Vous êtes sur la page 1sur 27

Running head: INTERNATIONAL COURT OF JUSTICE 1

International Court of Justice

Mark Adrian P. Arellano

San Sebastian College Recoletos

College of Law

Author Note

Mark Adrian P. Arellano, College of Law, San Sebastian College Recoletos

This paper was prepared for Public International Law, LLB 2-2A1, taught by: Dr. Rodel

A. Taton, LL.M, DCL

Correspondence concerning this paper should be addressed to Mark Adrian P. Arellano,

College of Law, San Sebastian College Recoletos, C.M. Recto, 1008 Manila, Philippines.

Email: markadrian216@gmail.com
INTERNATIONAL COURT OF JUSTICE 2

Abstract

The International Courts of Justice or the ICJ is the one that the United Nations had created as its

principal judicial organ that handles international disputes or cases among States and

International Organizations. It was created after the Permanent Court of International Justice or

the PCIJ after the outbreak of war that started in 1939 that caused serious problems to the

Permanent Court of International Justice. It generally functions in accordance with its Statutes,

the international laws and cases submitted to it by other states. And the scope of its jurisdiction

are the ones or the states that had consented to the settlement of their dispute in the said court. In

this paper, the mentioned subjects above and the other topics that will follow shall be discussed

thoroughly and in a detailed manner wherein the history of the ICJ, its functions, jurisdiction,

and the basis for its actions in the cases submitted to it will be explained for better understanding

and for others to have an idea on how the International Court of Justice works and on how it was

established before.
INTERNATIONAL COURT OF JUSTICE 3

Overview of the International Court of Justice

The International Court of Justice was established in 1945 by the chapter 14 of the

Charter of the United Nations, started functioning and began its work in 1946. It was considered

as the principal organ of the United Nations or the UN and was the central institution for the

peaceful settlement of legal disputes between or among states. Presently, the seat of the

International Court of Justice is in The Hague, Netherlands but it may also hold its hearings

elsewhere.

It succeeded the Permanent Court of International Justice that was established by the

Covenant of League of Nations that operated between 1922 to 1940 but was dissolved in 1946.

The International Court of Justice in accordance to its Statute is composed of 15 judges

that are the representatives of the main forms of civilization and of the principal legal systems of

the world. They are elected for terms of office of nine years by the General Assembly and the

Security Council that came from a list of candidates that are nominated by government-

appointed national groups of international-law experts and no two judges can come from the

same country. The quorum constitutes nine judges and decides questions or disputes based on the

majority decision of the present judges. The Court functions in accordance with its statutes that

for the most part repeats that of its former tribunal or the Permanent Court of International

Justice and its principal functions is to decide in accordance with its statutes, international law

and legal disputes submitted to it by other states or known as contentious jurisdiction. The

International Court of Justice also gives advisory opinions on legal questions submitted or

referred to it by the General Assembly, Security Council, or other organs of the United Nations
INTERNATIONAL COURT OF JUSTICE 4

and other specialized agencies authorized by the General Assembly known as the advisory

jurisdiction. Its official language is French or English.

History before the Courts of Justices

Before the Permanent Court of Justice and the International Court of Justice was created,

Its origins can be traced way back to 1794 where the Jay Treaty between the United States of

America and Great Britain was established. This Treaty of Amity, Commerce, and Navigation

paved way for the establishment of the mixed three commissions that are composed of American

and British Nationals that were in equal numbers whose task is to be able to settle a number of

questions between countries which it cannot just be or cannot be resorted to negotiation. They

reawakened the interest of arbitration even though they are not organs of a third-party

adjudication but functioned as tribunals.

The Alabama Claims Arbitration in 1872 between the United States and the United

Kingdom was considered a decisive phase wherein under the Treaty of Washington of 1871, both

countries, United States and United Kingdom agreed to submit arbitration claims by the US for

the alleged breach of neutrality by the UK during the American Civil War. Both countries stated

therein certain rules that would govern the duties of the neutral governments that were to apply

by the tribunal, that consists of five members which they agreed upon that is appointed by the

Heads of State of the United Kingdom, United States, Brazil, Switzerland and Italy. The arbitral

tribunals award ordered the United Kingdom to pay compensation that was duly conformed

with. The proceedings served as a successful demonstration of the arbitrations effectiveness in

settling a major dispute that led developments in different directions in the nineteenth century

onwards namely:
INTERNATIONAL COURT OF JUSTICE 5

1. Growth in the practice of insertion of clauses in treaties that provide recourse to

arbitration if there are any circumstances that may led to a dispute between parties.

