The International Court of Justice
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The organisation of the Court
The jurisdiction of the Court
The role of the Court
Proliferation of courts and tribunals
• The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations (UN). It was established in June 1945 by the Charter of the United Nations
and began work in April 1946.
• The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York
(United States of America).
• The Court’s role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred
to it by authorized United Nations organs and specialized agencies.
• The Court is composed of 15 judges, who are elected for terms of office of nine
years by the United Nations General Assembly and the Security Council. It is
assisted by a Registry, its administrative organ. Its official languages are English and
French.
• The organisation of the Court
• The International Court of Justice is composed of 15 judges elected to nineyear terms of office by the United Nations General Assembly and the
Security Council. These organs vote simultaneously but separately. In order
to be elected, a candidate must receive an absolute majority of the votes in
both bodies. This sometimes makes it necessary for a number of rounds of
voting to be carried out.
• In order to ensure a measure of continuity, one third of the Court is elected
every three years. Judges are eligible for re-election. Should a judge die or
resign during his or her term of office, a special election is held as soon as
possible to choose a judge to fill the unexpired part of the term.
• Elections are held in New York (United States of America) on the occasion
of the annual autumn session of the General Assembly. The judges elected
at a triennial election enter upon their term of office on 6 February of the
following year, after which the Court proceeds to elect by secret ballot a
President and a Vice-President to hold office for three years.
• All States parties to the Statute of the Court have the right to propose
candidates. In the case of countries not represented on the Permanent Court
of Arbitration, nominations are made by a group constituted in the same
way. Each group can propose up to four candidates, not more than two of
whom may be of its own nationality, whilst the others may be from any
country whatsoever, whether a party to the Statute or not and whether or not
it has declared that it accepts the compulsory jurisdiction of the ICJ. The
names of candidates must be communicated to the Secretary-General of the
United Nations within a time-limit laid down by him/her.
• Judges must be elected from among persons of high moral character, who
possess the qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults of recognized
competence in international law.
• The Court may not include more than one national of the same
State. Moreover, the Court as a whole must represent the main forms of
civilization and the principal legal systems of the world.
• In practice this principle has found expression in the distribution of
membership of the Court among the principal regions of the globe. Today
this distribution is as follows: Africa 3, Latin America and the Caribbean 2,
Asia 3, Western Europe and other States 5, Eastern Europe 2, which
corresponds to that of membership of the Security Council. Although there
is no entitlement to membership on the part of any country, the Court has
always included judges of the nationality of the permanent members of the
Security Council.
• Once elected, a Member of the Court is a delegate neither of the government
of his own country nor of that of any other State. Unlike most other organs
of international organizations, the Court is not composed of representatives
of governments. Members of the Court are independent judges whose first
task, before taking up their duties, is to make a solemn declaration in open
court that they will exercise their powers impartially and conscientiously.
• No Member of the Court may engage in any other occupation during his/her
term. He/she is not allowed to exercise any political or administrative
function, nor to act as agent, counsel or advocate in any case. Any doubts
with regard to this question are settled by decision of the Court.
• 国际法院中国籍法官 Judge Xue Hanqin
• Born in Shanghai, China, on 15 September 1955.
• B.A., Beijing Foreign Language Studies University (1980); Diploma of International
law, Beijing University, Department of Law (1982); LL.M., Columbia University
School of Law (1983); J.S.D., Columbia University School of Law (1995).
• Member, Institut de droit international (since 2009). President, Asian Society of
International Law. Member of the Curatorium of the Hague Academy of
International Law (since 2010).
• Entered the Foreign Ministry of China (1980).
• Deputy Director-General, Department of Treaty and Law, Ministry of Foreign
Affairs (1994-1999).
• Director-General, Department of Treaty and Law, Ministry of Foreign Affairs (19992003).
• Ambassador of China to the Kingdom of the Netherlands, and Permanent
Representative of China to the Organization for the Prohibition of Chemical
Weapons (2003-2008).
• Ambassador to ASEAN, Legal Counsel of the Ministry, Ministry of Foreign Affairs
of China (2008-2010).
• Member of the International Law Commission (elected in 2001 and re-elected in
2006 by the United Nations General Assembly for the term 2007-2011).
• Chairman of the International Law Commission (2010).
