Comment: International Court of Justice. (1991, 2006, 20 Marks)
The International Court of Justice (ICJ) is the judicial arm of the United Nations and the only principal organ able to issue a binding ruling against a sovereign state, yet it cannot open a case on its own. It is the third stage of a long project: arbitration (the Jay Treaty of 1794, the Alabama Claims of 1872), the Hague Permanent Court of Arbitration (1899), and the League’s Permanent Court of International Justice (1922–46), whose Statute it inherited at San Francisco.
Design: a court built on consent
- Fifteen judges elected by the General Assembly and Security Council without the veto; nine-year staggered terms; Article 9 asks the bench to mirror the world’s principal legal systems.
- Only states may be parties (Article 34). Jurisdiction rests on special agreement, treaty clauses, the optional clause of Article 36(2), or later consent.
- It is not a constitutional court of the UN: in Namibia (1971) it disclaimed judicial review, and in Lockerbie (1992) it would not shield Libya from Council resolutions. Nor is it the International Criminal Court, which tries individuals under the Rome Statute.
Contribution
- Settling disputes: boundary and maritime cases dominate its docket, and compliance there is near-complete, as with Nigeria’s transfer of Bakassi after 2002.
- Stating the law: under Article 38 it turns diffuse practice into rules.
| Case | What it established |
|---|---|
| Reparation for Injuries (1949) | Legal personality of the UN |
| Barcelona Traction (1970) | Obligations erga omnes |
| Nicaragua (1986) | Non-intervention and the “effective control” test |
| LaGrand (2001) | Provisional measures bind |
| Chagos (2019) | Decolonisation of Mauritius incomplete |
- Advisory jurisdiction as diplomacy: coalitions unable to sue now go through the Assembly. The unanimous climate opinion of July 2025, initiated by Vanuatu, held that climate obligations arise under custom as well as treaty and are owed erga omnes.
- India: it won on substance in Right of Passage (1960), escaped Pakistan’s suit in Aerial Incident (2000) through its reservations, and won Jadhav (2019) on consular access. Having fielded no candidate in 2026, it will have no judge on the bench from February 2027.
Limits
- Consent: only 75 states accept the optional clause, and among permanent members only the UK. Hersch Lauterpacht argued that self-judging reservations destroy the declarations containing them.
- Enforcement: Article 94(2) routes non-compliance to a vetoed Council; it has never been used successfully, and the United States vetoed enforcement of Nicaragua.
- Selectivity and delay: provisional measures against Russia (2022) and Myanmar were defied, and Israel’s rejoinder in South Africa v. Israel is not due until May 2029.
- Fragmentation: ITLOS, arbitration and the ICC compete, and the ICTY’s “overall control” test in Tadić departed from the Court’s own.
Perspectives
For realists such as Hans J. Morgenthau the Court records settlements power has already accepted. H. L. A. Hart answered John Austin’s charge that law without a sovereign is mere morality: international law works as law even without central enforcement. Liberal institutionalists see the Court lowering the cost of settlement. R. P. Anand traced Afro-Asian distrust to a law made without the new states and to the South West Africa casting vote of 1966, and saw Nicaragua restore faith in the Court’s independence.
Conclusion
The ICJ is neither the world court its founders imagined nor an ornament. Busier than ever at its eightieth anniversary in April 2026, it shows states treating law as an instrument of diplomacy. It settles what states are willing to settle and states the law for everyone, but stays powerless exactly where power is the issue; wider acceptance of compulsory jurisdiction, not Charter amendment, is the reform that would matter.