When two countries disagree over a border, a sea channel or the meaning of a treaty, where do they go to settle the matter by law rather than by force? The answer is the International Court of Justice (ICJ). For any student of Public International Law, the ICJ is one of the most important institutions to understand. This article explains, in simple steps, how the Court was formed, its early milestones, its powers and functions, its composition, its jurisdiction and whether its decisions are binding. Short examples and a quick revision table are included to help you remember the key points for your exams.
Introduction: What is the International Court of Justice (ICJ)?
The International Court of Justice (ICJ), also known as the World Court, is the main judicial branch of the United Nations (UN). In simple words, it is the UN's own court. It was established in 1945 and started operations in April 1946. It is one of the six principal organs of the UN.
Key facts to remember:
- Seat: The ICJ is based in The Hague, Netherlands.
- Predecessor: It is the successor to the Permanent Court of International Justice (PCIJ). A "successor" is a body that takes the place of an earlier one.
- The PCIJ: It was established by the League of Nations in 1920 and was dissolved in 1946.
- After World War II: The League of Nations was replaced by the United Nations, and the PCIJ was replaced by the ICJ.
Notably, the ICJ is the only one of the UN's principal organs that is not headquartered in New York, USA. This is a popular objective-type question in exams.
The Court's activities are governed by international law. Its primary role is to adjudicate disputes between states. To "adjudicate" means to hear a dispute and give a formal legal decision on it. However, the Court can only hear cases if the states involved consent to its jurisdiction. "Jurisdiction" means the legal power of a court to hear and decide a case.
Consent is the foundation of the ICJ's work. Even though it is the "World Court", it cannot force a state to appear before it. A case can go ahead only if the states involved agree to the Court's jurisdiction.
Formation of the International Court of Justice
The ICJ was established on June 26, 1945, in San Francisco, California, USA. To understand why it was created, we must first look at its predecessor, the PCIJ.
The background: the PCIJ and the League of Nations
The PCIJ was created in the wake of World War I as part of efforts to maintain global peace and security through the League of Nations. The League itself was established by the Paris Peace Conference of 1919.
In 1920, the League of Nations adopted the statute of the PCIJ. A "statute" here means the basic founding document that sets out how a court is organised and how it works. Two important differences between the PCIJ and the ICJ should be noted:
- Unlike the ICJ, the PCIJ was not part of the League itself.
- Members of the League were not automatically parties to its statute.
The decline of the PCIJ
By 1933, growing international tensions began to undermine the effectiveness of the PCIJ, and its activities gradually declined. World War II further disrupted its functions, and its activities culminated in its final order in February 1940.
Planning a new international court
In 1942, the United States and the United Kingdom jointly advocated for the re-establishment of an international judicial body. By 1943, the UK led a panel of jurists from around the world, called the "Inter-Allied Committee", to discuss the creation of a new international court. (A "jurist" is an expert in law.)
In 1944, the Committee's report made several key recommendations:
- The court should focus solely on judicial matters, avoiding political issues.
- The new court's statute should be based on that of the PCIJ.
- Acceptance of the court's jurisdiction should be voluntary.
- The court should retain an advisory role (that is, it should be able to give legal advice in the form of opinions, not only decide disputes).
You can see that recommendations 3 and 4 are reflected in the ICJ today: its jurisdiction depends on consent, and it gives advisory opinions.
The end of the PCIJ
Following further discussions and conferences, the steps in the closing of the PCIJ were:
- October 1945: The PCIJ convened for the last time.
- January 31, 1946: All its judges resigned.
- April 1946: The PCIJ was formally dissolved.
Early Milestones of the International Court of Justice
- The first election of ICJ members took place in February 1946.
- José Gustavo Guerrero of El Salvador, the last president of the PCIJ, became the first president of the ICJ. This shows the link of continuity between the old court and the new one.
- The ICJ's first case was submitted in May 1947 by the United Kingdom against Albania, concerning the Corfu Channel incidents.
Corfu Channel (United Kingdom v. Albania): This was the first case submitted to the ICJ, in May 1947, by the United Kingdom against Albania, concerning the Corfu Channel incidents. Remember it as the ICJ's very first case.
Powers and Functions of the ICJ
Organisation of the Court
- Judges: The ICJ is composed of 15 judges.
- Term: Each judge is elected to a nine-year term.
- Who elects them: The UN General Assembly and the Security Council.
- Registry: The Court is supported by a registry, which acts as its administrative body (like the office that handles the Court's paperwork and day-to-day administration).
- Official languages: English and French.
The two main functions
The ICJ has two main functions:
- Settling legal disputes between states in accordance with international law.
- Providing advisory opinions on legal questions referred to it by authorised UN organs and specialised agencies. An "advisory opinion" is the Court's legal view on a question; it is given as advice rather than as a judgment between two parties.
Neha, an LL.B. student, is preparing for her exam. She remembers the two functions with one simple line: "The ICJ decides disputes between states and advises authorised UN bodies." Decide and advise are the two functions.
Current Composition of the Court
As of February 6, 2018, Honorable Justice Abdulqawi Yusuf serves as the President of the ICJ, with his term ending on February 5, 2021. The Vice President, Honorable Jurist Xue Hanqin, serves concurrently with the same term as the President.
The information above is stated as of the dates mentioned. The composition of the Court changes over time, so students should check the latest position from the ICJ's official sources before an exam or interview.
