The international court of justice and settlement of interstate conflicts

Abstract

This work is about the International Court Of Justice And The Settlement Of Interstate Conflicts. The International Court Of Justice is the principal judicial organ of the United Nations. This work goes a long way to show the insurgency which started in 2006 whereby after independence, this borderland ”The Bakassi peninsula ” between Cameroon and Nigeria was not settled which then called for the procedure before the International Court Of Justice where this dispute was settled and the land given to Cameroon on the 25^th of September 2009.

In this work, we see the judicial and diplomatic approach on how the dispute was resolved between them as such a great achievement of the International Court of Justice on the settlement of interstate conflicts.

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background to The Study

The International Court of Justice (ICJ) is, of course, the principal judicial organ of the United Nations1. It is the legal successor to the Permanent International Court of Justice (PCIJ), whose jurisprudence “remains pertinent and compelling to this day”2. Like its predecessor, the ICJ has a dual role: to settle in accordance with international law the legal disputes submitted to it by

States, and to give advisory opinions on legal questions submitted to it by the UN General

Assembly and the Security Council and other duly authorized organs and agencies. It is often known as the “World  Court”.  It was established in 1946 by United Nations 3. After the Second World War, the Permanent International Court of Justice (PICJ) was replaced by ICJ. The seat of the court is at Peace Palace in The Hague4. Its official language is English and French. The Court operates under a Statute which forms an integral part of the Charter, as well as

under its own Rules.

The roots of the ICJ go back to an era at the beginning of the 19th century when visionaries believed that war could be outlawed and that governments could settle their disputes by using an

international court. One of the treaties was The Hague Convention for the Peaceful Settlement of international disputes. Countries that agreed to be bound by that treaty agreed to settle their disputes by peaceful means, such as through the new Permanent Court of Arbitration.  The Permanent Court of International Justice (PCIJ) was created in 1920 alongside the League of Nations. Between 1922 and 1940 it dealt with 29 contentious cases brought to it by countries, and it gave 28 Advisory Opinions to the Council of the League of Nations. During World War II, thought was given to a new League and a new court. The International Court of Justice (ICJ) Statute forms part of the UN Charter that was signed in June 1945 and entered into force on October 24th 1945. A Member of the UN automatically becomes a Member of the ICJ5.

The International Court of Justice has two main tasks as per Article 34 and 35 of the Statute6; first, it handles contentious cases brought to it by countries that have accepted its jurisdiction. Its workload has varied. It was quite busy between 1946 and about 1966. Communist countries and Third World countries boycotted it as a club for rich western countries. Since the late 1980s it has been busier than ever before (and much busier than the PCIJ ever was). Countries have now found greater use of it; ironically about the a third of recent cases have been dispute between African countries. As at February 2005, the ICJ has delivered 89 judgments since 1946, dealing with such matters as land frontiers and maritime boundaries, territorial sovereignty, the non-use of force, non-interference in the internal affairs of countries, diplomatic relations, hostage taking, the right of asylum, nationality, rites of passage and economic rights.

The ICJ’s second task is to give Advisory Opinions to the UN institutions. The Opinions are not binding on the UN institutions that ask for them and no country is bound to take notice of any Opinion. Since 1946, the ICJ has given 25 Advisory Opinions, concerning such matters as admission to UN Membership, reparation for injuries suffered in the service of UN, territorial status of South-West Africa (Namibia) And Western Sahara, payments for UN operations, status of UN Human Rights Rapporteurs, the legality of the threat or use of nuclear weapons, and the legal consequences of the construction of a wall in the occupied Palestinian territory.

The ICJ is composed of 15 Judges8 elected to nine-year terms of office by the UN General Assembly and the Security Council sitting independently of each other. It may not include more than one judge of any nationality. Judges serve in their personal capacity and do not represent their governments.

Function of ICJ is to resolve the dispute between the sovereign states. Disputes may be placed before the court by parties upon conditions prescribed by the U.N. Security Council. No state, however, may be subject to the jurisdiction of the court without the state’s consent. Consent may

be given by express agreement at  the time  the  dispute  is  presented  to  the court,  by prior

agreement to accept the jurisdiction of the court in particular categories of cases, or by treaty provisions   with   respect   to   disputes   arising    from   matters   covered   by   the   treaty. Article 6(2)  of  the court’s  statute, known  as  the Optional  Clause,  allows  states to  make  a unilateral declaration recognizing “as  compulsory  ipso  facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes.”

The Court discharges its duties as a full court but, at the request of the parties, it may also establish ad hoc chambers to examine specific cases. A Chamber of Summary Procedure is elected every year by the Court in accordance with its Statute. And thus the focus of this work is to examine interstate dispute settlement by the International Court of Justice.

1.3 Statement of The Research Problem

The ICJ has made a great deal of progress. It has managed to survive all the ideological struggles of the Cold War and the winding up of colonies. It has a renewed sense of relevance and a busy workload to prove it. As at June 2005, the ICJ had 12 cases pending.

The most important challenge facing the ICJ borders on its jurisdiction. Jurisdiction is the sine qua non for the exercise of judicial powers. Where it is lacking, a judicial body cannot exercise legally binding judicial power over a subject. And thus considering the functioning of this international       court       since       inception, the       court       has       certain       problems. There are six problems: two are of a general nature and four relate to the ICJ in particular.  First, there   is   a   lack of   a   common   global   philosophy underpinning   respect   for   one system of international law.

There is equally the impact of national sovereignty. Many governments have been unwilling to   accept   that   the   ICJ   has   an   automatic    right    to   hear   cases   brought    against them (“compulsory jurisdiction”).

Only nation-states can be parties to an ICJ case14. This means that only countries can bring a case and only countries can be defendants.  In Australia, for example, there are occasionally statements that Aboriginal groups will take Australia to the ICJ because they disagree with a government policy; they cannot.  Particular ethnic groups and indigenous peoples have  no standing in their own right at the ICJ. Once an ICJ decision is made, there is no automatic “police force” to follow it up. The matter could be referred to the UN Security Council but here it would be vulnerable to the system of the five permanent members. For example, in the 1980s

Nicaragua took the United States to the ICJ over the mining of its harbours.  When the US realized that the case was going badly, it walked out the ICJ and then vetoed attempts by the UN Security Council to enforce the ICJ decision.

Not every dispute may be suitable for handling by an international court system. Example concerns the Suez Canal in the late 1950s, when Egypt was refusing the canal to be used by ships trading with Israel. The US was on good terms then with both Israel and Egypt, and urged both to take the dispute to the ICJ. But both refused since the ICJ would give a clear decision and neither side wanted to risk a clear judgment against it, (governments sometimes prefer a blurred result).

1.4 Research Questions

1. What is the composition and jurisdiction of the International Court of Justice in the settlement of interstates disputes?
2. What is the procedure before the International Court of Justice?
3. Was the procedure respected by the International Court of Justice in the settlement of the conflict between Cameroon and Nigeria over the Bakassi peninsular?
4. Are there policy recommendations for the effective management of Inter-States conflicts by the International Court of Justice?