The International Court of Justice
The the International Court of Justice (CIJ), which sits at $the Hague (Netherlands), is established by article 92 of the Charte of the United Nations: “ the International Court of Justice constitutes the principal legal body of the the United Nations. It functions in accordance with a Statute established on the basis of Statute of the permanent Court of International justice and annexed to the present Charter of which it forms integral part. ” French and English are the two only official languages of the International Court of Justice.
She replaces in 1946, after the Second world war, the international permanent Cour of justice, founded by the Société of the Nations.
Organization of the Court
The statute of the CIJ is copied on that of the international permanent Cour of justice (CPJI). It gives him the instruments necessary to apply the International law, even if the jurisdictional activity of the CIJ remains dependant on the assent of the States.
The CIJ is one of the six principal bodies of UNO. It is its only legal body, which makes it sovereign in its legal order. It is universal competent, since all the members of the United Nations are of this fact parts to its statute. The States not belonging to UNO can become parts with the Statute under certain conditions. It is a Safety and Health Committee composed of 15 judges elected for 9 years by a double poll of the General meeting and Safety advice. To be elected, a candidate must obtain the absolute majority in these two bodies. The judges are renewed per third, to ensure a continuity of jurisprudence.
The CIJ enjoys guarantees of independence, impartiality and competence:
principle of independence: equitable geographical distribution of judges (Africa: 3, Latin America: 2, Western Europe and North America: 5, Eastern Europe: 2, Asia: 3; the Court cannot include/understand more than one national of the same State). A part can choose a judge ad hoc when the other part counts a judge of its nationality within the Court.
- principle of collegial structure. In general, the Court exerts its functions in plenary session, but since the reform of 1975, it is possible to form rooms of at least 3 members. The stops are adopted in the majority of the judges present. They are justified, signed, with possibility of Opinion dissenting (dissension on the device, i.e. the talk by which the Court slices the disagreement) or individual (dissension on the motivation of the stop).
- protection of the magistrates: a member of the Court can be raised of its function only to the unanimous opinion of the other members.
- impartiality: the members of the Court cannot carry on any additional community activity, and can take part in the payment of no business where they intervened before, with some title that it is.
The statute of the CIJ is rather flexible. For example, the judges can, after agreement of the parts, to judge as well in right as in equity. All these guarantees ensure a good administration of justice.
Only the States have quality to act within the framework of contentious competence. Neither in 1921 nor in 1945, the States wanted to limit their sovereignty by creating an obligatory jurisdiction of payment of the conflicts. The CIJ is qualified only when the parts are subjected to its jurisdiction. It is possible 3 to reach that point:
the two parts conclude a compromise, being appropriate to submit their disagreement to the Court. This mode of sasine approaches the compromise of arbitration enough.
- certain treaties or conventions comprise arbitration clauses stating that the litigations relating to the interpretation or the application of the treaty will have to be subjected to the CIJ. Examples: the treaty binding the the United States and the Nicaragua, which gave celebrates it decision Nicaragua C. the United States of 1986 ( military and paramilitary Activités in Nicaragua and against this one ).
- a State can subscribe to an optional declaration of obligatory jurisdiction (article 36-2 of the Statute of the CIJ). This declaration can be done purely and simply, under condition of reciprocity, or for a time of reciprocity. Reserves (excluding certain fields from litigations) are also possible. At the end of 1999, only 58 States out of 185 subscribed to such a declaration. France, after having accepted the obligatory jurisdiction in 1966 (accompanied with a reserve concerning national defense, in particular nuclear power), repealed its declaration in 1973.
The CIJ with the competence of its competence: if a State raises a preliminary exception to the examination of the litigation by the Court, it is up to this one to judge if it is qualified or not. It is what it did in a series of stops of December 2004 opposing the Serbia-Montenegro to the powers which had bombarded it in 1999: confirming a first judgment delivered on this date by which the Federal republic of Yugoslavia required that conservative measures be taken to stop the bombardments against its territory, the Court estimated that it was not qualified to come to a conclusion about the question of the admissibility of the use of the force against Serbia-Montenegro with the principal reason that this country was not member of UNO at the date where it lodged appeal.
Once returned, the decision is obligatory for the parts (art.59 Statute, art.94 of the Charter). In the event of non-fulfilment by one of the parts, the Safety advice can be seized by the other part.
The contentious competence of the CIJ is limited to the States. But in the framework of the advisory competence of this one, the Parliament and the Safety advice can address questions to him. This competence extends to the other bodies and institutions from UNO (UNESCO, ILO, etc), after agreement of the Parliament. The States, them, are excluded from advisory competence. As their name indicates it, the opinions do not have an obligatory range. This nonconstraining character does not mean that the advisory opinions are without legal effect, because the legal reasoning devoted in them reflection of the opinions authorized of the Court on important matters of international law, and, moreover, the Court follows primarily the same rules and procedures which govern its constraining judgments given in contentious businesses. An advisory opinion draws its statute and its capacity owing to the fact that it is the official declaration of the principal legal body of the United Nations (). Within the framework of this procedure, the Court can decide supremely that it is not convenient that she decides.
