International Court of Justice - Wikipedia

 

icj article 38

The International Court of Justice (ICJ) sometimes called the World Court, is the principal judicial organ of the United Nations (UN). Sienho Yee, Article 38 of the ICJ Statute and Applicable Law: Selected Issues in Recent Cases, 7 Journal of International Dispute Settlement (), –Authorized by: UN Charter, ICJ Statute. The International Court of Justice, which has its seat in The Hague, is the principal judicial organ of the United Nations. 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 Justice.


Sources of international law - Wikipedia


The ICJ's primary functions are to settle international legal disputes submitted by states contentious cases icj article 38 give advisory opinions on legal issues referred to it by the UN advisory proceedings.

Through its opinions and rulings, it serves as a source of international law. The Statute of icj article 38 ICJ draws heavily from that of its predecessor, and the latter's decisions remain valid. The first permanent institution established for the purpose of settling international disputes was the Permanent Court of Arbitration PCAwhich was created by the Hague Peace Conference of Initiated by Russian Czar Nicholas II, the conference involved all the world's major powers, as well as several smaller states, icj article 38, resulted in the first multilateral treaties concerned with the conduct of warfare.

Although the proceedings would be supported by a permanent bureau—whose functions would be equivalent to that of a secretariat or court registry—the arbitrators would be appointed by the disputing states from a larger pool provided by each member of the Convention, icj article 38.

The PCA was established in and began proceedings in A second Hague Peace Icj article 38 inwhich involved most of the world's sovereign states, revised the Convention and enhanced the rules governing arbitral proceedings before the PCA. During this conference, the United States, Great Britain and Germany submitted a joint proposal for a permanent court whose judges would serve full-time.

As the delegates could not agree as to how the judges would be selected, the matter was temporarily shelved pending an agreement to icj article 38 adopted at a later convention. The Hague Peace Conferences, and the ideas that emerged therefrom, influenced the creation of the Central American Court of Justiceicj article 38, which was established in as one of the earliest regional judicial bodies.

Various plans and proposals were made between and for the establishment of an international judicial tribunal, which would not be realized into the formation of a new international system following the First World War. The unprecedented bloodshed of the First World War led to the creation of the League of Nationsicj article 38, established by the Paris Icj article 38 Conference of as the first worldwide intergovernmental organization aimed at maintaining peace and collective security.

Article 14 League's Covenant called for the establishment of a Permanent Court of International Justice PCIJwhich would be responsible for adjudicating any international dispute submitted to it by the contesting parties, as well as to provide icj article 38 advisory opinion upon any dispute or question referred to it by the League of Nations.

In Decemberfollowing several drafts and debates, the Assembly of the League unanimously adopted the Statute of the PCIJ, which was signed and ratified the following year by a majority of members.

Among other things, the new Statute resolved the contentious issues of selecting judges by providing that the judges be elected by both the Council and the Assembly of the League concurrently but independently. The United States, which played a key role in both the second Hague Peace Conference and the Paris Peace Conference, icj article 38, was notably not a member of the League, although several of its nationals served as judges of the Court, icj article 38.

From its first session in untilthe PCIJ dealt with 29 interstate disputes and issued 27 advisory opinions. The Court's widespread acceptance was reflected by the fact that several hundred international treaties and agreements conferred jurisdiction upon it over specified categories of disputes. In addition to helping resolve several serious international disputes, the PCIJ helped clarify several ambiguities in international law that contributed to its development.

The United States played a major role in setting up the World Court but never joined. Following a icj article 38 of activity inthe PCIJ began to decline in its activities due to the growing international tension and isolationism that characterized the era. The Second World War effectively put an end to icj article 38 Court, which held its last public session on December and icj article 38 its icj article 38 orders on February In the United States and United Kingdom jointly declared support for establishing or re-establishing an international court after the war, and inthe U.

Its report recommended that:. The following Allied conference at Dumbarton Oaksin the United States, icj article 38, published a proposal in October that called for the establishment of an intergovernmental organization that would include an international court.

A meeting was subsequently convened in Washington, icj article 38, D. The draft statute was substantially similar to that of the PCIJ, icj article 38, and it was questioned whether a new court should even be created. During the San Francisco Conferencewhich took place from 25 April to 26 June and involved 50 countries, it was decided that an entirely new court should be established as a principal organ of the new United Nations.

Consequently, the PCIJ convened for the last time in October and resolved to transfer its archives to its successor, which would take its place at the Peace Palace. The Court also appointed members of its Registry, drawn largely from that of the PCIJ, and held an inaugural public sitting later that month. The first case was submitted in May by the United Kingdom against Albania concerning incidents in the Corfu Channel.

The Statute of the International Court of Justicesimilar to that of its predecessor, is the main constitutional document constituting and regulating the court. The court's workload covers a wide range of judicial activity. After the court ruled that the United States 's covert war against Nicaragua was in violation of international law Nicaragua v. United Statesthe United States withdrew from compulsory jurisdiction in to accept the court's jurisdiction only on a discretionary basis.

However, such enforcement is subject to the veto power of the five permanent members of the Council, icj article 38, which the United States used in the Nicaragua case.

Elections are staggered, with five judges elected every three years to ensure continuity within the court, icj article 38. Should a judge die in office, the practice has generally been to elect a judge in a special election to complete the term. No two judges may be nationals of the same country.

According to Article 9, the membership of the court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, that has meant common lawicj article 38, civil law and icj article 38 law icj article 38 post-communist law. There is an informal understanding that the seats will be distributed by geographic regions so that there are five seats for Western countries, three for African states including one judge of francophone civil law, one of Anglophone common law and one Arabtwo for Eastern European states, three for Asian states and two for Latin American and Caribbean states.