2. The conclusions of general treaties of arbitration for settling specific classes of inter-

state disputes.

3. Proposals in the creation of a permanent international arbitration tribunal to remove

the need of a special ad hoc tribunal in deciding abatable disputes.

4. Efforts in constructing a general law for arbitration

The Hague Peace Conference of 1899 marked the beginning of the third phase in the

modern history of international arbitration regarding peace and disarmament that was discussed

in participation by the smaller States of Europe, Mexico, and some Asian States that ended by

adopting a convention on the Pacific Settlement of International Disputes that dealt with

arbitration and other methods of pacific settlement such as tender of good offices and mediation.

The 1899 Convention also created a provision for the creation of a permanent machinery

that would enable arbitral tribunals to conduct its work and is known as the Permanent Court of

Arbitration. It consists of jurists that was designated by countries that agreed and participated to

the Convention. The Convention further created at The Hague, a permanent Bureau that

functions in relation with a court registry and a secretariat that laid down certain set of rules of

procedure that governs the conduct of arbitration. The Permanent Court of Arbitration

represented a method or device in facilitating the creation of arbitral tribunals and was

established in 1900 that began operating in 1902.

A few years later during 1907, the second Hague Peace Conference was held wherein the

States of Central and South America were also invited, that revised the Convention and improved

the rules regarding the arbitral proceedings. It confined itself recommending States that they
INTERNATIONAL COURT OF JUSTICE 6

should adopt a draft convention for the creation of a tribunal court of justice as soon as the

agreement reached respecting the selection of the judges and the constitution of the court. This

court has never been established but has shown certain fundamental ideas that were useful and

led to be the source of inspiration in drafting the Statute of the Permanent Court of Justice years

later.

After such proposals that were disregarded, the Permanent Court of Arbitration took its

place or residency in the Peace Palace thanks to Andrew Carnegies gift that made a positive

contribution in the development of international law. Notable cases that were decided during the

function of its machinery were the Carthage and Manouba cases of 1913 regarding the seizure

of vessels, the Timor Frontiers of 1914 and the Sovereignty over the Island of Palmas of 1928.

These cases threw into relief the shortcomings of the Permanent Court of Arbitration.

The work of the two Hague Peace Conferences and its given ideas during its time gave

spark and inspired statesmen and jurists that also gave them influence in creating the Central

American Court of Justice that operated during 1908 to 1918 and other plans and proposals that

were submitted during 1911 to 1919 by both international and national bodies as well as by

governments for establishing an international judicial tribunal that culminated the creation of the

Permanent Court of International Justice in the framework of the international system that was

set up after the end of the world war 1.

The History of the International Court of Justice and its Statute

Before the creation of the Statute of the International Court of Justice, it all started during

the time of its predecessors, the Permanent Court of International Justice or the PCIJ during

(insert date) wherein it was created based on the works(auspices) of the League of Nations in
INTERNATIONAL COURT OF JUSTICE 7

pursuant to the Article 14 of the Covenant of the League of Nations.1 An Advisory Committee of

jurists during the early 1920s was appointed to prepare a report to be submitted in relation to the

establishment of the Permanent Court of Justice. And in the month of June to July, the Advisory

Committee prepared a draft scheme that was submitted to the Council of the League of Nations

in which upon the examination of the given draft was laid down to the first Assembly of the

League of Nations. After the matter was studied by the Third Committee of the first assembly, it

was again submitted in December 1920 wherein that revised draft given was adopted

unanimously and became the Statute of the Permanent Court of International Justice.

The Permanent Court of International Justice operated from 15 February 1922 until 1940.

