Sunday, April 22, 2012

The International Court of Justice: A Survey of Contentious Cases from 2001 to 2011

By Alexander H. Hill
Alex Hill, a second year student at Albany Law School, is an associate editor of International Law Studies. He currently works at the Albany Law School Low Income Taxpayers Clinic and spent the last year interning for the Executive Offices of the New York State Department of Financial Services.
He prepared this paper for the Judicial Process Seminar, Fall 2011.
Publication of his associated presentation was previously published by the Center for Judicial Process.

We are haunted by the greatest unfinished task of civilization which is to create a just and peaceful international order. If such a relationship between states is to be realized, we know its foundations will be laid in law, because legal process is the only practical alternative to force.
--Robert H. Jackson, Address to Inter-American Bar Association, 1941.
After the world witnessed the horrors of man exposed in World War II, the Four Powers of the globe (the United States, the United Kingdom, the USSR, and China) collaborated to form an International Court of Justice, keeping in mind the principles of sovereignty and international law. The Four Powers prepared a proposal that was submitted to the United Nations and resulted in the creation, or re-creation, of an international court established with general jurisdiction and the ability to hear complaints between nations, in the hope of bringing and maintaining peace throughout the world.

The court was named International Court of Justice (ICJ). It continues the pursuit of peace through the jurisprudence of international law to this day.

The ICJ is the main judicial organ of the United Nations. Established in 1945, through the Charter of the United Nations, its role is to hear and decide disputes of international law that states submit to, as well as to provide advisory opinions regarding legal inquiries by members of the United Nations and specialized agencies that are authorized to do so. It is the only court in the world that has general jurisdiction over international law.

Given the evolving globalization of the states of the world, as well as the ever growing complex issues that arise internationally, the natural presumption is that the ICJ is a court that would receive and address complex cases involving difficult issues from all over the world, and that the processes utilized by the ICJ would allow for an unbiased decision in such cases. A review of data from the last ten years (2001–2011), however, indicates some issues in that the contentious cases heard by the ICJ are not representative of the globe.

Its role thus appears to be evolving into one of more advisory and procedural, using judicial restraint on an international level to defer more controversial and politically charged issues to other venues such as regional tribunals and the International Criminal Court (ICC), and acting as a guide for these tribunals, both in structure and decision making.*
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.