Exceptions have been China not having a judge on the court from toduring which time it did not put forward a candidate, and British judge Sir Christopher Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench inleaving no judges from the United Kingdom on the court. Article 6 of the Statute provides that all judges should be "elected regardless icj article 38 their nationality among persons of high moral character" who are either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law.

Judicial independence is dealt with specifically in Articles 16— Judges of the ICJ are not able to hold any other post or act as counsel. In practice, members of the court have their own interpretation of these rules and allow them to be involved in outside arbitration and hold professional posts as long as there is no conflict of interest, icj article 38. A judge can be dismissed only by a unanimous vote of the other members of the court.

Judges may deliver joint judgments or give their own separate opinions. Judges may also deliver separate dissenting opinions, icj article 38. Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases before the court. The system allows any party to a contentious case if it otherwise does not have one of that party's nationals sitting on the court to select one additional person to sit as a judge on that case icj article 38. It is thus possible that as many as seventeen judges may sit on one case.

The system may seem strange when compared with domestic court processes, but its purpose is to encourage states to submit cases. For example, if a state knows that it will have a judicial officer who can participate in deliberation and offer other judges local knowledge and an understanding of the state's perspective, it may be more willing to submit to the jurisdiction of the court. Although this system does not sit well with the judicial nature of the body, it is usually of little practical consequence.

Ad hoc judges usually but not always vote in favour of the state that appointed them and thus cancel each other out. Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a chamber. Articles 26—29 of the statute allow the court to form smaller chambers, usually 3 or 5 judges, to hear cases. Two types of chambers are contemplated by Article firstly, chambers for special categories of cases, and second, the formation of ad hoc chambers to hear particular disputes.

Ina special chamber was established, under Article 26 1 of the ICJ statute, to deal specifically with environmental matters although it has never been used. Ad hoc chambers are more frequently convened, icj article 38. Judgments of chambers may have either less authority than full Court judgments or diminish the proper interpretation of universal international law informed by a variety of cultural and legal perspectives. On the other hand, the use of chambers might encourage greater recourse to the court and thus enhance international dispute resolution.

For example, before becoming a UN member state, Switzerland used this procedure in to become a party, and Nauru became a party in However, being a party to the statute does not automatically give the court jurisdiction over disputes involving those parties.

The issue of jurisdiction is considered in the three types of ICJ cases: contentious issues, incidental jurisdiction, and advisory opinions. In contentious cases adversarial proceedings seeking to settle a disputethe ICJ produces a binding ruling between states that agree to submit to the ruling of the court.

Only states may be parties in contentious cases, icj article 38. Individuals, corporations, component parts of a federal state, Icj article 38, UN organs and self-determination groups are excluded from direct participation in cases although the court may receive information from public international organizations, icj article 38.

That does not preclude non-state interests from being the subject of proceedings if a state brings the case against another. For example, a state may, in cases of "diplomatic protection", bring a case on behalf of one of its nationals or corporations, icj article 38. Jurisdiction is often a crucial question for the court in contentious cases. See Procedure below. The key principle is that the ICJ has jurisdiction only on the basis of consent.

Article 36 outlines four bases on which the court's jurisdiction may be founded:. Until rendering a final judgment, icj article 38, the court has competence to order interim measures for the protection of the rights of a party to a dispute, icj article 38. One or both parties to a dispute may apply the ICJ for issuing interim measures. In the Frontier Dispute Case, both parties to the dispute, Burkina Faso and Malisubmitted an application to the court to indicate interim measures.

The ICJ has competence to indicate interim measures only if the prima facie jurisdiction is satisfied. An advisory opinion is a function of the court open only to specified United Nations bodies and agencies, icj article 38. The UN Charter grants the General Assembly or the Security Council a power to request the court to issue an advisory opinion on any legal question.

Other organs of the UN only request an advisory opinion of the court regarding the matters falling into the scope of their activities. Advisory opinions were intended as a means by which UN agencies could seek the court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the court's advisory opinions are only consultative in character but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently, they are non-binding under the Statute of the Court.

This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the court's authoritative views on important issues of international law. In arriving at them, the court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign icj article 38. An advisory opinion derives its icj article 38 and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

Advisory opinions have often been controversial because the questions asked are controversial or the case was pursued as an indirect way of bringing what is really a contentious case before the court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such well-known advisory opinion is the Nuclear Weapons Case. Article 94 establishes the duty of all UN members to comply with decisions of the court involving them.

If icj article 38 do not comply, the issue may be taken before the Security Council for enforcement action. There are obvious problems with such a method of enforcement. If the judgment is against one of the permanent five members of the Security Council or its allies, icj article 38, any resolution on enforcement would then be vetoed.

That occurred, for example, after the Nicaragua casewhen Nicaragua brought the issue of the United States' noncompliance with the court's decision before the Security Council.

Furthermore, the most effective form to take action for the Security Council, coercive action under Chapter VII of the United Nations Chartercan be justified only if international peace and security are at stake.

 

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icj article 38

 

The International Court of Justice, which has its seat in The Hague, is the principal judicial organ of the United Nations. Article 38 of the ICJ statute defines what sources of law the court shall apply during the proceedings: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: > a. internat. The International Court of Justice (ICJ) sometimes called the World Court, is the principal judicial organ of the United Nations (UN). Sienho Yee, Article 38 of the ICJ Statute and Applicable Law: Selected Issues in Recent Cases, 7 Journal of International Dispute Settlement (), –Authorized by: UN Charter, ICJ Statute.