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Past and Present Institutions for International Dispute Resolution.pdf (89.57 kB)

Past and Present Institutions for International Dispute Resolution

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posted on 2023-07-28, 18:44 authored by Jonathon DiPietroJonathon DiPietro

Introduction

The International Court of Justice (ICJ) is the primary judicial body of the United Nations, serving as the most legitimate international court.[1] The ICJ, formed in 1946, has had a longstanding controversial existence.[2] As an international mediating body, the court has the vital responsibility of resolving various disputes between nations.[3] These disputes can range from questions over the execution of treaties to the designation of borders and territories. Furthermore, the court faces public backlash on several fronts. The first issue comes from international institutions’ ability to enforce judgments against a country, which illegitimately violate that nation’s sovereignty. Secondly, there is a possibility for judgment bias due to the judge’s relationship to their parent country. This article will provide the background of international arbitral bodies and explain the jurisdiction and effectiveness of the International Court of Justice.

The History of International Judicial Institutions

International dispute resolution has gone through numerous iterations before appearing in its present form. The first process for international arbitration dates back to 1794. The “Treaty of Amity Commerce and Navigation, between His Britannic Majesty; and the United States of America,” most commonly referred to as the Jay Treaty, resulted in creating the first set of international commissions to settle disputes between the two parties.[4]

These commissions, which effectively served as recommending tribunals, met and discussed resolving disagreements on commerce issues between the United Kingdom and the United States.[5] This treaty would lead to a more powerful arbitral body established by the Treaty of Washington (1871).[6] The Treaty established a tribunal of delegates from the United States, United Kingdom, Brazil, Italy, and Switzerland.[7] This was the first example of a multi-nation group working to address grievances between two states.[8]

The next example of international arbitration occurred as a result of the Hague Peace Conference of 1899, which established the Permanent Court of Arbitration (PCA).[9] The PCA was a conference of jurists from some States of Europe, Asia, and Mexico.[10] Each State could send four delegates to join the convention.[11] The PCA split into arbitral tribunals, which addressed multi-nation disputes through court-like proceedings.[12] This court heard numerous landmark cases: the Carthage and Manouba cases (1913) concerning the seizure of vessels, the Timor Frontiers case (1914), and Sovereignty over the Island of Palmas (1928) cases.[13] These cases set the foundation for future judicial bodies to set international law. The PCA continues its mission today, where its members serve six-year terms.[14]

The direct predecessor of the International Court of Justice was the Permanent Court of International Justice (PCIJ).[15] Article 14 of the Covenant of the League of Nations provided the structure of the PCIJ.[16]

The PCIJ differed from the past courts, as it was a permanently constituted body governed by its Statutes and Rules of Procedure. In practice, it worked as a public body, holding open hearings and maintaining a permanent registry.[17] This court was structured very similarly to that of the ICJ. Over its years of operations (1922-1940), the PCIJ heard 29 cases and issued 27 opinions.[18] The Second World War resulted in a stop to the court’s activity and was officially dissolved in 1940.[19] Following the war, the United States and the United Kingdom pushed for the formation of a new court.[20] In 1945, the United Nations drafted the Statute of the International Court of Justice, the governing document of the ICJ.

The International Court of Justice

The International Court of Justice (ICJ) is composed of fifteen Judges elected to nine-year terms by the United Nations General Assembly and the United Nations Security Council. In order to preserve the continuity of operational knowledge of the court, one-third of the Court is elected every three years. The ICJ seeks a balance of representation of nationality, and has strict guidelines to ensure this principle is followed. The court may not include more than one member of the same country and that once elected, a Member of the Court is considered to be a delegate of neither the government of his own country nor of that of any other State.[21]

The Court perfectly describes its function:

The Court may entertain two types of cases: legal disputes between States submitted to it (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).[22]

When discussing the effectiveness and compliance with court orders of the ICJ, it is imperative to lay out the roles of the court in comparison to other judicial systems. Domestic courts serve as an equal weight to the federal government. The U.S. judiciary is equal to the legislative and executive branches.[23] In contrast, there is no “world government.” If the International Court of Justice were to act the same as an American court, it would be functioning without the support and legitimacy of the other branches. From this fact, the ICJ must act more as a mediator and a diplomat.

The ICJ has four primary goals, as established by the UN Charter and Statute of the Court:[24]

  1. The settlement of particular state-to-state disputes, peacefully and per international law;
  2. A contribution to the operation of institutions in the UN family, through advisory opinions;
  3. The development of international law in a manner that reflects the views of judges coming from diverse backgrounds, in the course of deciding contentious cases and rendering advisory opinions;
  4. The shaping of state behavior results from the prospect of adjudication in the World Court. The expectation and hope were that states would consent to the Court’s jurisdiction and that the prospect of ICJ jurisdiction would percolate in the background of national decision-making.

Conclusion

The International Court of Justice has been shaped by years of precedent around handling international arbitration, bilateral diplomatic agreements, and integrating into society with complex quasi-government systems. The ICJ hears cases of international disagreements and enforces its decisions by pressuring a resolution, either by convincing neighboring countries to hold them accountable or by directly ordering action. International cooperation is the key defining aspect of the legitimacy and effectiveness of the court. The ICJ has limited authority to direct a sovereign nation to take specific actions. However, the court fulfills its mandate by compelling the same result through diplomacy. This success has been present since its founding, and is expected to continue as long as supportive nations collaborate and comply.[25]

History

Notes

This Article is brought to you for free and open access by the Juris Mentem Law Review. This article has been accepted for inclusion in the Juris Mentem Digital Collection. The Digital Collection is edited by Juris Mentem Staff but is not peer-reviewed by university faculty. For more information, visit: https://www.american.edu/spa/jlc/juris-mentem.cfm Questions can be directed to jurismentem@american.edu

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