Significant cases: How the World Court has maintained International Peace
The United Nations is an organisation with international law as its cornerstone, by signing the UN charter, member states commit themselves to a firm set of legal commitments laid out in the UN charter. Additionally, member states are invited to sign a range of conventions and legal regimes which include everything from maritime regulations like the UN Convention of the Sea and human rights like the Convention on the Prevention and Punishment of the Crime of Genocide. International law is defined as "the body of legal rules which applies between sovereign states and to other entities possessing international personality". According to the International Court of Justice, each of these subjects of international law is an entity "capable of possessing international rights and duties, and which has the capacity to maintain its rights by bringing international claims". The ICJ therefore has, for most of its history, undoubtedly played an essential part in maintaining and upholding international law.
The World Court is the father of the family of international judicial bodies created in the past decade. Over the last 50 years, the Court has dealt with a variety of legal issues. Its judgements have covered disputes concerning the sovereignty of islands, navigational rights of states, nationality, asylum, expropriation, the law of the sea, land and maritime boundaries, the enunciation of the principle of good faith, equity and legitimacy of the use of force and has played an important role in the progressive development and codification of international law. The ICJ is the successor to the Permanent Court of International Justice (of the League of Nations). The statute of the international court of justice, an important annexe of the UN Charter, is the main constitutional document defining and regulating the nature and work of the ICJ. The court, seated at the Peace Palace in the Hague, Netherlands, is composed of 15 judges who are elected for terms of office of nine years by the UN General Assembly and the Security Council. The court's role is to settle, in accordance with international law, legal disputes submitted to it by member states and to give advisory opinions on legal questions referred to it by authorised UN organs and specialised agencies.
It is important to note that the Advisory Opinions are advisory and have no binding effect, unlike the Court's judgements. The requesting organ or agency can choose to give effect to the opinion (or not) unless the opinion is sanctioned by international law, or in cases when certain regulations are provided beforehand. Nonetheless, the authority and prestige of the court are attached to its advisory opinions. The ICJ's opinions can contribute to the development and codification of International law.
The ICJ has dealt with a multitude of cases but one of the more significant ones was the ICJ advisory Proceedings on the "Legality of threat or use of nuclear weapons" (1995-1996). The issue regarding the legality of nuclear weapons dates back to 1950 when the Dutch raised to the International Law Commission the possibility of outlawing the use of nuclear weapons in armed conflict. Likewise, the Polish government also requested the ILC to regard the use of nuclear weapons as a crime against the peace of mankind, but the issue became sidelined due to Cold War tensions. In December 1994, the UN General Assembly adopted a resolution and submitted it to the court, asking the ICJ urgently to render its opinion on the following question: Is the threat or use of nuclear weapons in any circumstances permitted under international law?
On 8 July 1996, the ICJ rendered its opinion. On the threat and use of nuclear weapons, the ICJ noted while there was no customary or conventional law authorising it, there was also none that comprehensively and universally prohibited it. Yet, it pointed out that a threat or use of force by means of nuclear weapons is unlawful as it runs contrary to article 2, paragraph 4, of the United Nations charter and fails to meet all the requirements of Article 51. It was also generally contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.
However, due to a significant split decision among the judges ( with USA, Japan, UK, France, Guyana, Sri Lanka and Sierra Leone voting against), the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of the state would be at stake. Yet, the ICJ's Opinion did make clear that the world's states have a binding duty to negotiate in good faith and to accomplish nuclear disarmament. In that sense, the ICJ's advisory opinion proved significant in reinforcing the norms of international humanitarian law and in strengthening the rules governing the use of force.
This was critical for safeguarding international peace and security because the court's advisory opinion became an important reference point for nuclear weapons discourse and bolstered arguments calling for the gradual delegitimisation of and eventual ban on nuclear weapons.
A similarly politically significant case took place just 5 years earlier in 1991 regarding military and paramilitary activities in and against Nicaragua by the USA. Against the backdrop of the new Cold War, this case was politically important - a small Central American state brought a case against a superpower and the ICJ ruled in the latter's favour. Following the case, the USA demonstrated contempt of the world court, refused to recognise its jurisdiction halfway through proceedings and even vetoed a security council resolution urging full compliance with the ICJ's ruling demanding an end to US support for anti-communist rebels.
The USA was charged to have violated international law and Nicaraguan sovereignty by supporting the Contras, a rebel group against the Sandinista government in Nicaragua. The CIA was allegedly funding, training and directing the contras' operations. Nicaragua demanded a stop to these activities and reparations. In its defence, the USA contended that its actions against Nicaragua were a form of collective self-defence with its ally el-Salvador, which was facing armed attacks and incursions by the Sandinistas into its territory. It alleged that Nicaragua was supplying arms to the El Salvadorian rebels. Furthermore, the USA claimed that the CIA was merely moderating the Contras, who had already been involved in anti-Sandinista actions earlier. Notably, the US argued that Nicaragua.s application for the case to be heard was inadmissible and also challenged the jurisdiction of the ICJ to hear the case. In response to that on 26 Nov 1984, the court found that it had the jurisdiction to hear the case and that the USA, as a subject of international law, should comply with its rulings. The USA refused to participate in the proceedings right after the court rejected its argument that it lacked the jurisdiction to hear the case. In 1985, it withdrew its consent to compulsory jurisdiction by the court, despite having signed the UN charter.
After a lengthy and difficult discussion, the court issued a judgement with 291 points on 27 June 1986. The judgement was not unanimous as unsurprisingly, three from UK, USA and Japan did not agree with all the rulings. The court ascertained that in the USA's actions in Nicaragua, it was guilty of the 'unlawful use of force against another state and should cease its actions and pay reparations to Nicaragua which the USA refused. However, the court could not conclude that the contras were dependent on and controlled by the CIA. Nicaragua was also found to be guilty of supplying arms to the rebels in El Salvador but its incursions into El Salvador's territory was not deemed as attacks. The USA's argument of collective self-defence with El Salvador was therefore rejected.
Although the USA consistently refused to recognise the ICJ's jurisdiction or comply with its rulings, this case was nevertheless important in that it showed the impartiality and fairness of the court which in the following years encouraged more and more states small and large to bring their various conflicts to the court for a solution.
Since the entry of its first case on 22 May 1947, the ICJ has entertained 178 cases up till this date, some significant, some not as much. In its quest to safeguard international law and maintain international peace and security, the ICJ has been empowered by the UN Charter, the ICJ statute, multiple sources of international law and the support of the international community. Nonetheless, it is important to note that the world court is not alone in its efforts to safeguard international law, other organs of the United Nations, other legal regimes and judicial bodies both within and outside the UN system could also support and complement the work of the ICJ. UN Secretary-General Boutros-Ghali wrote in the agenda for peace that should more states turn to the ICJ to resolve their conflicts, there would be more peace in the world and he was undoubtedly right.