. First, the states which are the member of the UN are ipso-facto member of the Statute[2]. Thus, they can access to the Court automatically. Second, if the states are not the member of the UN, these states need to pay for the Court in order to access to the Court.
Beside the states can access to the jurisdiction of the Court, the Court’s jurisdiction can be found in several ways. First, the jurisdiction may be found in the special agreements. When the parties agree with each other to settle the dispute by the Court, they can make the agreement and notify the Court. The jurisdiction of the Court will comprise all the cases that the parties refer to it[3]. Second, the jurisdiction is provided in the treaties and conventions[4]. Most of the treaties contain a clause providing the ICJ power to solve the dispute. When states made the treaties or conventions, they usually create compromissory clauses in order to solve the problems when there is the conflict. These clauses usually use the ICJ as the tool to settle the dispute. Thus, ICJ’s jurisdiction also applies to the member states of the treaties or conventions in force. Third, jurisdiction of ICJ is found when state make optional clause declared that they recognise compulsory jurisdiction of the Court. Article 36, paragraph 2 of Statute of ICJ provides that “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.” The states can voluntary make a declaration to accept the compulsory jurisdiction of the Court conditionally or unconditionally which provide by article 36, paragraph 3. With the condition, states can accept the compulsory jurisdiction for the certain time or with a certain states they want. Finally, the court also has the jurisdiction base on the declarations make under the Permanent Court of International Justice’s Statute[5]. The Permanent Court of International Justice has transferred its jurisdiction to the ICJ. If a treaties or conventions which provide the jurisdiction to the Permanent Court of International Justice, the ICJ also has the jurisdiction over the case.
B. Advisory jurisdiction
Another jurisdiction of ICJ is giving an advisory opinion. The Court gives advisory opinion to the UN organ such as Security Council or General Assembly when they need the legal advice from the Court[6]. Other UN agencies may also request advisory opinion of the Court on legal questions. For example, World Health Organization (WHO) request for an advisory opinion on the legality of the use of nuclear weapons by a state during armed conflict[7]. In this case, according to article 96, the Court looks at three conditions in order to determine whether the Court has advisor jurisdiction over this case. First, the Court looks at the requesting agency whether they have a right providing by the Charter to request the opinion from the Court. Second, the Court looks at the opinion whether it is a legal question or not. If the Court found that it is not the legal question, the Court doesn’t have jurisdiction. Third, the question must be in the scope of the requesting agency activities.
In principle, the Court’s advisory opinions are only consultative. It is non-binding under the Statute of the Court[8]. Although the advisory opinion of the Court is useful and respected, it is not his judgment or regulation which can bind the state or any UN organs or agencies. It is just a legal advisory which help UN organ or agency to deal with the legal question which they may face. However, the advisory of the court still has essential effect on practice since the court follow the same rule and procedure that use for its binging judgment[9]. The Court is base on international law and legal reasoning to make the advisory opinion. Thus, the advisory of the Court is so effective.
III. The ICJ and the Security Council relationship
After the Court issue the judgment for the disputed parties, there is one thing must be done. Implement of judgment is the important step in the Court’s procedure. ICJ doesn’t have the power to enforce the parties of dispute to comply the judgment. This job is transfer to the Security Council if the parties fail to perform the obligation incumbent upon it under a judgment rendered by the Court[10]. The member of UN has the duty to comply with the decision of the ICJ. If the parties fail to comply, the Security Council must take action against that party. Security Council can use the economic or political sanctions to punish the state fail to comply the duty. If the sanctions don’t work, the Security Council may take more serious action against that state. The Security Council may use the arm force to enforce the state to follow the decision of the Court.
As Security Council play a role as enforcement body of the ICJ, they have a very close relationship with each other. ICJ is not effective if there is not enforcement of Security Council. The law which lack of enforcement doesn’t become the effective law for society. Although assembly can pass a very good regulation in order to maintain the public security, the regulation still not useful for the society if there is no police to enforcement the law by punishing the law breaker. Therefore, in order to maintain the effectiveness of ICJ, the enforcement of Security Council plays an important role.
IV. Reform of ICJ
A. Reform of Jurisdiction
There are some criticism arise by Bingbin Lu[11] on the jurisdiction of ICJ.
1. Ineffectiveness of the present ICJ
The ICJ is the world Court which is expected to settle the disputes among stats. However, the court still has been criticized for its ineffectiveness in dong its job. Only 63 states have recognized the compulsory jurisdiction of the Court (with or without reservation) through the optional clause system[12]. Compare to the member of the UN (192), the jurisdiction of the court apply only one-third of the member states. ICJ deal with less than 100 cases in more than 50 years[13]. Moreover, those cases are not the heavy case which is important for the international. In more case, the ICJ jurisdiction was challenged by the party states. As the result, ICJ dismisses almost half of these cases[14]. This shows the weakness of the Court in applying its jurisdiction over the state.
2. A compulsory jurisdiction
As discuss above, ICJ doesn’t have a compulsory jurisdiction over the member state of UN or member state to ICJ Statute. In principle, ICJ has compulsory jurisdiction over the states as long as these state declare themselves to be bound by the jurisdiction as providing in article 36, paragraph 2 of ICJ Statute, A dispute can be settle by the Court only if all concerned parties willing to submit the case to the Court. This character of non-compulsory jurisdiction over the state is because of the principle of sovereignty[15]. All states in the world include big states or small states, rich or poor states have the same equality and sovereignty. With international law, one state does not have jurisdiction over other states. They can not use their court to decide or punish other states. Therefore, ICJ also respects the principle of sovereign and independent state and adopts the non-compulsory jurisdiction principle. Mostly, ICJ plays a role as the third parties to settle the dispute peacefully rather than the world court which can settle all disputes with submitted to it.
