Overview of statute of International Court of Justice

By Martha Onate Inaingo

Published on: November 15, 2023 at 00:10 IST

The International Court of Justice (ICJ) was established in 1945 by the United Nations Charter to replace the Permanent Court of International Justice that was operational under the defunct League of Nations after World War I and II.

The preamble of the United Nations Charter 1945 state the objectives of the United Nations which are:

• To prevent war
• To reaffirm and guarantee fundamental human rights
• To establish conditions that would maintain justice and respect for obligations arising from treaties and international sources of law; and
• To promote social progress and better standard of life by practicing tolerance and live in peace as good neighbors, unite and maintain international peace and security, by instituting principles and methods for armed conflicts and to employ international machinery for the promotion of the economic and social advancement of all peoples.

Article 7 of United Nations Charter established six principal organs; the General Assembly, Security Council, Economic and Social Council, Trusteeship Council, International Court of Justice and the Secretariat. These organs were all established to achieve the aforementioned objectives by performing their various functions. Among the principal organs, the International Court of Justice is the principal judicial organ of the United Nations that is constituted to function in accordance with the provisions of the United Nations Charter Article 2(3) which states that all states shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered.

The ICJ (which is also known as the World Court) is located at the Hague, Netherlands and plays a major role in the development of international law and the settlement of international disputes. The functions, composition and jurisdiction of the court are all provided in the Statute of the International Court of Justice which is annexed to the United Nations Charter.

This piece is an exposition that provides a comprehensive general and specific overview by dissecting the chapters and highlighting the provisions of Articles of the Statute of International Court of Justice.

Statute of International Court of Justice

The Statute of International Court of Justice consists of 70 articles and aside Article 1 of the Statute which provides that the ICJ should perform it’s function in accordance with United Nations Charter, the other 69 Articles are grouped into five (5) chapters:

Chapter I: Organization of the Court (Articles 2 – 33)

Chapter II: Competence of the Court (Articles 34 – 38)

Chapter III: Procedure (Articles 39 – 64)

Chapter IV: Advisory Opinions (Articles 65 – 68)

Chapter V: Amendment (Articles 69 & 70)

Chapter I: Organization of the Court (Articles 2 – 33)^[1]

This chapter provides for the composition of the court, the election and dismissal of judges, their functions, salary, sittings etc. Now a break down of chapter I.

• Composition of the ICJ

The composition of the Court is provided in Article 2 of the Statute which states that the Court shall be composed of a body of independent judges who are elected regardless of their nationality and also stipulates the requirement for eligibility to become a judge; that the person must have high character and possess the qualifications required for appointment to the highest judicial office or are qualified as juris consults of recognized competence in international law.

Article 3 stipulates the composition of the court to consistent of fifteen (15) members, of which two members must not be from the same nationality.

Article 25 further provides that subject to the provisions of the Rules of the Court which could provide for an additional or less number of judges to constitute the court, not less than even judges should sit, however a quorum of nine judges shall constitute the court to hear a matter.

Articles 26-29 states that the court can also establish Chambers composed of five (5) judges to hear and determine particular categories of cases by summary procedure.

• Selection and Election of Judges

Article 4 provides that the General Assembly and Security Council would prepare a list of persons nominated by national groups in order to select members of the court. Articles 6-8 further provides the procedure for the national groups to make their nominations, that each national group is recommended to consult its highest court of justice, legal faculties and schools of law in order to nominate the persons qualified for the position and the list of nomination would be prepared by the Secretary General in an alphabetical order and submitted to the General Assembly and Security Council as the eligible persons for the election which shall be conducted independently by each organ. The candidates that obtain absolute majority of the votes would be considered elected.

Where there are still vacant seats to fill the position of judges, a joint conference of six (6) m members would be formed to choose eligible persons by the vote of an absolute majority and submit the election result to the General Assembly and Security Council. Where election by the joint conference is not possible, a selection of those elected by the General Assembly and Security Council would be made to fill the vacant seats.

Article 21 provides that the court shall elect its President, Vice President, Registrar and all other necessary officers of the Court. The President and Vice President may be re-elected after fulfilling their three (3) years term.

• Term of Office

Article 13 provides the term of office for the judges to be nine (9) years of which there may be re-election which is for an additional three (3) years term.

