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93
AN OVERVIEW OF THE CHALLENGES
FACING THE INTERNATIONAL COURT
OF JUSTICE IN THE 21
ST
CENTURY
S. GOZIE OGBODO
∗
ABSTRACT
The effectiveness of the International Court of Justice (ICJ) is critical for
global survival and progress in the 21st century. Unfortunately, after over
six decades in existence, the Court’s influence is declining. This work
argues that to revitalize the influence and effectiveness of the Court,
some vital reforms must be undertaken in the ICJ system. These reforms
must address: (1) the process of election and re-election of ICJ judges;
(2) the conflict of interest arising from the presence of permanent
members of the United Nations Security Council on the Court; (3) the
issue of the Court’s compulsory jurisdiction; and (4) the appointment of
ad hoc judges under Article 31 of the Statute of the Court.
INTRODUCTION
Under the United Nations system, the ICJ is the “principal judicial
organ”
1
charged with two main functions, to wit; to assist in the
resolution of disputes between states, and to provide advisory opinions to
specified international organizations. Although established under the UN
Charter, the Court is nevertheless governed by the Charter,
2
the Statute of
∗ LL.B. (Unizik), LL.M. (G.G.U., USA), S.J.D. (G.G.U., USA), B.L., Senior Lecturer,
Faculty of Law, University of Benin, Benin City, Edo State, Nigeria. Formerly, Adjunct Professor,
Golden Gate University, San Francisco, California. E-mail: gozieogbodo@yahoo.com
1. U.N. Charter art. 92. The Court is popularly referred to as the World Court.
2. See id. art. 92-96.
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the ICJ,
3
the Rules of Procedure adopted by the judges and amended
from time to time,
4
as well as the Practice Directions adopted in October
2001.
5
Though many rules governing the ICJ strive to create an unbiased
and honorable entity, the Court’s legitimacy and impartiality have
nevertheless been compromised by issues surrounding the election and
re-election of its judges, the UN Security Council’s permanent members’
roles in the ICJ, the Court’s compulsory jurisdiction, and the nomination
of ad hoc judges by parties before the Court.
After six decades, the ICJ is at a crossroads as it braces to adjudicate the
disputes arising in the 21st century. Modern issues concerning
environmental protection, terrorism, and human trafficking—among
many others—are global problems deserving of attention from a global
court. This article argues that the ICJ is ill-equipped to tackle modern
international disputes if the jurisdictional and compositional problems
outlined above are not remedied, while also offering recommendations
for reform.
Part I introduces the reader to the inner-workings of the ICJ by
discussing the composition of the Court, beginning with an explanation
of its roots. Next, Part II critically dissects the challenging preliminary
issues of jurisdiction and admissibility. Part III provides an in-depth
analysis of the different bases for the exercise of the Court’s jurisdiction,
with particular focus on contentious and advisory jurisdiction. Part IV
highlights four main challenges facing the International Court of Justice,
while Part V concludes by proffering recommendations for a more
efficient ICJ in the 21st century.
I. THE COMPOSITION OF THE COURT
The International Court of Justice is an offshoot of the Permanent Court
of International Justice (PCIJ).
6
The latter was formed by virtue of
Article 14 of the Covenant of the League of Nations which mandated the
Council of the League to “formulate and submit to the Members of the
League for adoption plans for the establishment of a Permanent Court of
3. Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179
[hereinafter ICJ Statute].
4. Rules of Court of the International Court of Justice, 1978 I.C.J. Acts & Docs. 4 [hereinafter
ICJ Rules].
5. International Court of Justice, Practice Directions (Jan. 20, 2009), available at
http://www.icj-cij.org/documents/index.php?p1=4&p2=4&p3=0&lang=en.
6. The United Nations Organization (UNO)—the parent organization of the ICJ—is the
successor of the League of Nations, which was the parent organization of the PCIJ. Further, the
Court is located in the former headquarters of the PCIJ in The Hague, Netherlands.
2
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CHALLENGES FACING THE INTERNATIONAL COURT 95
International Justice.”
7
In exercise of this power, the League appointed
an advisory Committee of Jurists and legal publicists which formulated
the Root-Phillimore plan,
8
the bedrock for the establishment of the PCIJ.
Twenty-four years after its inception, the PCIJ was succeeded by the ICJ
in 1946. By the time of its dissolution, it had handled twenty-nine
contentious cases and rendered twenty-seven advisory opinions.
9
Currently, the ICJ consists of fifteen judges, out of which one seat is
reserved for each of the five permanent members to the Security
Council.
10
Moreover, no single member state may have more than one
representative on the court.
11
As a first step in the nomination process,
the list of nominated candidates is drawn up by the UN Secretary-
General for presentation to the General Assembly and subsequently to
the Security Council for the election of the judges.