Seized by the General secretary of the United Nations, Javier Perez de Cuellar, the Court came to a conclusion on December 15th, 1989, about the litigation which opposed the United Nations to the Rumanian Government concerning the Special protractor UNO on the Human rights, Dumitru Mazilu. The Romanian authorities then disputed the jurisdiction of the Court in this case, affirming that Mr. Mazilu was Rumanian citizen and that the Rumanian State had all the latitude not to allow Mr Mazilu to go to present his Report/ratio in front of authority UNO. The Court returned its decision unanimously in favor of Mr. Mazilu who was to enjoy the privileges and immunities conferred by article 22 Convention ().
In another business, the Court returned, on July 9th, 2004, at the request of the General meeting, a resounding advisory opinion on the “legal consequences of the construction of a wall in the occupied Palestinian Territory”. (paragraphs: 237-246)
The CIJ and public international law
The mission of the CIJ is “to settle in accordance with the international law the disagreements which are subjected to him” (art.38 Statute). The applicable duty for that is:
international conventions , either general, or special, laying down rules expressly recognized by the States in litigation;
- the international habit like proof of a general practice, accepted as being right;
- general principles of right recognized by the civilized nations ;
- subject to the provision of article 59, court orders and the doctrines of the most qualified publicity agents various nations, like average auxiliary of determination of the legal provisions.
It can also rule equal and bono (in equity), if it is authorized there by the two parts. It nevertheless used itself the concept of equity as an integral part of interpretation of the legal standard, it is what is called “normative substitution” (1969 continental Shelf of the North Sea ). Indeed, as she affirms it in her stop septentrional Cameroun (1963): “its function is to say the right but it can hand down judgments only at the time of concrete cases in which there exists, at the time of the judgment, a litigation implying a conflict of legal interests between the States. ”
That it is by its stops or its advisory opinions, the CIJ contributed to the progressive development of the public international law, imposing a more flexible and insistent design on the importance of the habit (practical general and opinio juris of the States). For it, the habit can be expressed in conventions and international treaties by declaratory effect (the habit preexists to convention), effect of crystallization (rule in the process of formation) or constitutive effect (a conventional provision becomes a habit).
Limits of the action of the CIJ
Containment with the limited and marginal conflicts
Since 1945, the CIJ remained impotent with regard to the major conflicts between States and consequently politically more significant, voluntary fault of sasine by the States. Its action was thus limited to the marginal conflicts. The CIJ even had a dissuasive role, once seized, leading the States to get along directly between them: it was the case for the business Affaire relative to certain grounds with phosphate in Nauru (1993), opponent Nauru with the Australia, which saw finally desistance with the authority from the two parts. During the years 1970, much of States even refused to appear before the CIJ; others withdrew their optional declaration of obligatory jurisdiction after decisions having been unfavourable to them (France in 1974 after Nuclear tests and the United States in 1986 after military and paramilitary Activités in Nicaragua and against this one ).
The CIJ car-was even limited not to discredit significant businesses in the case of. Thus, she refused to rule at the bottom for Nuclear tests ( Australia C. France and New Zealand C. France , 1986) and South-western African ( Ethiopia C. South Africa and Liberia C. South Africa , 1966). In front of the refusal of appearance, it often adopted a position of withdrawal: she judged that it was not then competent there, or that the business had become in fact without object.
Compete with other modes of Pacific regulation of the disagreements
The CIJ is not the only means of Pacific regulation of the disagreements placed at the disposal of the States. The art.33 of the Charter into precise a certain number:
" The parts with any disagreement whose prolongation is likely to threaten the maintenance of peaces and safety international must seek the solution of it, above all, by way of negotiation, investigation, mediation, conciliation, arbitration, bankruptcy proceedings, recourse to the regional organizations or agreements, or by other peaceful means of their choix."
The multiplication of the international judicial bodies also comes to limit the sphere of activity of the CIJ. One can quote the International court of the right of the sea, born from the Convention of Montego Bay of 1982, which encroaches directly on competences of the CIJ as regards maritime delimitation. Creation in 1993 of the International penal court for ex-Yugoslavia (TPIY) then in 1994 of the International penal court for Rwanda (TPIR) and in 2002 of the International penal court (CPI) can also introduce conflicts of competence.
- permanent Court of international justice or CPIJ.
- Administrative court of the United Nations
- Official site of the legal CIJ
- Gate of $the Hague: academic gate giving access to the institutions of $the Hague relating to international justice.
Be-X-old: МіжнародныСудСлушнасьці Simple: International Court off Justice Zh-min-nan: Kok-chè Hoat-têng
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