The International Court of Justice

Article 3(1). Fifteen members, no two of whom may be nationals of the same state.

Articles 4 to 7, nomination. Candidates are nominated by the national groups in the Permanent Court of Arbitration, or by national groups appointed for the purpose by governments of Members not represented there. No group may nominate more than four persons, not more than two of their own nationality. By article 6, each group is recommended to consult its highest court, its legal faculties and schools of law and its national academies before nominating.

Nomination by national groups rather than by governments is deliberate. It puts one step between the State and its candidate, which is the Statute's first protection of independence.

Article 9, the composition of the bench as a whole. At every election the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured.

Article 10, election. Candidates obtaining an absolute majority of votes in both the General Assembly and the Security Council are elected, and by article 10(2) the Council's vote is taken without any distinction between permanent and non-permanent members, so there is no veto in the election of judges.

Article 13(1). Members are elected for nine years and may be re-elected, with five seats falling vacant every three years, which keeps continuity on the bench.

Article 26, chambers. The Court may form chambers of three or more judges for particular categories of cases, and may at any time form a chamber for a particular case.

Article 31, the judge ad hoc. Judges of the nationality of either party retain their right to sit. If the Court includes a judge of the nationality of one party, the other party may choose a person to sit as judge; if the bench includes no judge of the nationality of either, each party may choose one. A judge so chosen takes part in the decision on terms of complete equality with the members of the Court.

The judge ad hoc looks like a concession to State interest and is defended on a different ground: that a party should be assured its arguments and its legal system are understood on the bench. Whether it fits the independence required by article 2 is a fair criticism.

Independence, and the working of the bench

Article 1 states the constitutional position: the Court established by the Charter as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the Statute.

Independence is protected by a group of short articles that are worth listing, because together they are what makes article 2's "independent judges" real.

Article 16. No member may exercise any political or administrative function, or engage in any other occupation of a professional nature, any doubt being settled by the decision of the Court.

Article 17. No member may act as agent, counsel, or advocate in any case, nor participate in the decision of a case in which he has previously taken part as agent, counsel or advocate, or as a member of a national or international court, of a commission of enquiry, or in any other capacity.

Article 18. No member can be dismissed unless, in the unanimous opinion of the other members, he has ceased to fulfil the required conditions, formal notification being made by the Registrar to the Secretary-General, and the notification making the place vacant. So the Court alone can remove a judge, and only unanimously; no State and no organ can.

Article 19. Members, when engaged on the business of the Court, enjoy diplomatic privileges and immunities.

Article 20. Every member, before taking up his duties, makes a solemn declaration in open court that he will exercise his powers impartially and conscientiously.

Article 24 allows a member who considers he should not sit in a particular case to inform the President, and allows the President to give notice to a member he considers should not sit, any disagreement being settled by the Court.

Article 15 provides that a member elected to replace one whose term has not expired holds office for the remainder of his predecessor's term.

The working arrangements. Article 21: the Court elects its President and Vice-President for three years, they may be re-elected, and it appoints its Registrar. Article 22: the seat is established at The Hague, which does not prevent the Court sitting elsewhere when it considers it desirable, and the President and Registrar reside at the seat. Article 23: the Court remains permanently in session except during judicial vacations, members being entitled to periodic leave. Article 30: the Court frames rules for carrying out its functions, and the Rules may provide for assessors to sit without the right to vote.

Chambers, articles 26 to 29. Besides the chambers for categories of case and for a particular case under article 26, article 29 requires the Court to form annually a chamber of five judges which, at the request of the parties, may hear and determine cases by summary procedure. Article 27: a judgment given by any chamber shall be considered as rendered by the Court. Article 28: chambers may, with the consent of the parties, sit elsewhere than at The Hague.

Money. Article 32: each member receives an annual salary, fixed by the General Assembly and not to be decreased during the term of office, with special allowances for the President and Vice-President and compensation for judges chosen under article 31. Article 33: the expenses of the Court are borne by the United Nations as the General Assembly decides. Article 64: unless otherwise decided by the Court, each party bears its own costs.