Many treaties and conventions was under the jurisdiction of the Permanent Court of International

Justice and it also settled 29 contentious cases and has issued 27 advisory opinions during its

time. Though the creation of the Permanent Court of International Justice was created due to the

initiative of the League of Nations that led to its existence, it is not integrated into the League. It

was only in 1946 that the ICJ or the International Court of Justice was created. It adopted and

relied upon the Statutes of its predecessor, the Permanent Court of International Justice. Its

adaptation of its statutes was during the San Francisco Conference on 26 June 1945. Afterwards,

a redrafting was initiated with the necessary adjustments in pursuance to historical backgrounds

and experiences. These changes, aside from its terminologies, were the alteration of its reference

from the League of Nations to the United Nations. It was initiated first by the United Nations

1
Article 14, Covenant of the League of Nations states that: The Council shall formulate and submit to the Members
of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall
be competent to hear and determine any dispute of an international character which the parties thereto submit to it.
The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the
Assembly.
INTERNATIONAL COURT OF JUSTICE 8

Committee of Jurists that then the Fourth Committee of the United Nations Conference on

International Organizations or UNCIO during 1945 in San Francisco.

One of the important things that was introduced by the Statute of the International Court

of Justice was its interrelationship with the Charter of the United Nations. Its Statute is

incorporated into the UN, that formed an integral part of the Charter of the United Nations. It

sets forth the structure of its Court, its powers and competences and the laws applicable to it.

Such incorporation between the two bodies is enhanced in pursuance to the Article 92 of the

Charter.2

Who may use the Court?

The ones who may use the Court are the states that has access to the courts and accepted

its jurisdiction. Access to the court is granted to all states that are considered parties to the statue

of the court.3 All members of the United Nations are automatically considered as part or parties

to the Statute of the Court.4 And as an exception to the mentioned rule, the courts may also be

open to states that are not parties to the Statute of the Courts.5 If a member of the United Nations

fails to comply with a judgment of the court, an appeal for assistance may be made to the

Security Council. It is the Security Council that determines the conditions under which the court

shall be open to states that are not parties to the Statute of the Court in its resolution of October

1946.

2
Article 92, UN Charter states that: The International Court of Justice shall be the principal judicial organ of the
United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the
Permanent Court of International Justice and forms an integral part of the present Charter.

3
Article 35, par. 1, Statute of the International Court of Justice
4
Article 93, par. 2, Statute of the International Court of Justice
5
Article 35, par. 2, Statute of the International Court of Justice
INTERNATIONAL COURT OF JUSTICE 9

The cardinal rule in international courts is that the states cannot be compelled to submit disputes

unless they have consented to the international adjudication before a dispute had arisen between

states or after such. States may also limit their acceptance in different disputes and may attach

different conditions or reservations to their acceptance.

The Jurisdiction of the Court

Its jurisdiction, like the consensual theory is based on the given consent of the states.

Wherein in a specific case, they may have jurisdiction over it if the parties or the party states

consented to the settlement of their dispute by the Court. And these consent may be expressed

through unilateral declarations or optional declaration clause, treaties, special agreements or such

consent may also be expressed after the Court has been seized. States making such declarations,

however, sometimes impose restrictive conditions on their acceptance. Example of this is the

United States that excludes all disputes regarding domestic matters from the court's jurisdiction,

reserving the right to determine what it regards as domestic related.

And for a more detailed information regarding the International Court of Justices

adjudicatory functions that is provided in its Statute, the pertinent portions of which read:

CHAPTER II - COMPETENCE OF THE COURT

Article 34

1. Only states may be parties in cases before the Court.

2. The Court, subject to and in conformity with its Rules, may request of public international

organizations information relevant to cases before it, and shall receive such information
INTERNATIONAL COURT OF JUSTICE 10

presented by such organizations on their own initiative.

3. Whenever the construction of the constituent instrument of a public international organization

or of an international convention adopted thereunder is in question in a case before the Court, the

Registrar shall so notify the public international organization concerned and shall communicate

to it copies of all the written proceedings.

Article 35

1. The Court shall be open to the states parties to the present Statute.

2. The conditions under which the Court shall be open to other states shall, subject to the special

provisions contained in treaties in force, be laid down by the Security Council, but in no case

shall such conditions place the parties in a position of inequality before the Court.

3. When a state which is not a Member of the United Nations is a party to a case, the Court shall

fix the amount which that party is to contribute towards the expenses of the Court. This provision

shall not apply if such state is bearing a share of the expenses of the Court

Article 36

1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters

specially provided for in the Charter of the United Nations or in treaties and conventions in

force.

2. 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
INTERNATIONAL COURT OF JUSTICE 11

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.

3. The declarations referred to above may be made unconditionally or on condition of reciprocity

on the part of several or certain states, or for a certain time.