Jurisdiction of the International Court of Justice (ICJ)
Who can be a party to the ICJ Statute?
- UN member states: All United Nations member states are automatically parties to the statute of the ICJ, as outlined in Article 93 of the UN Charter.
- Non-UN member states: Non-UN member states can also become parties to the ICJ statute by following the procedure detailed in Article 93(2) of the UN Charter.
For example, Switzerland, which was not a UN member at the time, used this procedure to become a party to the ICJ statute.
Being a party does not mean automatic jurisdiction
Once a state becomes a party to the Court's Statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically grant the Court jurisdiction over disputes involving those parties. This goes back to the basic rule of consent explained above.
Suppose Country A and Country B are both UN members, so both are parties to the ICJ Statute. Country A wants to bring a boundary dispute against Country B. Being parties to the Statute allows them to participate in cases before the Court, but the Court will have jurisdiction over this dispute only if the states involved consent to it. (This is a hypothetical example.)
Types of Jurisdiction Considered by the ICJ
The ICJ's jurisdiction is considered in three types of cases:
1. Contentious Cases
A "contentious" case is a real dispute between two or more parties in which the Court gives a decision.
- Only states can be parties in contentious cases.
- Corporations, individuals, or non-governmental organisations (NGOs) cannot participate as parties in these cases.
- The ICJ issues binding rulings in disputes between states that agree to the Court's jurisdiction.
Farhan, an Indian businessman, has a dispute with a foreign government. He cannot himself file a contentious case before the ICJ, because only states can be parties in contentious cases. The same applies to a company or an NGO run by Zoya. (This is a hypothetical example.)
2. Incidental Jurisdiction
The Court has the authority to issue interim measures to protect the rights of the parties involved in a dispute until a final judgment is made. "Interim measures" are temporary orders made during a case, so that the rights of the parties are not harmed before the Court gives its final decision. This type of jurisdiction is discussed in Article 14 of the ICJ Statute.
3. Advisory Opinions
- This function of the ICJ is available only to certain United Nations bodies and agencies.
- The UN Charter grants the General Assembly and the Security Council the power to request the Court to issue an advisory opinion on legal questions.
- Other UN organs do not have this power and cannot request advisory opinions.
- While these opinions are consultative (meaning they are given as advice), they are highly influential and widely respected.
| Type | Who is involved | Nature of the outcome |
|---|---|---|
| Contentious cases | Only states (not corporations, individuals or NGOs) | Binding rulings in disputes between states that agree to the Court's jurisdiction |
| Incidental jurisdiction | Parties to a pending dispute | Interim measures to protect rights until the final judgment |
| Advisory opinions | Certain UN bodies and agencies (the General Assembly and the Security Council under the UN Charter) | Consultative, but highly influential and widely respected |
Are ICJ Decisions Binding?
A common question is whether the ICJ's decisions are binding. The answer has two parts:
- Yes, they are binding: According to Article 94 of the UN Charter, the judgments delivered by the ICJ in disputes between states are binding on the parties involved.
- But the ICJ cannot enforce them: The ICJ does not have the power to enforce its decisions.
So what happens if a state does not obey a judgment? Article 94 further states:
"If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."
In plain words: if one state ignores the judgment, the other state can approach the UN Security Council. The Security Council may, if it thinks it necessary, make recommendations or decide what measures should be taken to give effect to the judgment.
Hansa and Renu are discussing a hypothetical case in their moot court practice. Country A wins a judgment against Country B, but Country B refuses to comply. The ICJ itself cannot enforce the judgment. Under Article 94 of the UN Charter, Country A may have recourse to the Security Council, which may make recommendations or decide upon measures to give effect to the judgment.
Binding but not self-enforcing: ICJ judgments bind the parties (Article 94 of the UN Charter), but enforcement depends on the Security Council, not on the Court.
Quick Revision Table
| Point | Fact |
|---|---|
| Also known as | World Court |
| Established | June 26, 1945, San Francisco |
| Started operations | April 1946 |
| Seat | The Hague, Netherlands |
| Predecessor | PCIJ (established 1920, dissolved April 1946) |
| Judges | 15, each for a nine-year term |
| Elected by | UN General Assembly and Security Council |
| Official languages | English and French |
| First president | José Gustavo Guerrero (El Salvador) |
| First case | Corfu Channel (United Kingdom v. Albania), May 1947 |
| Parties to Statute | Article 93 and Article 93(2) of the UN Charter |
| Binding nature of judgments | Article 94 of the UN Charter |
| Law applied | Article 38 of the ICJ Statute |
Conclusion
The International Court of Justice plays a crucial role in resolving disputes between states and maintaining global peace and harmony. While the Court is based in The Hague, Netherlands, its sessions can be held wherever it deems appropriate.
The ICJ applies international law, as summarised in Article 38 of its statute, including:
- international conventions,
- customs, and
- general principles of law.
Additionally, the Court has the authority to establish its own rules and procedures to ensure smooth operations, as outlined in the Rules of Court of the International Court of Justice 1978 (amended on 29 September 2005).
To sum up for your exams: the ICJ is the UN's principal judicial organ, it grew out of the PCIJ, its jurisdiction rests on the consent of states, it decides disputes between states and gives advisory opinions, and its judgments are binding on the parties, though enforcement depends on the Security Council under Article 94 of the UN Charter.