• 联合国国际法院首位中国籍院长史久镛 Shi Jiuyong
• 1926年出生于浙江宁波，早年先后在上海圣约翰大学和美国哥伦比亚大学攻
读法律。1980年以来，史久镛在众多国际会议与国际组织中担任过中国政府
的法律代表或顾问，并曾参与过中英关于香港问题的谈判。
• 著名国际法学家。1926年10月9日出生于浙江宁波。 1948年上海圣约翰大学
政治系毕业，获学士学位。1951年获美国哥伦比亚大学研究院国际法硕士学
位。1951－1954年在哥伦比亚大学研究院进行国际法学研究。1956－1958年
在国际关系研究所任助理研究员。1958－1964年在外交学院讲授国际法，先
后任讲师、副教授。1964－1973年在国际法研究所任研究员。1973－1980年
在国际问题研究所任国际法研究员。1980－1993年起任外交部法律顾问。
• Member of the Court since 6 February 1994;
• re-elected as from 6 February 2003; Vice-President of the Court from 2000 to 2003;
• President of the Court from 6 February 2003 until 6 February 2006
• 国际法院历任中国籍法官
• 王宠惠：1921-1939年任常设国际法院(国际法院的前身)法官，曾任中华民国
政府外交部长、北洋政府司法部长。
• 王宠惠（1881——1958）, 字亮畴，广东东莞人。1881年生于香港。1895年
考取北洋西学学堂，攻读法科法律学门，1899年以最优成绩毕业，获得中国
近代第一张毕业文凭（钦字第壹号）。
• 王宠惠1901年赴日留学，致力于法律问题的研究。1904年赴美留学，先入加
州大学，后入耶鲁大学获法学博士，旋即赴英国继续研究国际公法，并获得
英国律师资格。在美求学其间既与孙中山交往甚密，深受孙中山民主革命思
想影响，1904年孙中山发表的英文对外宣言即是出自其手。1905年同盟会成
立，王宠惠立即加入。辛亥革命成功后先是被推为副议长，后于1912年1月3
日经孙中山提名，王宠惠被任命为南京临时政府外交总长，曾在唐绍仪内阁
任数月的司法部 总长，1913年出任复旦大学副校长，1916年被任命为军务院
外交副使，1920年应北京政府之命任大理院院长；1922年9月任北京内阁总理；
1922年11月辞职。1923年国际联盟选王宠惠为海牙常设国际法庭正法官；
1928年任南京国民政府司法院院长。抗日战争其间，历任南京政府外交部长、
国防最高委员会秘书长；1947年夏任司法院院长；1958年在台北逝世。
• 郑天锡：1916年获伦敦大学法学博士学位，论文《国际私法中关于确定契约
能力的法规》(The Rules of International Law Determining Capacity to Contract) 。
1939-1946年任常设国际法院法官，曾任北洋政府司法部次长。
• 徐谟：1920年4月，被派往驻美使馆见习，并在华盛顿大学就读，获法学硕士
学位。1945年4月，赴华盛顿出席联合国法律专家委员会，参加起草国际法庭
章则，并任旧金山联合国组织会议中国代表团顾问。1946-1957年任国际法院
法官，曾任国民党政府“外交部次长”。
• 顾维钧：1904年入美国哥伦比亚大学，专攻国际法及外交，获博士学位。
1912年回国后，任总统秘书、内阁秘书、外务部顾问和宪法起草委员等职。
1915年起历任北洋政府驻墨西哥、美国、古巴、英国公使。1919和1921年作
为中国代表团成员出席巴黎和会和华硕的会议。在巴黎和会上，就山东的主
权问题据理力争，以出色的辩论才能阐述中国对山东有不容争辩的主权，为
维护中华民族的权益作出了贡献。1957-1967年任国际法院法官，曾任国民党
政府“外交部长”和“国务总理”。
• 倪征燠(音YU)：1928年，上海东吴大学毕业，获法学士学位。1929年，获美
国斯坦福大学法学博士学位。1946年－1948年，第二次世界大战后参加东京
远东国际军事法庭对日本战犯的审判工作，对土肥原贤二、板垣征四郎、松
井石根等甲级战犯提出了控诉。1985-1994年任国际法院法官，为新中国第一
位国际法院法官。
• The jurisdiction of the Court
• ICJ is a judicial institution that decides cases on the basis of international law as it
exists at the date of the decision. It cannot formally create law as it is not a
legislative organ.