4. Such declarations shall be deposited with the Secretary-General of the United Nations, who

shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International

Justice and which are still in force shall be deemed, as between the parties to the present Statute,

to be acceptances of the compulsory jurisdiction of the International Court of Justice for the

period which they still have to run and in accordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by

the decision of the Court.

Article 37

Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have

been instituted by the League of Nations, or to the Permanent Court of International Justice, the

matter shall, as between the parties to the present Statute, be referred to the International Court of
INTERNATIONAL COURT OF JUSTICE 12

Justice.

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as

are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly

qualified publicists of the various nations, as subsidiary means for the determination of rules of

law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et

bono, if the parties agree thereto.

In accordance with the Article 36 that was mentioned above, the jurisdiction of the

International Court of Justice may only be applicable to disputes between states that are limited

and concerning the interpretation of treaties, questions of international law, breaches of

international obligation, and reparations due that is in accordance with international law and shall

be settled by the same and not domestic laws. And thus, the Court shall have jurisdiction over the

case if it was referred to it by the parties.


INTERNATIONAL COURT OF JUSTICE 13

Acceptance of jurisdiction may also take place by a unilateral declaration wherein the

recognition of jurisdiction by the Court in relation to other states accepting the same jurisdiction

in all legal disputes which also creates the optional system of submitting to the jurisdiction of the

Court. The optional system of submitting to the jurisdiction of the Court is only operative in

states that they declare to be recognized as compulsory ipso facto and without any agreement

that is in relation to other states accepting the same obligation, the jurisdiction of the Court.

Also, Major opinions that were given by the Court ruled that the General Assembly may

not just admit a state to the United Nations if such application is vetoed by one of the permanent

members of the Security Council; that the United Nations is to be considered as an international

legal person; that special United Nations assessments, such as those for the Congo and Middle

East operations, are regular expenses of the United Nations and are binding on all members; and

that South Africa must withdraw from Namibia (accomplished with Namibia's independence in

1990). The declaration in the optional system may be made unconditionally or on condition of

reciprocity on the part of several or certain states, or for a certain time. Regarding the

limitations in its reciprocity, the Court declared in Interhandel Case, reciprocity in the case of

Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a

reservation to that acceptance which it has not expressed in its own Declaration but which the

other Party has expressed in its Declaration.

Another case that illustrates the optional system is the Aerial Incidence Case or U.S. v.

Bulgaria wherein the United States acceded to the optional clause, that is considered accepting

the compulsory jurisdiction of the International Court of Justice but has subsequently made a

reservation for disputes regarding matters which are essentially within the domestic jurisdiction

of the United States as determined by the US. (Connally amendment). Afterwards, EL Al Israel
INTERNATIONAL COURT OF JUSTICE 14

airliner was driven off course by a bad weather and has innocently passed through the Bulgarian

air space wherein it was shot down by the Bulgarian military planes, killing all passengers and

crew, including 6 US nationals. The Investigators argue that Bulgarian military failed to adhere

to the international civil aviation agreements involving the appropriate interception and

identification of intruding aircraft. The case was initially brought to the ICJ by Israel, wherein

the International Court of Justice or the ICJ ruled that it had no jurisdiction, stating that

Bulgarias acceptance of the optional clause in the Statute of Permanent Court of International

Justice did not carry over to acceptance of the optional clause of the ICJ. United States continued

its claim based on violation of international law and injuries to US nationals. On the grounds of

reciprocity and consensual basis of ICJ jurisdiction, Bulgaria contests the International Court of

Justices jurisdiction. Bulgaria had invoked the Connelly amendment exempting matters within

its internal competence and contended that its airspace security and anti-craft defenses were

within its domestic jurisdiction. US withdrew its application, which the Court accepted as the

end of the dispute.