Another reason for adopting the non-compulsory jurisdiction is the power of superpower[16]. After the WWII, USA and former Soviet Union, the superpower after WWII, didn’t accept the compulsory jurisdiction of ICJ. Most of the dispute with relative to the superpower rarely submit to the ICJ and rarely settle by ICJ.
Because of non-compulsory jurisdiction, the effectiveness of ICJ has been reduced. With this problem, there are many different ideas, some scholars advocate with compulsory jurisdiction while some scholars don’t. Bingbin Lu suggests that absolute compulsory jurisdiction should not be adopted. The idea of compulsory jurisdiction is utopian. The Court’s jurisdiction was limited when it was create because of preventing the ICJ from becoming a tool of both superpower (USA and former Soviet Union). Bingbin Lu said that to give ICJ compulsory jurisdiction would be too risk. Thus, to avoid this risk, he suggests the idea of establishing an appellate review procedure to review first level decision as the WTO dispute settlement mechanism. He also suggests that UN should reconstruct the international judicial system by creating the International Tribunal for the Law of the Sea and the International Criminal Court. Those new judicial organ may solve the problem by allowing the state more choice to choose. When the state found which court fix to them, they will accept the compulsory jurisdiction of the court.
For some point of view, I disagree with Bingbin Lu. I will suggest the UN to reform the ICJ jurisdiction. Without compulsory jurisdiction, the Court performs ineffectively. Some parties will reject the jurisdiction if they are optional to the jurisdiction. With about one-third of UN member have recognized the compulsory jurisdiction of the Court, the Court still lack of power to settle the dispute if another party of dispute is one state of other two-third. ICJ can not force the sates to accept it’s jurisdiction without the consent of the state. Unlike, domestic jurisdiction, the court has the compulsory jurisdiction and can hear the case which is submit by only one party. Therefore, for the party who is violated by another party has no any mechanism to protect their interest. Without any judicial mechanism to prevent he violation of right, there will be instability in international society. Small and weak states will not equal to the big and powerful states. Powerful states can use the non-compulsory jurisdiction principle to reject the ICJ jurisdiction when they are complained by other states. It seems there is no justice between weak and powerful states in international relation. Therefore, some states may try to dominate other state if they are not under the jurisdiction of ICJ. For this reason, it may create the war between disputed parties since there is no mechanism to solve the dispute. Without the involving of ICJ, party of dispute may use their means to solve their problem or to protect their interest or right. Some means will not cost much to international security, but some means such as using military force may cost much to international security. Therefore, if ICJ still play a role as third party and ineffective in settle the dispute, the world may in one day become nature state where the strong dominate the weak.
3. Enforcement of judgment
Enforcement of judgment is the important step which must be done in order to maintain the effective of ICJ. Without enforcement, the decision of the Court makes no sense to the parties. Without enforcement, there is no need to submit the case to the case. Thus, we can see the important of enforcement.
The parties of dispute must comply the decision made by the Court. If losing party doesn’t comply, Security Council, knows as the enforcement body of ICJ, will issue the resolution to force the losing party. The Security Council can put economic or political sanctions as the first step toward the losing party. If the state stills no tension to follow the judgment, the Security Council may use UN arm force to punish the state.
The problem of enforcement arises when the Security Council can’t issue the resolution. In order to issue the resolution, 9 votes of Security Council member are needed[17].For substantive matter such as enforcement of ICJ judgment, all permanent member need to vote without veto of anyone. Because of this veto power, some resolutions are never issued. It causes the problem of judgment enforcement. If the judgment is against one of the permanent member of Security Council or its allies, the resolutions will never be reached. One example is Nicaragua case[18]. As US is one party of the case, the judgment wasn’t enforce.
Through this example, we can see that there is no separation of power in UN system. ICJ is not the independent body since it can’t enforce its decision. Thus, it needs some approaches to solve this problem. Firstly, we can create a law or amend the UN Charter in order to separate the power of the Court and Security Council. By providing the power to the Court, it will increase the effectiveness of the Court in implement its job. Moreover, all the states who parties to dispute may trust on the Court since the enforcement is guarantee. Another way to ensure the enforcement of ICJ judgment is to forbid the veto power. We have two ways to forbid the veto power. First, when one party of dispute is permanent member of Security Council or its allies, we should take away their right for voting. Second, we also can give them a right to vote without veto power. This approach will decrease the change of permanent member to reject the issuing of resolution and increase the number of enforcement.
V. Conclusion
All in all, ICJ should act as the world court to settle the international dispute. Because the objective of the UN is to maintain the international security, ICJ should play an active role in settle the dispute in order to reduce the war which may happen by the dispute party. In order to perform its job effectively, ICJ need some reform on two important areas. First, ICJ needs to foster the effectiveness of its jurisdiction. By using the compulsory jurisdiction principle, the ICJ will increase its function in maintaining the international security. All state can use the ICJ as the mechanism to settle the dispute peacefully. Second, ICJ needs to foster its judgment enforcement. By allowing ICJ to enforce its judgment itself, the Court will be more useful. All state maybe more trust on the Court and provide more role to the Court in settle the dispute.