• It was noted that when choosing between various grounds upon which to accept or
reject jurisdiction, there were three criteria to guide the Court. These were,
• first, consistency with previous case-law in order to provide predictability as
‘consistency is the essence of judicial reasoning’;
• secondly, certitude, whereby the Court should choose the ground most secure in
• law, and,
• thirdly, as the principal judicial organ of the United Nations, the Court should be
‘mindful of the possible implications and consequences for the other pending
cases’.
• Nevertheless, political factors cannot but be entwined with questions of law.
• The jurisdiction of the International Court falls into two distinct parts: its capacity
to decide disputes between states, and its capacity to give advisory opinions when
requested so to do by particular qualified entities.
• The nature of a legal dispute
• Article 36(2) of the Statute of the Court requires that a matter brought before it
should be a legal dispute.
• Mavrommatis Palestine Concessions (Jurisdiction) case
• The Court declared that a dispute could be regarded as ‘a disagreement over a
point of law or fact, a conflict of legal views or of interests between two persons’. It
is to be distinguished from a situation which might lead to international friction or
give rise to a dispute.
• Interpretation of Peace Treaties case
• The Court noted that ‘whether there exists an international dispute is a matter for
objective determination’ and pointed out that in the instant case ‘the two sides
hold clearly opposite views concerning the question of the performance or the
non-performance of certain treaty obligations’ so that ‘international disputes have
arisen’. A mere assertion is not sufficient; it must be shown that the claim of one
party is positively opposed by the other.
• Applicability of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement (advisory opinion)
• The Court noted that the consistent challenge by the UN Secretary-General to the
decisions contemplated and then taken by the US Congress and Administration
with regard to the closing of the PLO offices in the US (which of necessity included
the PLO Mission to the United Nations in New York) demonstrated the existence of
a dispute between the US and the UN relating to the Headquarters Agreement.
• Application of the Genocide Convention (Bosniaand Herzegovina v. Yugoslavia) case
• The Court stated that ‘by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia-Herzegovina, “there is a legal dispute” between
them’. Such denial of the allegations made against Yugoslavia had occurred
‘whether at the stage of proceedings relating to the requests for the indication of
provisional measures, or at the stage of the present proceedings relating to those
objections’.
• In other words, in order for a matter to constitute a legal dispute, it is sufficient for
the respondent to an application before the Court merely to deny the allegations
made even if the jurisdiction of the Court is challenged.
• While it is for the parties to put forward their views, and particularly
for the applicant, in its application, to present to the Court the
dispute with which it wishes to seize the Court, it is for the Court
itself to determine the subject-matter of the dispute before it. This
will be done by taking into account not only the submission but the
application as a whole, the arguments of the applicant before the
Court and other documents referred to, including the public
statements of the applicant.
• In all events, the determination on an objective basis of the existence
of a dispute is for the Court itself. It is also clear that the exhaustion
of diplomatic negotiations is not a prerequisite to going to the Court.
• Contentious jurisdiction
• the question as to the establishment of jurisdiction is a matter for the Court itself
• the issue of jurisdiction is a question of law to be resolved by the Court in the light
of the relevant facts.
• jurisdiction must be determined at the time that the act instituting proceedings
was filed, so that if the Court had jurisdiction at that date, it will continue to have
jurisdiction irrespective of subsequent events.
• where jurisdiction exists over a dispute on a particular matter, no separate basis for
jurisdiction is required in order to consider the question of remedies.
• The Court has freedom to select the ground upon which it will base its judgment
and when its jurisdiction is challenged on diverse grounds, it is free to base its
decision on one or more grounds of its own choosing, in particular ‘the ground
which in its judgment is more direct and conclusive’.
• Once the Court has reached a decision on jurisdiction, that decision assumes the
character of res judicata, that is it becomes final and binding upon the parties.
• Article 34 of the Statute of the Court declares that only states may be parties in
cases before the Court. This is of far-reaching importance since it prohibits
recourse to the Court by private persons and international organisations, save in so
far as some of the latter may be able to obtain advisory opinions.
• The Court is open to all states that are parties to the Statute. Article 93 of the UN
Charter provides that all UN members are ipso facto parties to the Statute of the ICJ,
and that non-members of the UN may become a party to the Statute on conditions
determined by the General Assembly upon the recommendation of the Security
Council.
• The Security Council has in fact resolved that access to the ICJ for a state not party
to the Statute is possible provided that such state has previously deposited with
the registrar of the Court a declaration (either general or particular) accepting the
jurisdiction of the Court and undertaking to comply in good faith with the decision
or decisions of the Court.