Amendment. Article 69: amendments to the Statute are effected by the same procedure as the Charter provides for its own amendment, subject to any provisions the General Assembly may adopt on the recommendation of the Security Council concerning States parties to the Statute that are not Members. Article 70: the Court may propose amendments through written communications to the Secretary-General.

Article 69 is the reason the Court's constitution has never changed. Amending the Statute means satisfying article 108 of the Charter, including ratification by all the permanent members.

Who may come before the Court

Article 34(1). Only states may be parties in cases before the Court.

That single sentence decides a great deal. Individuals, companies and non-governmental organisations have no standing whatever, which is why the injuries of individuals reach the Court only through diplomatic protection, as [Treatment of Aliens and Diplomatic Protection] explains, and why an international organisation cannot sue even though Reparation for Injuries gave it capacity to bring an international claim.

Article 34(2) and (3). The Court may request information from public international organisations and shall receive it when offered, and where the construction of the constituent instrument of such an organisation is in question, the Registrar shall notify it and send it the written proceedings.

Article 35(1). The Court shall be open to the states parties to the Statute.

Article 35(2). The conditions on which it is open to other states are laid down by the Security Council, subject to special provisions in treaties in force, and in no case shall such conditions place the parties in a position of inequality before the Court.

Jurisdiction: article 36

All jurisdiction rests on consent. The Statute provides three ways of giving it, and a fourth has grown from practice.

Article 36(1). The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter or in treaties and conventions in force.

(a) Special agreement. The parties agree to submit an existing dispute, defining the questions. The Gabcikovo case and the Bay of Bengal proceedings both began this way, and it is the surest form of consent because it is given after the dispute has arisen.

(b) A compromissory clause. A treaty provides in advance that disputes about it go to the Court. Consent is given when the treaty is concluded, and the Court's jurisdiction is confined to disputes about that treaty.

Article 36(2), the optional clause. States parties to the Statute may at any time declare that they recognize 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 concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an international obligation;

(d) the nature or extent of the reparation to be made for such a breach.

Article 36(3). The declarations may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time.

Article 36(4). Declarations are deposited with the Secretary-General, who transmits copies to the parties to the Statute and to the Registrar.

Article 36(5) carries over declarations made under the Permanent Court's Statute, and article 37 does the same for treaty clauses referring matters to the Permanent Court.

Article 36(6), competence de la competence. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

The optional clause in practice. Two features limit it severely. Because it operates only in relation to any other state accepting the same obligation, reciprocity allows a respondent to invoke the reservations in the applicant's declaration as if they were its own. And declarations are commonly made with wide reservations, excluding disputes with particular States, disputes within domestic jurisdiction as the declaring State determines, or matters of national security. Fewer than a third of the States parties to the Statute have declarations in force at any time, and none of them is a permanent member other than the United Kingdom.

Forum prorogatum, the fourth route. Where an applicant files against a State that has not consented, and that State nevertheless takes a step accepting jurisdiction, consent may be inferred from its conduct. It is rare and it depends entirely on the respondent's choice.

Article 38, the law applied, is set out in [The Sources of International Law]: international conventions, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations, and, subject to article 59, judicial decisions and the teachings of the most highly qualified publicists as subsidiary means; and article 38(2), power to decide ex aequo et bono if the parties agree, which has never been used.

Procedure and interim protection

Article 41(1). The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party, and article 41(2) requires notice of the measures to be given forthwith to the parties and to the Security Council.

The word indicate, rather than order, was long read as making provisional measures non-binding. The Court has since held that measures indicated under article 41 create legal obligations, and the reasoning turns on the object and purpose of the article, since measures that bound nobody could not preserve the rights they exist to protect.

Article 53, non-appearance. Where one party does not appear or fails to defend, the other may call on the Court to decide in favour of its claim, and the Court must satisfy itself that it has jurisdiction and that the claim is well founded in fact and law. Non-appearance does not produce judgment by default.