Numerous international treaties specify or consider the International Court of Justice as

the arbiter of disputes over the interpretation or application of the agreements. Some of these

treaties are:

1. The united Nations Convention Against Illicit Traffic in Narcotic Drugs and

Psychotropic Substance;

2. The Single Convention on Narcotic Drugs

3. Convention on Psychotropic Substances

4. American treaty on pacific settlement, Bogota, 30 Apr. 1948


INTERNATIONAL COURT OF JUSTICE 15

5. Convention on the prevention and punishment of the crime of genocide, Paris, 9 Dec.

1948

6. Revised act for the pacific settlement of international disputes, Lake Success, 28 Apr.

1949

7. Convention relation to the status of refugees, Geneva, 28 Jul. 1951

8. Treaty of peace with Japan, San Francisco, 8 Sep. 1951

9. Treaty of friendship (India/Philippines), Manila, 11 Jul. 1952

10. Universal copyright convention, Geneva, 6 Sep. 1952

11. European convention for the peaceful settlement of disputes, Strasbourg, 29 Apr.

1957

12. Single convention on narcotic drugs, New York, 30 Mar. 1961

13. Optional Protocol to the Vienna convention on diplomatic relations, concerning the

compulsory settlement of disputes, Vienna, 18 Apr. 1961

14. International Convention on the elimination of all forms of racial discrimination, New

York, 7 Mar. 1966

15. Convention on the law of treaties, Vienna, 23 May 1969

16. Convention on the suppression of the unlawful seizure of aircraft, The Hague, 16

Dec. 1970

17. Treaty of commerce (Benelux/USSR), Brussels, 14 Jul. 1971

18. Convention for the suppression of unlawful acts against the safety of civil aviation,

Montreal, 23 Sep. 1971

19. International convention against the taking of hostages, New York, 17 Dec. 1979

20. General peace treaty (Honduras/El Salvador), Lima, 30 Oct. 1980


INTERNATIONAL COURT OF JUSTICE 16

21. Convention on treaties concluded between States and international organizations,

Vienna, 21 Mar. 1986

22. United Nations convention against illicit traffic in narcotic drugs and psychotropic

substances, Vienna, 20 Dec. 1988

23. United Nations framework convention on climate change, New York, 9 May 1992

24. Convention on biological diversity, Rio de Janerio, 5 Jun. 1992

25. Convention on the prohibition of the development, production, stockpiling and use of

chemical weapons and their destruction, Paris 13 Jan. 1993

26. Convention on the privileges and immunities of specialized agencies

The Court will entertain or accept a dispute only if the concerned States shall accept its

jurisdiction based on the following:

1. By a special agreement between the States to submit the dispute to the International

Court of Justice.

2. By virtue of a jurisdictional clause that can also be found on several treaties or

conventions through a clause regarding the same. If there is a certain treaty entered by

a party, and in the event where there is a disagreement between states regarding its

interpretation or application, one of them may refer such dispute to the International

Court of justice for its settlement.

3. Through reciprocal effect of the declaration made by the parties under the Statute

whereby each of them has accepted the International Court of Justices jurisdiction as

a compulsory in the event of a dispute whereby one party made the same declaration.

And in the cases of doubt on whether the Court has jurisdiction or not, it is for them to

decide.
INTERNATIONAL COURT OF JUSTICE 17

How the Court Works

In this part shall the process on how the International Courts of Justice be explained

wherein bringing a case to the court means referring a matter to an independent and impartial

adjudicative body that makes its decision based on or on the basis of objective legal criteria.

The Court will weigh the given evidence that was submitted to it by the parties and the

applicable relevant rules, procedures and principles of international law, shall also be considered

in order for them to provide a well reasoned and just judgment or the said case.

The Courts procedure consists of a written and an oral part. Both parties have equal

opportunities to present their arguments on the Courts jurisdiction as well as the admissibility

and the merits of the case in hand. During its proceedings, or the institution of the action by the

parties, a party may request before the Court for them to have an opportunity to rule on the

merits of the case, to order provisional measures for the prevention of imminent and irreparable

damage from being caused to the rights in dispute. And unless it is discontinued, the proceedings

may be concluded by a judgment given by the Court and these judgments given by the Court

shall be binding upon the parties, it will be final and without the right to appeal. The parties must

abide by the proclaimed judgment and if a party fails to comply with the judgment given, the

provision in the charter of the United Nations for recourse by the security council shall be

applied.6 Example of this is in Nicaragua v. United States, ICJ 1996, where the United States

previously accepted the compulsory jurisdiction of the court, then after such acceptance, the

United States was found guilty for having planted mines and explosives in the Nicaraguan bays

in support of the rebels called contras and called on the United States to cease and desist from

6
Article 94, par. 2 Statute of International Court of Justice
INTERNATIONAL COURT OF JUSTICE 18

unlawful use of force and to compensate Nicaragua with reparations. The United States after did

not pay them such reparations.