Reference:

- Statute of International Court of Justice
- UN Charter
- International Court of Justice. 10 January2008. .

Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .

Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ Reports 14, 158-60 (Merits) per Judge Lachs

Legality of the Use by a State of Nuclear Weapons in Armed Conflict 1996 I.C.J. 66 (Advisory Opinion of July 8)

[1] International Court of Justice. 10 January,2008. .
[2] Article 93 of UN Charter.
[3] Article 36(1) of ICJ Statute
[4] Article 36(1) of ICJ Statute
[5] Article 36(5) of ICJ Statute.
[6] Article 96 of UN Charter.
[7] Legality of the Use by a State of Nuclear Weapons in Armed Conflict 1996 I.C.J. 66 (Advisory Opinion
of July 8).
[8]International Court of Justice. 10 January,2008. .
[9]International Court of Justice. 10 January,2008. .
[10] Article 94 of UN Charter.
[11] Bingbin Lu, LL.M, law librarian, Transnational Law and Business University (TLBU), Seoul.
[12] Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .
[13]Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .
[14]Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .
[15]Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .
[16]Bingbin Lu. Reform of the International Court of Justice – A Jurisdictional Perspective.” June 30, 2004. .

[17] Article 27 of UN Charter.
[18] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ Reports 14, 158-60 (Merits) per Judge Lachs.

