International Court of Justice: procedures, advisory opinions, and comparison to U.S. courts

International Court of Justice

The action of international states as actors has precipitated the need to have measures that can function beyond the limits of a single country. The action of states in their relationships with other states at times requires external intervention for the resolution of problems. Laws and treaties that govern the relationship between states as it relates to maritime sovereignty and other issues may be breached and a mechanism is required to address this breech without military action. This scenario requires that an international body that can function as a neutral arbiter between states. The International Court of Justice provides such a facility to the international community.

The International Court of Justice (ICJ) is also known as the world court. It is the main judicial arm of the United Nations. The ICJ was not the first world court as it replaced the Permanent Court of International Justice. The Permanent Court of International Justice was created in 1922 and was attached to the League of Nations.

The ICJ was established through a United Nations charter in 1945 but began its work in 1946. The primary concern of the international court of justice is to resolve legal conflicts between nation states. Additionally, the court may provide advisory opinions on legal questions that may be presented to the court via bona fide international agencies and the United Nations General Assembly. The ICJ has fifteen justices who serve nine-year terms (International Criminal Court 2010). The election of the judges is done by the UN General Assembly and the Security Council. The work of the court is supported by an administrative registry.

The entire membership of the United Nations is party to the statutes of the ICJ. Countries who are not member of the UN are afforded a facility through Article 93(2) to become a party without membership. States who are party to the ICJ have the benefit of having their disputes heard before the ICJ (Posner & de Figueiredo, 2005, p.600). The ICJ however does not assume jurisdiction over disputing member states without the states sending the matter to the ICJ.

The ICJ has the power to create the rules that govern its policies and court procedures. The ICJ has therefore produced a pattern of procedures to follow for the hearing of a case at the court. The applicant must first file a written memorial which contains the details of the applicant's case. The respondent may decide to work within this framework and then file their memorial that details their side of the argument. If a respondent is not desirous of participating in the process they must state this preliminary objection. The preliminary objection will be heard in a public hearing and decided upon.

After the objections are heard and determined the court then proceeds with the case. Very often when a case is filed parties seek an order from the court to preserve the status quo until the matter has been decided. This is very similar to the request for an interlocutory injunction in the United States court system. The injunction ensures that things remain as is until the matter is decided one way or the other. For the court to move further with the case it must be clear that the court does have jurisdiction in this matter.

After the positions have been articulated by both parties and all the evidence produced and examined the court supplies a ruling on the issue. The decision is usually a majority opinion. It is also possible that judges may produce dissenting opinions when they disagree with the ruling of the court or they may give a separate opinion when there is discord on the reasoning of the court. There is no mechanism of appeal to a decision of the ICJ.

The ICJ has two types of jurisdiction over its members. It may give rulings in contentious cases or it may provide advisory opinions to members. When there is a contentious case before the court it is there because the member countries could not resolve the dispute between themselves. The matter was then sent to the ICJ for its ruling on the matter. When the ICJ rules in this case the ruling is binding on the states. For contentious cases only nation states are permitted to bring cases before the court. The court does not address the concerns of corporations, organs and other interested groups in this process. The mechanism open to non-state actors to have matters brought before the court for a judgment is to have a state raise the matter on behalf of the group.

The court also provides an advisory opinion to specified bodies and agencies of the United Nations (Germain's International, 2010). The advisory opinion facility is a mechanism through which the ICJ assists agencies with complex legal issues that pertain to them. The opinions are only to be used in a consultative manner and have no legal standing and are essentially non-binding. However, because of the source of the legal opinion it is usually highly influential and serves as an authoritative statement of the official views of the court.