Article 42. Parties are represented by agents, with counsel and advocates.

The judgment: articles 59 to 61

Article 59. The decision of the Court has no binding force except between the parties and in respect of that particular case.

Article 59 is the article most often misused in answers. It means there is no doctrine of binding precedent in the Court, which is why article 38(1)(d) makes judicial decisions a subsidiary means for determining rules of law. What it does not mean is that the Court's decisions are unimportant: the Court follows its own reasoning closely, and the propositions in this book drawn from Nottebohm, Barcelona Traction, North Sea and the rest are authoritative because the Court has consistently maintained them, not because they bind as precedent.

Article 60. The judgment is final and without appeal. In the event of a dispute as to its meaning or scope, the Court shall construe it upon the request of any party.

Article 61, revision. An application for revision may be made only upon the discovery of a fact of such a nature as to be a decisive factor, unknown when the judgment was given both to the Court and to the party claiming revision, provided the ignorance was not due to negligence. It must be made within six months of the discovery and never after ten years from the date of the judgment.

Article 62 and 63, intervention. A State with an interest of a legal nature which may be affected may request permission to intervene, and a State party to a convention whose construction is in question has a right to intervene, in which case the construction given by the judgment is equally binding upon it.

Advisory opinions: articles 65 to 68

Article 65(1). The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter to make such a request.

Article 65(2). The question must be laid before the Court by a written request containing an exact statement of the question, accompanied by all documents likely to throw light upon it.

Four points to hold.

Who may ask. Under Charter article 96, the General Assembly and the Security Council on any legal question, and other organs and specialized agencies authorised by the Assembly on legal questions arising within the scope of their activities. A State can never request an opinion.

The question must be legal. The Court has consistently held that a question does not cease to be legal because it has political aspects, and that the political motives behind a request are not its concern.

"May" is discretionary. The Court has the power to decline, though it has treated a request as something it should not refuse without compelling reasons, since its answer is a participation in the work of the Organization.

Advisory opinions do not bind. They are advisory. Their authority is that of the Court's reasoning, and it is very great: Reparation for Injuries and the Reservations to the Genocide Convention opinion, both used in this book, changed the law although neither bound anyone. Some treaties provide in advance that an opinion requested under them shall be accepted as decisive, which turns the parties' agreement, and not the opinion, into the binding thing.

A worked example

State AA files an application against State BB alleging a breach of a bilateral treaty and asking for reparation. State BB has an optional clause declaration excluding disputes concerning matters which, in its own determination, fall within its domestic jurisdiction. State AA's declaration excludes disputes with neighbouring States. The treaty contains no compromissory clause. State AA also asks for provisional measures, and a specialized agency asks the Court whether the treaty is compatible with its own constitution.

Is there jurisdiction? Only if both States have consented. Article 36(2) operates in relation to any other state accepting the same obligation, so reciprocity lets State BB invoke State AA's own reservation. If they are neighbours, State AA's reservation defeats its own application.

State BB's self-judging reservation. A reservation excluding matters which the declaring State itself determines to be domestic is of doubtful validity, since article 36(6) gives the Court the power to settle any dispute as to jurisdiction, and a reservation that lets a party decide the question conflicts with it.

Provisional measures. Article 41 permits the Court to indicate measures to preserve the respective rights of either party if circumstances so require, with notice forthwith to the parties and to the Security Council, and the measures create legal obligations.

If State BB does not appear. Article 53 lets State AA call on the Court to decide in its favour, but the Court must still satisfy itself of jurisdiction and of the merits.

The judgment. Article 59: binding only between the parties and in respect of that particular case. Article 60: final and without appeal, subject to construction on request. Article 61: revision only on a decisive fact unknown to the Court and to the party, within six months of discovery and ten years of the judgment.

If State BB ignores the judgment. Article 94(2) of the Charter lets State AA go to the Security Council, which may make recommendations or decide upon measures. Whether it does is a political question and it is subject to the veto.