12
The election of a
successful candidate is typically based on absolute majority.
For a candidate to be eligible for election, two main criteria must be
taken into account. First, the candidates must be persons “of high moral
character, who possess qualifications required in their respective
countries for appointment to the highest judicial offices, or are
jurisconsults of recognized competence in international law.”
13
Secondly,
the elected body of judges must reflect “. . . the main forms of
civilization and [the] principal legal systems of the world. . . .”
14
In other
words, not only must the eligible candidate meet the minimum standard
for election to the highest court of his/her country or be an internationally
7. League of Nations Covenant art. 14.
8. The Root-Phillimore committee was appointed by the League of Nations to formulate the
procedure for the nomination and election of the judges of the Permanent Court of International
Justice under the defunct League. It was the recommendation of the committee which gave rise to
the establishment of the PCIJ in 1922.
9. See P
HILIPPE SANDS & PIERRE KLEIN, BOWETT’S LAW OF INTERNATIONAL INSTITUTIONS
356 (6th ed. 2009). By 1986, however, the ICJ had been presented with seventy-three cases. From
those cases, the court rendered forty-eight judgments, eighteen advisory opinions and 213 procedural
orders. Id. See also International Court of Justice Website: Permanent Court of International Justice,
http://www.icj-cij.org/pcij/index (last visited March 18, 2011).
10. The current President of the Court, Judge Hisashi Owada (Japan), was elected on February
6, 2009, to serve as President for three years. The Vice President is Judge Peter Tomka (Slovakia).
The other judges include Joan E. Donoghue (America); Ronny Abraham (France); Xue Hangin
(China); Bruno Simma (Germany); Koroma (Sierra Leone); Leonid Skotnikov (Russia); Christopher
Greenwood (Britain); Kenneth Keith (New Zealand); Bernardo Sepulveda-Amor (Mexico);
Mohammed Bennouna (Morocco); Antonio Trindade (Brazil); Abdulqawi Yusuf (Somalia) and Awn
Shawkat Al-Khasawneh (Jordan), whose term ended in 2011. His replacement had not been
announced at the time of completing this work.
11. International Court of Justice Website: Members of the Court, http://www.icj-
cij.org/court/index.php?p1=1&p2=2 (last visited Apr. 23, 2012).
12. It is noteworthy that the use of veto power in the Security Council does not apply to the
election of the ICJ judges. See ICJ Statute, supra note 3, art. 4, 8, & 10.
13. ICJ Statute, supra note 3, art. 2.
14. Id. art. 9.
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recognized jurisconsult, but he/she must also represent one of the
“principal legal systems of the world.” The goal in the composition of
the court is both to ensure that eminently qualified persons are elected
and to guarantee that the court is truly global in character.
15
ICJ judges enjoy a high security of tenure because they are elected for
nine years. They are also not subject to an official retirement age, and
their dismissal is rare because it requires a unanimous decision of all the
other members of the Court.
16
A judge may, however, resign voluntarily
for personal or health reasons if it would be impracticable for the judge
to continue to discharge the duties of his/her office. The Security Council
may also choose not to re-elect a judge after his/her nine-year term if the
Council feels that the judge is of health too poor to continue serving on
the bench.
In order to shield the judges from external influences, they are prohibited
from engaging in “any political or administrative function or . . . any
other occupation of a professional nature.”
17
Further, a judge who has
acted as agent or counsel or in some other capacity in a case prior to
his/her election to the Court is excluded from presiding over that
particular case.
18
Even after retirement, judges, ad hoc judges, Registrars,
and other Court officials are discouraged from acting as agents, counsels,
and advocates in cases pending before the Court.
19
An additional measure
geared towards ensuring the independence of the Court is the
remuneration of the judges and the ad hoc judges; their salary is tax-free
and pensionable. The rules and guidelines governing the Court evince a
clear concern for its impartiality and for judicial integrity.
Although the Court consists of fifteen judges, it may decide cases either
by a full bench, or in a chamber of three or more judges. The President of
the Court—who also serves as its administrative head—determines
whether the Court will sit as a full bench or as a reduced chamber, and
also chooses the number of judges to sit in a particular chamber.
Regardless of the composition of the Court, the final decision in any
given case is usually arrived at by a majority of the judges present. When
there is a tie vote, the President of the court is entitled to cast the decisive
15. The attempt to globalize the Court has been institutionalized in practice. Thus, the ICJ is
currently composed as follows: Africa (3), Latin America and the Caribbean (2), Asia (3), Western
Europe and other States (5), and Eastern Europe (2).
16. ICJ Statute, supra note 3, art. 18.
17. Id. art. 16.
18. Id. art. 17, para. 2.
19. International Court of Justice, Practice Directions (Jan. 20, 2009), available at
http://www.icj-cij.org/documents/index.php?p1=4&p2=4&p3=0&lang=en (scroll to Practice
Direction VIII).
