Justice for all from a global courtroom
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5 December 2013
15 November 2013
As it approaches its 50th anniversary, the World Court is busier than it has ever been. It recently finished hearing the biggest case in its history in which over 40 states provided written pleas and 24 gave oral testimony. The issue at stake was whether the use or threatened use of nuclear weapons violated international law. A judgment is expected in the first week of April.
"The fact that all of the nuclear states showed up and gave opinions showed that states are willing, if it is in their interest, to appear before an international tribunal," says Duncan Currie, director of the Greenpeace legal department.
The nuclear weapons legal action was brought to the World Court, also known as the International Court of Justice (ICJ), by the United Nations General Assembly and the World Health Authority which wanted the court to render an advisory opinion on the issue.
The ICJ, which was founded in 1945, has the authority to resolve international disputes between nations or to provide advisory opinions on issues which it considers fall within the jurisdiction of the court.
"They are dealing with meaty issues," explains barrister Philippe Sands, who has been counsel at four cases at the court and lectures on international law at London University. "The court is in the spotlight - it has got to be seen to be responding."
Since its inception, the ICJ has heard cases between 45 countries. It is currently hearing a wide range of cases including ones involving the Lockerbie bombing, the diversion of the River Danube and disputes between Canadian and Spanish fishing trawlers.
One of its most significant decisions involved a recent territorial dispute between Libya and Chad, says a senior UK diplomatic source. He was impressed that both countries voluntarily participated in the hearing and willingly accepted the court's decision.
He adds: "If you go back to the bad old days of the Cold War, you can't imagine that this would have happened...The court is an institution of considerable importance to achieve peaceful and rational settlement of disputes."
The UK has also been willing to "expose itself" to the court's decisions, even when they were not in its favour and it is the only one of the five security council members which has followed all of the court's decisions.
Rosalyn Higgins, a professor of law at the London School of Economics, was recently appointed as a World Court Judge.
She explains that claims are being made "not by one group or type of states" but by small and large states alike.
She adds: "There is absolutely no doubt the court is playing a rather important role."
And those involved in the cases certainly take notice of verdicts. "Compliance rate scoring is very high and compliance is based on consent," says Higgins.
The court bases its judgments on international laws, treaties and customs, and is frequently asked to interpret on 'grey' areas of the law.
According to Professor Crawford, Whewell Professor of international law at Cambridge University, one problem encountered by the court is that "people come to it with extremely high expectations. "
He believes that so many heads of state agree to use the court to resolve their territorial disputes because "it is better to lose in court than concede as a politician".
Pierre-Marie Dupuis, professor at the University of Paris 2 Law School, acted as counsel to France in its recent disputes with New Zealand.
He argues that the World Court "does not help very much in the clarity of very specific issues".
But, Dupuis asks: "What kind of courts do states want? Are they happy with a court which takes a narrow view which counsel and others have to accept?"
Dupuis and other academics agree that "countries seem to be happy. What they first want is their case to be decided."
France was directly affected by the efforts of Greenpeace, which tried to prevent the country from testing nuclear weapons. Dupuis' impression, which is shared by many academics, is that the non-governmental organisations (NGOs) like Greenpeace will play an increasingly important role in the future of the court.
At present, only UN member states and organisations can bring cases before the court, leaving Greenpeace and its four million members without standing or jurisdiction to bring their claims.
"All sorts of NGOs are now pressing for greater recognition that NGOs are players on the world scene," says Greenpeace's Duncan Currie. He is in favour of "a tribunal that will hear claims from multinationals and NGOs".
In one dispute with France, Greenpeace set up an international tribunal in Geneva to resolve its claim over the sinking of its ship, Rainbow Warrior. France agreed to participate in the tribunal, which awarded Greenpeace $8.25 million in damages. "It was the first time that an international arbitration had taken place between a state and an NGO over tort," says Currie.
He believes a permanent tribunal to hear this type of case could be an adjunct to the present court.
Currie was impressed by the international involvement in the recent nuclear case. For example, Professor Josef Rotblat, who recently won the Nobel Peace Prize, was too ill to attend the hearing but gave written testimony to the court on the impact of nuclear fallout. "World class lawyers were forced to look at legalities of nuclear weapons," says Currie.
In its 50th year of existence the court has established itself as a bridge between academics, public interest groups and lawyers who want a practical application of law. It represents not only the states but the global community and as such it has truly achieved the weighty title of World Court.
HISTORY OF THE ICJ
The foundations for the permanent ICJ were laid in the Hague Peace Conference of 1899.
It took shape under the League of Nations, and in 1945, through a Charter from the United Nations, the World Court, was formed.
It was inaugurated in the Hague in April 1946 and is celebrating its 50th anniversary next month.
1899 Permanent court of Arbitration was founded at the Hague Peace Conference
1922 the League of Nations forms the Permanent Court of International Justice (PCIJ)
1945 the World Court is set up by a charter from the United Nations (ICJ)
1946 The World Court (International Court of Justice) has its inaugural sitting
1995 The World Court hears its largest case on the use or potential use of nuclear weapons
1996 The court celebrates its 50th birthday
Notable Cases Pending at the icj:
Aerial incident in 1988 (Islamic Republic of Iran v US)
Maritime delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v Senegal)
Maritime delimitation and territorial questions between Qatar and Bahrain (Qatar v Bahrain)
Questions of interpretation and application of the 1971 Montreal Convention arising from the aerial incident at Lockerbie (Libyan Arab Jamahiriya v UK)
Same as previous case but v US
Oil platforms (Islamic Republic of Iran v US)
Applications of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia ((Serbia and Montenegro))
Gabcikovo-Nagymaros Project (Slovakia/Hungary)
Land and maritime boundary between Cameroon and Nigeria (Cameroon v Nigeria)
Fisheries jurisdiction (Spain v Canada)
Judges at the icj
The ICJ is composed of 15 judges from around the world who are independently elected by the United Nations General Assembly and the Security Council, to serve nine-year terms of office.
The judges do not represent their governments but are independent magistrates whose role is to take an objective stand on international matters. In the recent case involving a dispute between France and New Zealand over French nuclear testing, Judge Shigeru Oda of Japan recognised the impact of nuclear weapons on his own country while still ruling that the legality of the French nuclear tests was not within his jurisdiction.
To qualify for a post on the court, judges must possess qualifications for the highest judicial office in their own countries, or be jurists of recognised competence in international law.
The present composition of the court is as follows:
President Mohammed Bedjaoui (Algeria), vice-president Stephen M Schwebel (US), Judges Shigeru Oda (Japan), Gilbert Guillaume (France), Mohamed Shahabuddeen (Guyana), Christopher G Weeramantry (Sri Lanka), Raymond Ranjeva (Madagascar), Geza Herczegh (Hungary), Shi Jiuyong (China), Carl-August Fleischhauer (Germany), Abdul G Koroma (Sierra Leone), Andras Parra Arangren (Venezuela), Vladlen S Vereshchtein (Russian Federation), Luigi Ferrari Bravo (Italy), Rosalyn Higgins (UK).
Dame Rosalyn Higgins, started her career as a staff lawyer at the Royal Institute of International Affairs before becoming a bencher of the Inner Temple.
Since 1980, she has been a professor of international law at the London School of Economics.