7 comments:

Dara said...

Hi sokly!
After i have read your reform on ICJ, it was very good your idea on the reform, but i am not clear one point. You need the un to reform or create the new law in oder to separate the icj to be independent and powerful. SO how can be independent and powerful? Can you clearify that point because i am not clear about that.....

onzemardy said...

hi sokly!
hey man, after i have read your article on the reforming on the ICJ, of course u have raised some good idea on your suggestion of reforming. but i think u should have raised some of that results, or the effects of the reforming if they (ICJ) would be doing so.. Such like, if u want the ICJ to reduce or reform in something u should have concern in other reasons too... Those reasons are such like: firstly, u also know that what is the international law? and why should it created? for what? of course International Law (IL) is to or only dealt with the relationship between state. that is it should have the agreement among states itself.. And secondly, as u mention about the enforcement of the judgement of course it would be good to have such another method to enforce the judgment of the judge, in this it seems that you suggest to the UN to create what so call the seperate police or can be called the "International Police" in order to responsible for that??
i think " no" it can't be that, you know because that the UN would eliminate the UNSC (United Nation Security Council) as because they already have the oreemtory or top one Police to dealt with all the International Dispute especially the Judgment of ICJ...
Lastly, as You have mentioned that the objective of the UN is to maintain the international security, so what you have suggested is that ICJ should play in an active role in settle the dispute in order to reduce war.. of course it is a very good idea as when there is a binding law, or having one organ in order to check and balance the power, especially the super power. but by talking about the goal of Super Power, then u should have ask that what the goal of the UN to dealt with those super power.. why the UN is created?
i think it is because they want to bring all the super power to come together, gather together, sit around and peacefully talk to maintain the world peace, but also to secure their beneficial from the world.. so they will never want to limited their power or event reduce it at all, especially, as in the point that you mentioned " you want the strong and weak states to be the same" then for me i think that would never happened...
Any way, you have wrote a very good article man, hope it will happened one day...

Rattana Vandy said...

Hi Ly

I really like your work. You have details of how the court should be reformed. I think you shouldn’t use Wikipedia for reference because it is not an official website, it is for everyone can pose text and edit.

In section IV. Reform of ICJ: A Reform of Jurisdiction, I think you should put some more ideas to say illustrate the weakness of court jurisdiction application over the states.

Thanks lot

Vichet said...

as you stated in your paper, u support the idea of compulsory jurisdiction of the ICJ. but i believe that the reason that the ICJ does not have compulsory jurisdiction because the each state has its own sovereignty that can not be touch. If u give the ICJ the compulsory jurisdiction status then u are asking for each state to give up part of their sovereignty which is unlikely to happen. It is better for each state to choose their relationship with the ICJ. i think the current system in place now is the best one yet.

Chhun Sokha said...

Hi buddy!
Well, I disagree with Bingbin Lu as well. I have compatible viewpoints as yours. Since having no compulsory jurisdiction, the court hardly performs well and effectively. Additionally, the law is supposed to be created or UN Charter ought to be amended in order to separate the power of the court and security council because the security council has too much power on the court, making it not an independent body.

Stan Starygin said...

Ly,

First, there are multiple ways of structuring your methodology section better and put its message into less chatty English.

Discussing the compulsory jurisdiction of the ICJ, I have a feeling that you have come all the way around and, at the end of it, went against your first argument. I assume you were trying to make sure that that paragraph represeted scholarly views covering the entire spectrum along which they are placed. However, this should have been done in a more structured way.

Other than these this is a reasonably well-structured narrative that makes for a perfectly enjoyable read. I particularly appreciated the section of the enforcement of ICJ decisions, which I thought was well-argued and solidly based on the law.

Stan

His Excellence Edknowledge M said...

I enjoyed reading the article. I was in deep stress on how best to tachle the question on ICJ reform. Your arguments are well reasoned. However, some of the recommendations are inevitably impractical given the inviolable nature of Sovereignty of independent states.

Keep it up. I gues you are good in writing.

His Excellence, Edknowledge Mandikwaza