An introduction to the International Courts and Tribunals in The Hague by Larissa van den Herik, Cecily Rose & Yannick Radi
Professors of Public International Law,
Leiden Law School.
There is no doubt that the International Court of Justice (ICJ) has always played an important role in the world, I am going to explain the history and former organisations, which were the pathfinder of the contemporary institution. It should be explained how the ICJ is working and who is working. The duties, functions and the international importance of the Court, plus the reasons why world politics need that kind of International Court. Further, I will be explained the most important Conventions, rules, and Conferences, which build up the ICJ in its present-day.
There are some important research questions, which are the main issues of the essay:
What is the importance or the meaning of International Court of Justice?
Most of the time the organisation is mentioned as an institution with judicial arbitration in case of national disputes. It is standing over all states and has a very strong arbitration. The states are not able to appeal against the ICJ’s decisions or convictions, what caused the second research question:
How the International Court of Justice does achieve these convictions?
Who is the judge or who are the judges of the International Court of Justice?
This is the question of the formation of the Court. Questions b) and c) have their focus on the inner-organizations of the Court and I want to find out, why the Court acts in certain cases in disputes and what are their concerns and requests to mediate a dispute.
History of International Courts and Tribunals in The Hague:
• All began with the Jay Treaty of 1794, also called the Treaty of Amity, Commerce and Navigation, between the United States of America and Great Britain. It was made out of three mixed commissions with American and British nationals and they had to work as tribunals.
• The second more important phase was marked by the Alabama Claims arbitration in 1872 again between the United States and Great Britain. In the Treaty of Washington, the same parties arranged a sort of neutrality and fixed some important conditions for arbitration. They tried to avoid the treaties conflicts between the states and they created a proposal for a permanent international arbitral tribunal.
• The third phase was marked by The Hague Peace Conference in 1899 which got initiated by the Russians (Czar Nicholas II). The phase was part of modern international arbitration. The main concern of the conference was discussing peace and disarmament. It got finished with the Convention on the Pacific Settlement of International Disputes (between Asian, American and Europe countries). Out of the Convention, the Permanent Court of Arbitration got formed. A panel of jurists (from each country) administered the Permanent Court and also a leading office, located at The Hague, got set up. The Court got institutionalised and was generally accepted. The official establishment was in 1900 and the operating began in 1902.
In 1907, the second Hague Peace Conference started and also States of Central and South America participated. At this conference, some participants (United States, Germany, and Great Britain) tried to form a Permanent Court of Justice, but not all participants agreed with that. The problem was how and who had to choose the judges.
The Permanent Court of International Justice (PCIJ):
“Article 14 of the Covenant of the League of Nations gave the Council of the League responsibility for formulating plans for the establishment of a Permanent Court of International Justice (PCIJ), such a court to be competent not only to hear and determine any dispute of an international character submitted to it by the parties to the dispute but also to give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.”
In 1920, the Council engaged an Advisory Committee of Jurists to present a report if the establishment of the PCIJ, they sat in The Hague under Baron Decamps (Belgium). After the report, the First Assembly of the League of Nations opened in Geneva at the end of 1920. In this case, the legal frame of the PCIJ got fixed and realised. Every member country had a vote in case of decisions and elections. The first elections took place in September 1921. After the first Assembly, more of them took place in 1921, 1929 and finally in 1936 the Statute and legal frame of the PCIJ became effective and operative.
The PCIJ had after the long road of formation and development some differences to the former Court of Arbitration. First, it got a permanently governed body and had an own Statute and Rules of Procedure. Second it had a permanent Registry which stayed always in touch with governments and international organisations. Third the proceeding was public and got documented evidence. It also had a permanent tribunal; what offered a constant practice with international law and bodies. It also influenced the development in that case. Further, all member states had to accept the principles and rules of the PCIJ. The PCIJ had also advisory function in case if the League of Nations Council or Assembly and a member state of the PCIJ were not normally a member state of the League of Nations. Last, it got more and more representative in the international context.
The International Court of Justice (ICJ)
The case of the Second World War the PCIJ had less space for activities. The last conference was in December 1939, after that the PCIJ advanced backwards and did not act in cases of disputes between countries. In 1942, the United States and Great Britain tried to establish a new international Court and the Inter-American Juridical Committee started to construct a new way of the PCIJ. In connection with this development, some informal Committees got held and published in February 1944 a report, which contained that the Statute has to be an international law and had to be based on the Permanent Court of International Justice. It should have advisory character and acceptance in the jurisdiction.
Meanwhile, on 30 October 1943, following a conference between China, the USSR, the United Kingdom and the United States, a joint declaration was issued recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.
The result of the meeting (October 1944) was a proposal for the International Court of Justice and represented in the beginning at one of the first meetings in Washington 1945, 44 states with a Committee of lawyers. The preparations of the Statute of the ICJ happened at the San Francisco Conference in 1945 with 50 participants and were based on the Statute of the PCIJ. That conference was one of the most important in the history of the ICJ.
The Court was the judicial part of the United Nations and was linked to the League of Nations. All member states of the United Nations are member states of the ICJ. In the beginning of the ICJ the European countries dominated national, political and judicial affairs and case, that was the reason why the ICJ and the United Nation added some countries as members and they increased from 51 (1945) to 192 (2006).
Functions and structure of the International Court of Justice in The Hague:
The official formation date is the 26. June 1945. The official seat is like the former organisation in The Hague. The ICJ consists out of fifteen judges, who have to be from the member states of the United Nations. These are independent and have a diplomat status. They get voted from the General Assembly and the Security Council of the United Nations. The main duties of the ICJ are to communicate between two or more disputing parties, but they have to state because the ICJ is not working with cases of individuals or organisations. Decisions are based on international law.
The ICJ is the only institution of the United Nations which has its headquarter, not in the main quarter in New York, like mentioned, it is in The Hague, Netherlands.
The ICJ is a very important institution. It is also very strict in its way of proceeding and with the judges. They get voted every three years and they have to be from different countries and cultures. That’s all very interesting because it is possible to see the multiculturalism and the fact that it is independent and is not allowed to be on one side. The question in the beginning: what is the meaning or the importance of the ICJ is on the one hand very easily to answer, but, on the other hand, the answer is not satisfying. The ICJ should stabilise the world peace and should be in the case of verbal and non-verbal conflicts a possibility for solutions. It should take care of countries, who try to change that and should give them sanctions and borders in the international context. The problem is that everything has to be strictly worked out on the international law and there is no way of emotionality or something similar. The other thing is that world peace is an utopianism, which will never be reached and every minute the problem is getting bigger because more and more people are living in this world. That means they need more place and that results conflicts. Hopefully, the ICJ can interfere in such cases like it did before.
This is an advanced undergraduate course offered a guide to the International Courts and Tribunal in The Hague.
Here comes a verification link on Coursera platform.