The specialized agency's question. Charter article 96(2) permits a request only if the agency has been authorised by the General Assembly, and only on a legal question arising within the scope of its activities. The resulting opinion binds nobody unless the agency's own rules provide that it shall be accepted as decisive.

Distinctions table

What it does NOT mean

The Court has no compulsory jurisdiction in the ordinary sense. The optional clause is optional, and reciprocity and reservations narrow it further.

Individuals cannot sue. Article 34(1) confines contentious cases to States.

Article 59 does not make the Court's decisions unimportant. It denies binding precedent, and article 38(1)(d) makes judicial decisions a subsidiary means.

Provisional measures are not mere suggestions. Measures indicated under article 41 create legal obligations.

Advisory opinions do not bind, unless an instrument provides that they shall be accepted as decisive.

There is no veto in electing judges. Article 10(2) removes the distinction between permanent and non-permanent members for that vote.

Non-appearance does not win the case for the applicant. Article 53 still requires the Court to be satisfied on jurisdiction and merits.

Limits and criticism

Consent limits the Court to the disputes States are willing to lose. The disputes that most threaten peace are the ones least likely to be submitted, and the optional clause has been narrowed by reservations to the point where it produces few cases.

Article 94(2) does not enforce. The Security Council may act and need not, and where a permanent member is involved it will not, so compliance rests on reputation and on the parties' own interest.

Only States may appear, which leaves individuals, peoples and organisations dependent on a State willing to espouse their claim, and leaves the Court out of the fields where international law now touches people most directly.

The judge ad hoc is difficult to reconcile with article 2's independent judges, and the practice of States nominating and electing their own nationals to a fifteen-seat bench that must represent the main forms of civilisation and the principal legal systems keeps the composition politically negotiated.

The Court is slow, contentious cases commonly taking years, which suits boundary and maritime disputes and suits nothing urgent, and the provisional measures power under article 41 carries a weight the Statute never designed it to bear.

Quick revision

Charter article 92: the principal judicial organ; the Statute forms an integral part of the Charter and is based on the Permanent Court's Statute. Article 93: Members are ipso facto parties. Article 94: Members undertake to comply; on failure the other party may go to the Security Council. Article 96: Assembly and Council on any legal question, other organs and authorised agencies within their activities.

Statute article 2: independent judges, high moral character, qualified for the highest judicial offices or jurisconsults of recognized competence. Article 3: fifteen, no two of the same nationality. Articles 4 to 6: nomination by national groups in the Permanent Court of Arbitration. Article 9: the bench as a whole to represent the main forms of civilization and the principal legal systems. Article 10: absolute majority in both Assembly and Council, no veto. Article 13: nine years, re-eligible, five seats every three years. Article 26: chambers. Article 31: judge ad hoc, sitting on terms of complete equality.

Article 34(1): only States may be parties. Article 35: open to parties to the Statute, others on conditions set by the Security Council, never in a position of inequality.

Article 36: jurisdiction by reference by the parties and by treaties and conventions in force; the optional clause covers interpretation of a treaty, any question of international law, the existence of a fact which would constitute a breach, and the nature or extent of reparation, made unconditionally, on reciprocity, or for a time; 36(6), the Court settles disputes about its own jurisdiction.

Article 41: provisional measures to preserve the parties' rights, notice forthwith to the parties and the Security Council. Article 53: non-appearance. Article 59: no binding force except between the parties and in respect of that particular case. Article 60: final and without appeal. Article 61: revision on a decisive fact, within six months of discovery, never after ten years.

Article 65: advisory opinions on any legal question at the request of an authorised body, by written request containing an exact statement of the question. Opinions do not bind.