• Official Requirements of Judges

Articles 16 & 17 enunciates what a judge is permitted to do and not do. A judge is not allowed to exercise any political or administrative function, or engage in any other occupation of a professional nature or act as an agent, counsel or advocate in any case or participate in the decision of a matter in which he has previously taken part as an agent, counsel or advocate or as a member of a national or international court, etc. or in any other capacity

Article 22 provides that the President and Registrar of the Court shall reside in Hague which is established as the seat of the ICJ.

Article 30 stipulates that the Court shall frame Rules to regulate its functions and also Rules of Procedure to regulate the operation of the court.

Chapter II: Competence of the Court (Articles 34 – 38)^[2]

The provisions of Chapter II cover the parties that can institute cases in the Court, the Jurisdiction of the Court, Declarations of the Court and the applicable laws of the Court.

• Parties

According to Article 34(1) only states may be parties in cases before the Court because they are regarded as the subjects of International law who can institute a claim. Individuals do not have international personality and so cannot access the ICJ. Article 34 (2) states that the Court may use its own initiative to request for an information from a Public International Organization.

• Jurisdiction of the ICJ

The ICJ has Jurisdiction to hear and determine legal disputes between States, which can be instituted by either of the parties to the case, and it also has Jurisdiction to give advisory opinion on legal questions that are referred to it by duly authorized international organizations and agencies of the United Nations organs. Unlike the International Criminal Court that determines the criminal liability of individuals, the ICJ determines the international obligations and responsibilities of State parties to the Statutes of the International Court of Justice and the United Nations Charter (Article 93) which regulates the jurisdiction of the Court.

Article 36 prescribes the Jurisdiction of the Court to comprise of all cases which the parties refer to it and all matters specially provided for in the United Nations Charter or in treaties and conventions in force. Article 36(2) specifies the automatic jurisdiction of the court, by stating that State parties to the ICJ Statute may recognize ipso facto the jurisdiction of the court, without any special agreement, in all matters concerning:

• the interpretation of a treaty;
• any question of international law;
• the existence of any fact which, if established would constitute a breach of an international obligation; and
• the nature or extent of the reparation to be made for the breach of an international obligation.

A State that is not a member of the United Nations may also institute a claim before the ICJ provided it would comply with the decisions of the court and uphold all the obligations of a member.

Additionally, Article 37 provides that a matter between States who are parties to the present Statute which was referred to a tribunal or the PCIJ by treaties or conventions under the League of Nations shall be referred to the ICJ.

In furtherance, Article 36(6) provides that the Court shall determine its Jurisdiction where a question arises to that effect.

• Declaration of the Court

Article 36(3-5) stipulates that conditional or unconditional declarations may be made by the Court regarding the matters that have been mentioned in paragraph 2 of Article 36, and deposited with the Secretary General of the United Nations who shall transmit copies of the declaration to the parties. Furthermore, declarations made under the Permanent Court of International Justice (PCIJ) shall be deemed to be under the compulsory jurisdiction of the ICJ.

• Applicable Laws

The laws that are applicable for the determination of disputes and legal questions by the ICJ are listed in Articles 38 of the ICJ Statute, which are International Conventions, International Customs, General Principles, Judicial decisions and the teachings or writings of highly qualified publicists.

Chapter III: Procedure (Articles 39 – 64)^[3]

This chapter covers the procedural rules and functions of the ICJ, representation of parties, language for pleadings and proceedings, service of notices and judgement.

• Official Language

Article 39(1) stipulates the official language of the court to be English and French. Where the parties agree on either language, the judgement of the court shall be delivered in that particular language. However, where no such agreement subsists between the parties, the pleadings of the parties shall be in their preferred language (English or French) and the decision of the court shall be in both languages. Conversely, the court may authorize the change of the official language subject to the request of the parties.

• Representation of Parties

Article 41 provides that the court has the power to give provisional measures in order to protect the rights of any party if it considers that the circumstances require so, and inform the Security Council and the parties of the measures suggested while the final decision is pending.

The provisional measures are mandatory and would not affect the final decision. The final judgment of the ICJ will take full account of compliance or non-compliance to the provisional measures adopted during the examination, and failure to comply with the interim measures constitutes a violation of the international obligations of the State concerned and entails legal liability for that State.^[4]

Some ICJ judgments have clarified the court’s power to order provisional measures as a matter of urgency, while waiting for the final decision of the case e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar ), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 3, paras. 64 and 65;^[5] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures , Order of 16 March 2022, I.C.J. Reports 2022, p. 211, paras. 65, 66, 74, 75 and 77.^[6] The Court considers that the condition of urgency is met, particularly, where:^[7]

• irreparable damage may be caused to rights which are the subject of legal proceedings;
• the alleged failure to respect those rights may have irreparable consequences; and
• there is a real and imminent risk of irreparable damage being caused.