• West Germany filed a general declaration with the ICJ on this basis before it joined
the UN (The North Sea Continental Shelf case).
• There are three ways in which the Court may dispose of a preliminary objection to
jurisdiction. It may uphold the challenge, reject the challenge or declare that the
objection does not possess, in the circumstances of the case, an exclusively
preliminary character, in which case the matter will be dealt with together with a
consideration of the merits.
• Article 36(1)
• The Court has jurisdiction under article 36(1) of its Statute in all cases
referred to it by parties, and regarding all matters specially provided
for in the UN Charter or in treaties or conventions in force.
• The jurisdiction of the Court is founded upon the consent of the
parties, which need not be in any particular form and in certain
circumstances the Court will infer it from the conduct of the parties.
• Consent has to be clearly present, if sometimes inferred, and not
merely a technical creation. The Court has emphasised that such
consent has to be ‘voluntary and indisputable’.
• It is a well-established principle that the Court will only exercise
jurisdiction over a state with its consent and it cannot decide upon
legal rights of third states not parties to the proceedings.
• Qatar v. Bahrain
• The issue centred upon minutes of a meeting signed by the Foreign
Ministers of both states (the Doha Minutes) in December 1990. The
status of such Minutes was controverted, but the Court held that
they constituted an agreement under international law.
• There was also disagreement over the substance of the Minutes and
thus the subject matter of the dispute to be placed before the Court.
Bahrain defined the issue as including the question of ‘sovereignty’
over Zubarah, while Qatar merely accepted that that was how
Bahrain characterised the issue.
• The Court concluded that this was sufficient to lay the whole dispute,
including this element, before it. Questions do therefore remain with
regard to the extent of the consensual principle after this decision.
• Article 36(2)
• Article 36(2), the so-called ‘optional clause’, stipulates that:
• The states parties to the present Statute may at any time declare that
they recognise 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 the breach
of an international obligation.
• This provision was intended to operate as a method of increasing the Court’s
jurisdiction, by the gradual increase in its acceptance by more and more states.
• Cameroon v.Nigeria (Preliminary Objections) case
• Any state party to the Statute, in adhering to the jurisdiction of the Court in
accordance with article 36, paragraph 2, accepts jurisdiction in its relations with
states previously having adhered to that clause. At the same time, it makes a
standing offer to the other states parties to the Statute which have not yet
deposited a declaration of acceptance. The day one of those states accepts that
offer by depositing in its turn its declaration of acceptance, the consensual bond is
established and no further condition needs to be met.
• Declarations pursuant to article 36(2) are in the majority of cases conditional and,
as noted, are dependent upon reciprocity for operation. This means that the Court
will only have jurisdiction under article 36(2) to the extent that both the
declarations of the two parties in dispute cover the same issue or issues.
• The reservations that have been made in declarations by states under the optional
clause, restricting the jurisdiction of the ICJ, vary a great deal from state to state,
and are usually an attempt to prevent the Court becoming involved in a dispute
which is felt to concern vital interests.
• A state may withdraw or modify its declaration.
• Sources of law, propriety and legal interest
• Article 38
• 1. The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
• a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
• b. international custom, as evidence of a general practice accepted as law;
• c. the general principles of law recognized by civilized nations;
• d. subject to the provisions of Article 59, 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.
• 2. This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto.
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Evidence
Provisional measures
Counter-claims
Third-party intervention
• There is no general right of intervention in cases before the Court by third
parties as such, nor any procedure for joinder of new parties by the Court
itself, nor any power by which the Court can direct that third states be
made a party to proceedings.
• However, under article 62 of the Statute of the ICJ, any state which
considers that it has an interest of a legal nature which may be affected by
the decision in a case, may submit a request to be permitted to intervene,
while under article 63, where the construction of a convention to which
states other than those concerned in the case are parties is in question, the
Registrar of the Court shall notify all such states forthwith. Every state so
notified has the right to intervene in the proceedings.
• The Court may permit an intervention by a third party even though it be
opposed by one or both of the parties to the case.
• In the Nuclear Tests case, Fiji sought to intervene in the dispute
between France on the one hand and New Zealand and Australia on
the other, but the Court postponed consideration of this and, after its
judgment that the issue was moot, it was clearly unnecessary to take
any further steps regarding Fiji.