Another case is Mexico v. United States, ICJ, March 31, 2004, wherein the complaint of

Mexico against the United States, who is one of the signatories to the protocol on the Vienna

Convention on Consular Relations, had violated Sec. 36 of the Vienna Convention for not

informing the Mexican nationals of their rights to communicate thru consul to their government

and to be visited by the former, and also ordered the United States to reconsider and review the

death sentences that was imposed on the Mexican nationals by the US courts, rendered in

violation of their said rights. So to prevent themselves, the United States from compliance with

the decision given by the International Court of Justice, they withdrew from the protocol so the

decision of the Court will not be binding upon them.

The International Court of Justice as the principal organ of the United Nations should be

taken very seriously especially the given judgment of the Court. The case law of the International

Court of Justice is relied upon by domestic courts, other international courts and tribunals, legal

advisers and scholars in the field of international law and the International Law Commission in

relating to the promotion of the progressive development of the international law and its

codification.

The Court may also re-open cases either through interpretation or for revision.

Interpretation and revision is provided in the provisions of statute wherein in it is mentioned

there that, in case of a disagreement as to the meaning and scope of a judgment, the Parties may

request the Court to construe it.7 The request for interpretation may be submitted through the

means of application of one or more of the parties or through a special agreement. And before a

7
Article 60, Statute of International Court of Justice
INTERNATIONAL COURT OF JUSTICE 19

court to be able to entertain a request for interpretation, there must be a dispute as to the meaning

and scope of judgment. In the Chorzw Factory Case of 1927, it is held that under that provision,

it should be sufficient if the two governments have in fact shown themselves as holding

opposite views in regard to the meaning or scope of a judgment of the Court.8 The interpretation

that the Court will render must be kept within the confinement of the judgment in which is the

object of the requested interpretation.

Aside from interpretation, the other method wherein the Court may open a case is

through a request for revision of a judgment as provided by the Statute. An application for

revision of a judgment may be filed only if its discovery is based on a fact that is taken as a

decisive that when such judgment is delivered, was unknown to the Court and to the party

claiming such revision, and lack of knowledge was not due to negligence. In difference with the

requests for interpretation, there is a time-limit for filing the said request, that is the application

for revision that must be made within six months upon discovery of the new fact.9 The notion of

revision of judgments clearly shows the concept of res judicata,10 and in Article 61 of the Statute

makes it clear that such revision procedures are in the form of exceptional nature, especially to

the principle that is expressed in the Article 60 that such judgments of the Court are final and

without appeal.11

8
PCIJ, Chorzw Factory case (Interpretation of Judgments Nos. 7 and 8), PCIJ, Series A, n. 13, 1927

9
On revision procedures at the ICJ, cf., e.g., R. Geiss, Revision Proceedings before the International Court of
Justice, 63

10
Res Judicata is a matter that has been adjudicated by a competent court and may not be pursued further by the
same parties.

11
Article 60, Statute of International Court of Justice states that: The judgment is final and without appeal. In the
event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any
party.
INTERNATIONAL COURT OF JUSTICE 20

The revision procedure has been used in a very limited instances or situations throughout

the history of the International Court of Justice.

In the situation that relates to gravity and urgency, the International Court of Justice may

indicate or apply provisional measures of protection in pursuant to Article 41 of its Statute, in

order to prevent or avoid irreparable harm.12 It also has a binding character.

The court may also render judgment in certain disputes between states, and with the

authorization of the General Assembly, it may deliver advisory opinions to any organ of the

United Nations and its agencies.

In the case concerning Questions Relating to the Obligation to Prosecute or to Extradite

(Belgium versus Senegal, order of 28 May 2009) where the Court decided not to indicate

provisional measures I warned, in my dissenting opinion (para. 97), that the basic right at issue

pertained to the realization of justice, and the fact that the binding character of provisional

measures of protection is nowadays beyond question, on the basis of the res interpretata of the

ICJ itself, does not mean that we have reached a culminating point in the evolution of the ICJ

case-law on this matter.13

As to its function to give advisory opinions, it was held by the International Court of

Justice in accordance to the Article 96 of the Charter of United Nations14 and Article 65 of its

