The Limitations of the International Court of Justice
FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the Internet.
The world is becoming a much smaller place given international transportation, multinational corporations, and Internet communications that know no geographic boundaries. With more frequent and heightened dealings with people across the globe, there necessarily are increased international disputes that require resolution.
So, one might think that there is a global court in place to deal with such disputes, right? We do have the International Court of Justice (aka the World Court or the ICJ). But can the World Court get the job done in terms of resolving the vast majority of international disputes?
Unfortunately, the answer is a resounding "no."
The ICJ is the main judicial branch of the United Nations, based in The Hague, Netherlands, and was established in 1945. The ICJ is made up of 15 judges. Each of these judges is elected to nine-year terms by the UN General Assembly and the UN Security Council. Elections are staggered with five judges elected every three years. There cannot be more than one judge from a given country on the court.
While not written in stone, it is understood that five judges will come from Western countries, three from African states, two from Eastern European states, three from Asian states, and two from Latin American and Caribbean states. The five permanent members of the UN Security Council always have one judge on the World Court. This means that the United States, Russia, China, the United Kingdom, and France always have a judge on the court (except when China did not submit a candidate from 1967 to 1985).
The ICJ can hear adversarial proceedings (referred to as "contentious cases") seeking to resolve active disputes (and the court can render certain, non-binding advisory opinions). But only states can be parties to contentious cases. This means that a tremendous number of disputes involving individuals, corporations, parts of states, NGOs, self-determination groups, and even UN bodies are beyond the purview of the World Court.
And even when it comes to states, the ICJ only has jurisdiction based on consent, not compulsory jurisdiction. Thus, if there is a dispute between two states, and one of the states has not consented to World Court jurisdiction by treaty, by specific agreement once the dispute has arisen, or by some other declaration, the ICJ cannot hear the case.
Not surprisingly, the World Court has had a relatively light caseload since it was created back in 1945. And without an overarching court to handle the massive number of international disputes, parties must bring their cases for resolution to domestic courts within states, or certain regional or specialty courts.
Thus, do not let the name "International Court of Justice" fool you. It is the rare international dispute that ultimately finds resolution by this judicial body.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at firstname.lastname@example.org with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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