• Malta sought to intervene in the Tunisia/Libya Continental Shelf case
in the light of its shelf delimitation dispute with Libya in order to
submit its views to the Court. The Court felt that the real purpose of
Malta’s intervention was unclear and did not relate to any legal
interest of its own directly in issue as between Tunisia and Libya in
the proceedings or as between itself and either one of those
countries. While Malta did have an interest similar to other states in
the area in the case in question, the Court said that in order to
intervene under article 62 it had to have an interest of a legal nature
which might be affected by the Court’s decision in the instant case.
• The delimitation line indicated by the Court is made up of two segments: the first
segment of the line starts from the outer limit of the Parties' territorial sea, at the
intersection of that limit with a straight line constructed from the frontier point of
Ras Ajdir at a bearing approximately 26° east of north; it continues at the same
bearing until it meets the latitude of the most westerly point of the Gulf of Gabes,
approximately 34° 10' 30" N. There begins the second segment, which is inclined
farther to the east at a bearing of 52°.
• Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)
• The Court held unanimously that Nicaragua had demonstrated that it
had an interest of a legal nature which might be affected by part of
the judgment of the Chamber on the merits of the case. The
intervening state does not need to demonstrate a basis of jurisdiction,
since the competence of the Court is here not founded upon the
consent of the parties as such but is rather derived from the consent
given by the parties in becoming parties to the Court’s Statute to the
Court’s exercise of its powers conferred by the Statute. The purpose
of intervention, was to protect a state’s ‘interest of a legal nature’
that might be affected by a decision in an existing case already
established between other states, the parties to the case, and not to
enable a third state to ‘tack on a new case’.
• Enforcement
• The judgment of the Court under article 60 is final and without
appeal. Although it has no binding force except between the parties
and in respect of the particular case under article 59, such decisions
are often very influential in the evolution of new rules of
international law.
• Under article 94 of the UN Charter, each member state undertakes to
comply with the decision of the Court in any case to which it is a
party and if this does not occur, the other party may have recourse to
the Security Council which may make recommendations or take
binding decisions.
• Since the 1990s the record of compliance has been generally good.
• Application for revision of a judgment
• Examination of a situation after the judgment
• The advisory jurisdiction of the Court
• 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 of the
United Nations to make such a request.
• 2. Questions upon which the advisory opinion of the Court is asked shall be laid
before the Court by means of a written request containing an exact statement of
the question upon which an opinion is required, and accompanied by all
documents likely to throw light upon the question.
• Unlike contentious cases, the purpose of the Court’s advisory jurisdiction is not to
settle, at least directly or as such, inter-state disputes, but rather to ‘offer legal
advice to the organs and institutions requesting the opinion’.
• International Court of Justice advisory opinion on Kosovo's
declaration of independence
• Accordance with International Law of the Unilateral Declaration of Independence
In Respect of Kosovo was a request for an advisory opinion referred to the ICJ by
the UN General Assembly regarding the 2008 Unilateral declaration of
independence of Kosovo. The territory of Kosovo is the subject of a dispute
between Serbia and the Republic of Kosovo established by the declaration. This
was the first case regarding a unilateral declaration of independence of Kosovo to
be brought before the court.
• The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it
declared that "the declaration of independence of the 17 February 2008 did not
violate general international law because international law contains no 'prohibition
on declarations of independence'.”There were many reactions to the decision, with
most countries that already recognise Kosovo hailing the decision and saying it was
"unique" and does not set a precedent; while most countries that do not recognise
Kosovo said they would not be doing so as the ruling could set a precedent of
endorsing secession in other places.
• The role of the Court
• The decisions and advisory opinions of the ICJ (and PCIJ before it) have played a
vital part in the evolution of international law.
• Proliferation of courts and tribunals
• The proliferation of judicial organs on the international and regional level has been
one characteristic of recent decades.
• The European Court of Justice, the European Court of Human Rights, the new
African Court of Human Rights and the Inter-American Court of Human Rights have
been joined by the two Tribunals examining war crimes in Bosnia and Rwanda and
by the new International Criminal Court.
• In addition, the International Tribunal for the Law of the Sea is in operation and a
variety of other relevant mechanisms have arisen, ranging from the World Trade
Organisation’s Dispute Settlement provisions creating an Appellate Body to
administrative tribunals and economic courts.
• Again, the work of arbitration tribunals, whether established to hear one case or a
series of similar cases, is of direct relevance.
• Of course, many of the other tribunals concern disputes between individuals and
states rather than inter-state disputes and those in specialist areas, such as human
rights, investment problems or employment issues.