The acts likely to cause irreparable damage may occur at any moment.

Article 42 requires that parties are to be represented by agents and assisted by counsels who shall enjoy the privileges and immunities necessary for the sole purpose of exercising their duties.

Article 50 establishes that the court may at anytime entrust an individual, body, bureau, commission, or other organizations with the task of carrying out an enquiry or giving an expert opinion.

Article 53(1) covers situations where a party fails to defend his case or appear before the court, that the other party may call upon the court to determine the case in favor of his claims. Where the court is satisfied that it has Jurisdiction over the claims made in fact and law, then the court would determine the case.

• Proceedings

Article 42 stipulates the proceedings that the procedure of the court shall consist of written and oral parts. According to Article 43 the written proceedings shall consist of communication to the court and between the parties; memorials, counter-memorials, replies (if necessary) and the certified copy of every document produced by one party to the other, while the oral proceedings shall consist of the hearing by the court of witnesses, experts, agents, counsels and advocates.

According to Article 46, the hearings of the court are public unless a party request to the court that the public should not be admitted in the case. Furthermore, Article 47 provides that minutes shall be made in every hearing.

• Judgement

Article 56 provides that the judgements of the court shall state the reason on which the decision is based and mention the names of the judges who participated in the proceedings. In furtherance, Article 57 provides that where the judgement was not held unanimously, the dissenting judge or judges are entitled to deliver a separate opinion and the judgement shall be signed by the President and Registrar of the Court.

Article 60 states in accordance with Article 94 of the UN Charter, that the judgement of the court is final and cannot be appealed, however an application to revise the judgement may be made to the court which would consider the application upon the discovery of certain decisive factors. The factors to consider for the revision of a judgement, the proceedings and conditions stipulated for the revision of a judgement are all regulated by the Statute.

The judgments and decisions of the ICJ can establish the facts, determine the applicable law in a given situation and whether a State can be held responsible for acts in breach of its international obligations.^[8] An act can be considered to be internationally wrongful if it can be attributed to the conduct of the State, of its agents, or persons acting on its behalf or under its control. Such an act entails the international responsibility of the State and gives rise to a right to reparation or which the state in question is required to make full reparation for the damage cause to the injured state, in accordance with the general principles of international public law relating to the responsibility of States.^[9]

Chapter IV: Advisory Opinions (Articles 65 – 68)^[10]

Article 65 governs the advisory jurisdiction of the Court and provides that the Court may give an advisory opinion on any legal question at the request (written request containing the exact question upon which the opinion is required) of any body that may be authorized by or in accordance with UN Charter (Article 96) to make such request. The advisory opinion may be requested by any organ of the United Nations to clarify their functions or answer Legal questions, e.g. the Security Council could refer a matter subject to International Humanitarian Law to the court for advisory opinion when it is involved in the peaceful settlement of disputes between states (Article 33 & 36 UN Charter) or it could seek the court to answer legal questions regarding the legality of the use by a State of nuclear weapons in an armed conflict, the legal consequences of the construction of a wall in the occupied Palestinian territory and the admission of a State to the United Nations etc.

Article 67 provides that the court shall deliver its advisory opinion in open court after notices have been given to the Secretary General and the representatives of members of the UN. According to Article 68 the court shall be guided by the provisions of the Statute in the exercise of its advisory functions.

Chapter V: Amendment (Articles 69 & 70)^[11]

Article 69 provides that the Statute shall be amended according to the procedure provided in the UN Charter and also that the court has the power to propose such amendments as is necessary through written communication to the Secretary General.

Conclusion

The Statute of the International Court of Justice is annexed to the United Nations Charter 1945 to establish the ICJ as the principal judicial organ of the UN. The Statute governs and regulates the composition of the court, its jurisdiction, procedure, function of judges and determines the powers of the court. This piece was able to highlight the most relevant provisions of the Statute and make them more comprehensive.

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11. Statute of the Court Of Justice | INTERNATIONAL COURT OF JUSTICE (icj-cij.org)