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CHALLENGES FACING THE INTERNATIONAL COURT 97
vote to break the tie.
20
The right to cast a decisive vote is denied the
President if his State is a party in the dispute;
21
his nationality should not
influence his opinion. The rules pertaining to the decisions of the Court
exist to uphold its candor and integrity.
II. ISSUES OF JURISDICTION AND ADMISSIBILITY
In order for the ICJ to ‘adjudicate’ a case, the court must as a preliminary
matter determine both the issues of jurisdiction as well as the issues of
admissibility. Jurisdiction issues “are those which ultimately derive from
whether the Court has the right and power to consider the case brought
by a state,” while issues of admissibility determine whether the case
itself is one proper for determination when brought before the Court.
22
Therefore, issues of jurisdiction must precede any issues of admissibility
since issues of admissibility can only be raised when the Court’s
jurisdiction has been settled.
23
Competence de la competence is a well-settled principle of law providing
a court the power to determine whether it has the judicial right to
exercise jurisdiction in a given matter. The ICJ is specifically
empowered to exercise this right under Article 36(6) of the Statute of the
Court which states that “[i]n the event of a dispute as to whether the
Court has jurisdiction, the matter shall be settled by the decision of the
Court.”
24
The ICJ exercises this right both as a settled principle of
judicial practice as well as under the enabling statute. Once a preliminary
objection has been raised, either based upon jurisdiction or admissibility,
the immediate implication is that the proceedings shall be suspended
until the court makes a final determination on the objection.
25
A jurisdictional dispute may arise under a variety of grounds. For
example, a respondent State may be objecting to the attempt by an
applicant State to extend the scope of the jurisdiction under a treaty
obligation, or in an extreme circumstance, the respondent State may be
trying to frustrate the determination of the dispute in order to avoid
political embarrassment. Whatever the justification, the respondent State
must raise its jurisdictional objection as early as possible in the
20. See South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 I.C.J. 6, 51 (July 18).
21. ICJ Rules, supra note 4, art. 32, para. 1.
22. R.K.
GARDINER, INTERNATIONAL LAW 488 (2003).
23. This makes both procedural and common sense because jurisdiction serves as the building
block for further proceedings in any judicial hearing. It is the foundation of the judicial house and
must be established first in order to accommodate further deliberations in the dispute.
24. ICJ Statute, supra note 3, art. 36, para. 6.
25. ICJ Rules, supra note 4, art. 79, para. 5.
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proceedings by filing a ‘preliminary objection.’
26
By filing its objection,
the respondent state automatically becomes the applicant state (in
excipiendo reus fit actor) in a new and distinct proceeding specifically to
determine the validity of the objection. After such a proceeding, the
Court may uphold the objection, reject it, or it may “declare that the
objection does not possess, in the circumstances of the case, an
exclusively preliminary character.”
27
Each decision commands a great
deal of importance to the dispute. If the objection is upheld, the matter is
automatically dismissed. If the objection is rejected, or does not possess
“an exclusively preliminary character,” the matter may proceed.
Objections premised upon admissibility are procedurally secondary to
the objections premised upon jurisdiction. In order to raise issues
premised upon admissibility, the respondent state must have consented to
the Court’s jurisdiction ab initio, but objects to the determination of the
dispute based on other grounds. Typically, the respondent’s objections
on admissibility may be grounded upon one or more of the following
grounds: lack of locus standi by the applicant,
28
the necessity to join a
third party,
29
the mootness of the dispute,
30
the existence of local
remedies that have not been exhausted,
31
etc. Regardless of the basis for
the objection premised upon admissibility, the Court may uphold it,
reject it or make ‘curative’ orders.
32
If the Court upholds the objection,
the matter shall terminate permanently. Contrariwise, if the Court rejects
the objection, the matter shall continue. But if the Court makes a
‘curative’ order, the matter shall be suspended temporarily until the
defect has been cured.
26. See id. art. 79, para. 1. The rule defines a preliminary objection as “[a]ny objection by the
respondent to the jurisdiction of the Court or to the admissibility of the application, or other
objection the decision upon which is requested before any further proceedings on the merits . . . .”
27. Id. art. 79, para. 9.
28. In order for locus standi to exist, the party must have a legally protected right which it
intends to protect through the court. Where there is an absence of a legally protected right, an
applicant will be deemed to be a “busybody” or “meddlesome interloper.”
29. In such a situation, the respondent state may be claiming that a final resolution of the
dispute is impracticable without the involvement of a third party whose interest in the dispute is
indispensable.
30. Under this claim, the respondent state is alleging that the basis of the dispute has been
completely surmounted by prevailing circumstances. Therefore, there is no legal dispute between the
parties.