12
Article 41, Statute of International Court of Justice states that: 1. The Court shall have the power to
indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve
the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the
Security Council.
13
Antnio Augusto Canado Trindade, Statute of the International Court of Justice, p. 11
14
Article 96, UN Charter states that: a. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal question.
b. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the
General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of
their activities.
INTERNATIONAL COURT OF JUSTICE 21

Statute15 that as part of its functions to give advisory opinions in relation to legal questions

submitted to it, enables the entities of the United Nations to seek guidance from the Court in

order to conduct its activities in accordance with the law. Such opinions given by the

International Court of Justice are merely advisory and is not binding. They are considered as a

guide that may be used by the United Nations. The consent of the States is not a compulsory

condition in order for the Court to give such opinions. the acceptance or non-acceptance of it

shall be determined by the internal law of such institution. It was observed by the Court during

1950 that, The consent of States, parties to a dispute, is the basis of the Courts Jurisdiction in

contentious cases. The situation is different in regard to advisory proceedings even where the

Request for an Opinion relates to a legal question actually pending between States. The Courts

reply is only of an advisory character: as such, it has no binding force. It follows that no State,

whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion

which the United Nations considers to be desirable in order to obtain enlightenment as to the

course of action it should take. The Courts opinion is given not to the States, but to the organ

which is entitled to request it; the reply of the Court, itself an organ of the United Nations,

represents its participation in the activities of the Organization, and, in principle, should not be

refused.16

In its opinion on the Legality of the Construction of the Wall in the Occupied Palestinian

Territory, The International Court of Justice was asked if what are the legal consequences that

15
Article 65, Statute of International Court of Justice states that: 1. The Court may give an advisory opinion
on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a
written request containing an exact statement of the question upon which an opinion is required, and accompanied
by all documents likely to throw light upon the question.
16
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950
INTERNATIONAL COURT OF JUSTICE 22

arise from the construction of the wall that was built by Israel, its occupying power, in the

Occupied Palestinian Territory, that included in and around East Jerusalem in consideration of

the rules and principles of international, including the Fourth Geneva Convention of 1949 and

relevant Security Council and General Assembly resolutions. The International Court of Justice

answered the given question against Israel and cited the rules of international law that supported

its conclusions, the Relevant rules and principles of international law.

The International Court of Justice also gave its opinion regarding the Legal

Consequences of the Construction of a wall in the Occupied Palestinian Territory, wherein it

considers a legal question may also have a political aspect, but such political aspect or

characteristic may not deprive it of being a question of legality and deprive the Court of a

competence that is expressly conferred on it by its Statute, the court cannot just refuse in

admitting the legal characteristic of a question that invites it in the discharge of an essential

judicial task.17

The International Court of Justice observes that certain rules and principles can be found

in the Charter of the United Nations Charter and such other treaties, customary international

laws, and resolutions that are relevant and is adopted in pursuant to the Charter by the Security

Council or the General Assembly.

Regarding intervention, in accordance with the Statute of International Court of Justice, if

a State has an interest of a legal nature that could affect the decision of a case, it may submit a

request to the Court for it to be permitted to intervene.18 It shall also be for the court to decide

upon request. It also mentioned that whenever the construction of a convention in which the

states other than those concerned in the case are parties in question, the Registrar must notify all

17
Legality of the Threat or Use of Nuclear Weapon, I.C.J. Reports 1986 (I), p. 234, par. 13.
18
Article 62, Statute of Court of Justice
INTERNATIONAL COURT OF JUSTICE 23

such states forthwith and every state notified has the right to intervene in the proceedings, but if

it uses this right, such construction given by the judgment will be equally binding upon it.19 And

with regards to its application in the permission to intervene, in the case regarding Territorial

and Maritime Dispute in Nicaragua v. Columbia, 201120 and in the case in relation to

Jurisdictional Immunities of the State in Germany v. Italy: Greece intervening, 2010-2012.21 It

was held in the latter case that for the first time in its history, the International Court of Justice,

granted the faculty intervention to a third party, Greece (as a non-party) transcending the

traditional tendency of bilateralization to the arbitral past experience.

19
Article 63, Statute of Court of Justice
20
Cf. ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, I.C.J.
Reports 2011

21
ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, I.C.J.
Reports 2011
INTERNATIONAL COURT OF JUSTICE 24

References

Agpalo, Ruben E. (2006). Public International Law. Quezon City: Rex Book Store.

Bernas, Joaqin G. (2009). Introduction to Public International Law. Quezon City: Rex Book

Store.