Test yourself

1. How is the Court composed and how are its judges chosen?

Article 3(1) of the Statute provides for fifteen members, no two of whom may be nationals of the same State, and article 2 requires them to be independent judges of high moral character possessing the qualifications required in their own countries for appointment to the highest judicial offices, or jurisconsults of recognised competence in international law. Candidates are nominated not by governments but by the national groups in the Permanent Court of Arbitration, or by groups appointed for the purpose, each group nominating no more than four persons of whom not more than two may be of its own nationality. Election requires an absolute majority in both the General Assembly and the Security Council, and article 10(2) provides that the Council's vote is taken without any distinction between permanent and non-permanent members, so there is no veto. Article 9 requires the electors to secure that the body as a whole represents the main forms of civilisation and the principal legal systems of the world, and article 13(1) fixes a term of nine years with re-election permitted and five seats falling vacant every three years.

2. On what bases may the Court exercise contentious jurisdiction?

On consent, given in one of several forms. By special agreement, where the parties submit an existing dispute and define the questions, which falls within article 36(1) as a case the parties refer to the Court. By a compromissory clause in a treaty providing in advance for reference of disputes about that treaty, which falls within article 36(1) as a matter specially provided for in treaties and conventions in force. By declarations under the optional clause in article 36(2), recognising the jurisdiction as compulsory ipso facto and without special agreement in relation to any other State accepting the same obligation, in legal disputes concerning the interpretation of a treaty, any question of international law, the existence of a fact which if established would constitute a breach of an international obligation, or the nature or extent of the reparation for such a breach. And by forum prorogatum, where a respondent that had not consented accepts jurisdiction by its conduct. Article 36(6) leaves any dispute about jurisdiction to be settled by the Court itself.

3. Why has the optional clause produced fewer cases than its drafters hoped?

Because of reciprocity and reservations. Article 36(2) operates only in relation to another State accepting the same obligation, so a respondent may invoke the reservations contained in the applicant's declaration as though they were its own, and the narrower of the two declarations governs. Article 36(3) permits declarations to be made on condition of reciprocity or for a certain time, and in practice States attach wide reservations excluding disputes with named States, disputes arising from hostilities, matters of national security, and matters said to fall within domestic jurisdiction, sometimes as determined by the declaring State itself. The result is that only a minority of the parties to the Statute have declarations in force, and among the permanent members of the Security Council only the United Kingdom does.

4. Explain article 59 and its relationship with article 38(1)(d).

Article 59 provides that the decision of the Court has no binding force except between the parties and in respect of that particular case, which means there is no doctrine of binding precedent before the Court. Article 38(1)(d) is drafted to match: it directs the Court to apply judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law, and does so expressly subject to article 59. The two together establish that a prior judgment is evidence of what the law is rather than a source of law binding the Court. In practice the Court follows its own reasoning closely and departs from it rarely, so its decisions carry great authority, but that authority is persuasive and institutional rather than formally binding.

5. What happens if a State ignores a judgment?

Article 94(1) of the Charter binds each Member to comply with the decision of the Court in any case to which it is a party. Article 94(2) provides that if a party fails to perform the obligations incumbent upon it under a judgment, 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. The remedy is therefore discretionary and political: the Council need not act, and because a decision to act is substantive it is subject to the veto, so nothing can be done where the defaulting State is a permanent member or is protected by one. Compliance in practice rests on the parties' interest in the Court and on reputation rather than on article 94(2).

6. Distinguish contentious from advisory jurisdiction.

In contentious jurisdiction only States may be parties, by article 34(1), the Court's jurisdiction depends on their consent under article 36, and the outcome is a judgment which by article 59 binds the parties in that case and by article 60 is final and without appeal, with the enforcement machinery of Charter article 94(2) behind it. In advisory jurisdiction no State may make a request at all: by Charter article 96 the General Assembly and the Security Council may request an opinion on any legal question, and other organs and specialized agencies may do so when authorised by the Assembly and only on legal questions arising within the scope of their activities. Article 65(1) of the Statute makes the giving of an opinion discretionary, and the opinion binds nobody, though its authority may be very great and an instrument may separately provide that an opinion requested under it shall be accepted as decisive.