Switzerland, Netherlands, United Nations Secretariat (2014 July, 24). Handbook on accepting

the jurisdiction of the International Court of Justice: model clauses and templates.

http://www.icj-cij.org/

See S. Rosenne. (1965) The Law and Practice of the International Court (2 vol.)

http://www.infoplease.com/encyclopedia/history/international-court-justice.html

Pax, Thomas J. (1985, August, 1) Nicaragua v. United States in the International Court of

Justice: Compulsory Jurisdiction or Just Compulsion?

http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1426&context=iclr

R. Falk. (1986) Reviving the World Court.

http://www.infoplease.com/encyclopedia/history/international-court-justice.html

M. Dunne. (1989) The United States and the World Court, 19201935

http://www.infoplease.com/encyclopedia/history/international-court-justice.html

Antnio Augusto Canado Trindade. Statute of the International Court of Justice (26 June 1945)

http://legal.un.org/avl/ha/sicj/sicj.html

League of Nations (28 April 1919). Covenant of the League of Nations

http://avalon.law.yale.edu/20th_century/leagcov.asp#art14

United Nations (18 April, 1946). Statute of the International Court of Justice.

http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf
INTERNATIONAL COURT OF JUSTICE 25

Footnotes

Article 14, Covenant of the League of Nations states that: The Council shall formulate

and submit to the Members of the League for adoption plans for the establishment of a

Permanent Court of International Justice. The Court shall be competent to hear and determine

any dispute of an international character which the parties thereto submit to it. The Court may

also give an advisory opinion upon any dispute or question referred to it by the Council or by the

Assembly.

2
Article 92, UN Charter states that: The International Court of Justice shall be the

principal judicial organ of the United Nations. It shall function in accordance with the annexed

Statute, which is based upon the Statute of the Permanent Court of International Justice and

forms an integral part of the present Charter.

3
Article 35, par. 1, Statute of the International Court of Justice
4
Article 93, par. 2, Statute of the International Court of Justice
5
Article 35, par. 2, Statute of the International Court of Justice
6
Article 94, par. 2 Statute of International Court of Justice
7
Article 60, Statute of International Court of Justice
8
PCIJ, Chorzw Factory case (Interpretation of Judgments Nos. 7 and 8), PCIJ, Series A,

n. 13, 1927

9
On revision procedures at the ICJ, cf., e.g., R. Geiss, Revision Proceedings before the

International Court of Justice, 63


INTERNATIONAL COURT OF JUSTICE 26

10
Res Judicata is a matter that has been adjudicated by a competent court and may not be

pursued further by the same parties.

11
Article 60, Statute of International Court of Justice states that: The judgment is final

and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court

shall construe it upon the request of any party.


12
Article 41, Statute of International Court of Justice states that: 1. The Court shall have

the power to indicate, if it considers that circumstances so require, any provisional measures

which ought to be taken to preserve the respective rights of either party.

2. Pending the final decision, notice of the measures suggested shall forthwith be given to the

parties and to the Security Council.


13
Antnio Augusto Canado Trindade, Statute of the International Court of Justice, p. 11
14
Article 96, UN Charter states that: a. The General Assembly or the Security Council

may request the International Court of Justice to give an advisory opinion on any legal question.

b. Other organs of the United Nations and specialized agencies, which may at any time be so

authorized by the General Assembly, may also request advisory opinions of the Court on legal

questions arising within the scope of their activities.


15
Article 65, Statute of International Court of Justice states that: 1. The Court may give

an advisory opinion on any legal question at the request of whatever body may be authorized by

or in accordance with the Charter of the United Nations to make such a request.

2. Questions upon which the advisory opinion of the Court is asked shall be laid before the

Court by means of a written request containing an exact statement of the question upon which an

opinion is required, and accompanied by all documents likely to throw light upon the question.
INTERNATIONAL COURT OF JUSTICE 27

16
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,

Advisory Opinion, I.C.J. Reports 1950


17
Legality of the Threat or Use of Nuclear Weapon, I.C.J. Reports 1986 (I), p. 234, par.

13.
18
Article 62, Statute of Court of Justice
19
Article 63, Statute of Court of Justice
20
Cf. ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for

Permission to Intervene, I.C.J. Reports 2011

21
ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Application for

Permission to Intervene, I.C.J. Reports 2011