31. Here, the respondent state is asserting that the presentation of the dispute before the ICJ is
premature since the matter could be resolved domestically.
32. A curative order serves as an opportunity for the applicant state to take further steps in
order to cure a defect in the pleading. For example, the court may order the applicant state to join a
third party in the dispute. When the defect is cured by the applicant state, the court may then admit
the dispute for hearing.
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CHALLENGES FACING THE INTERNATIONAL COURT 99
From the foregoing, it is discernible that while objections premised upon
admissibility are in extreme circumstances curable, objections premised
upon jurisdiction cannot be cured if upheld. If the Court determines,
upon a respondent’s objection to jurisdiction, that it lacks jurisdiction to
entertain the dispute, the Court will dismiss the case. To do otherwise
would be tantamount to an exercise in futility since the judicial fruit of
the proceeding would be worthless to all parties involved.
III. THE JURISDICTION OF THE COURT
The most important challenge facing the International Court of Justice
borders on its jurisdiction. Jurisdiction is the sine qua non for the
exercise of judicial powers. Where it is lacking, a judicial body can not
exercise legally binding judicial power over a subject. The
indispensability of jurisdiction can be traced to the earliest account of the
judicial trial of Jesus Christ for treason.
33
According to Luke Chapter 23,
verse 6, during the trial of Jesus before Pilate, the latter discovered that
Jesus was a Galilean. Immediately realizing that he lacked jurisdiction to
try a Galilean, Pilate most appropriately transferred the case to Herod’s
court in Jerusalem. The rest is history.
“Jurisdiction is the authority by which courts and judicial officers take
cognizance of and decide cases.”
34
Where a court or judicial officer lacks
the requisite authority, any attempt to take cognizance of, and decide
upon any case, will be declared null and void. Indeed, just like a person,
a court cannot give what it does not possess. Nemo dat quod non habet.
Jurisdiction is simply “the legal right by which judges exercise their
authority.”
35
The question which naturally arises is, from where then,
does a court derive this legal right? In other words, from which fountain
of legal waters does the court derive its jurisdictional source? The answer
will depend inevitably on what kind of judicial body is under
consideration, for different judicial bodies derive their jurisdictional
authorities from different sources. For instance, in the national sphere all
judicial bodies derive their jurisdictional authorities from the constitution
of the country.
36
Contrariwise, in the international sphere the sources of
the jurisdictional authorities differ according to the judicial body and the
parent organization. Unlike a unified national system, governed by the
33. The treasonable charges against Jesus Christ can be deduced from the accusation leveled
against him in Luke Chapter 23, verse 2: “And they began to accuse him, saying, ‘We have found
this man subverting our nation. He opposes payment of taxes to Caesar and claims to be Christ, a
king.’”
34. Board of Trustees v. Brooks, 67 P.2d 4, 7 (Okla. 1937).
35. Max Ams, Inc. v. Barker, 293 Ky. 698, 702 (Ky. 1943).
36. See, e.g., C
ONSTITUTION Art. 6 (1999) (Nigeria).
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same grundnorm, the international sphere consists of a galaxy of
international organizations charged with the pursuance of distinctively
separate sets of objectives and goals. Just as their objectives and goals
differ, so do their compositions and jurisdictional authorities. Therefore,
the courts in the international sphere derive their jurisdictional authorities
from the constitutive charter of their respective organizations, charged
with a distinctive set of judicial goals and objectives.
37
The ICJ, in particular, exercises both original jurisdiction as well as a
limited appellate jurisdiction.
38
The original jurisdiction of the Court can
be exercised under two main grounds: (a) contentious jurisdiction
39
and
(b) advisory jurisdiction.
40
According to Richard K. Gardiner, in the
exercise of its jurisdiction, only the ICJ’S decisions in contentious cases
are binding and only on the parties to each particular case.
41
Therefore,
they can create res judicata with respect to the parties. He further asserts
that despite this fact, “the authority of the Court is such that both its
judgments and advisory opinions effectively carry equal authority as
indications of international law.”
42
Alternatively, an advisory opinion
lacks such binding force and cannot create a res judicata bar since there
are no ‘parties,’ strictly speaking, before the court.
43
Philippe Sands Q.C.
and Pierre Klein contend that an advisory opinion can be classified as a
“weaker” statement of the law than a judgment. Nevertheless, the moral
and political potency of an advisory opinion is indisputable. Indeed, the
court itself makes reference to earlier opinions when the need arises
44
while the judges of the court have exalted “all the moral consequences
37. For example, while the United Nations Organization (UNO) created the International Court
of Justice (ICJ) as its principal judicial organ, the African Union (AU) created the African Court of
Justice and Human Rights to serve as its judicial organ. In the same vein, the Economic Community
of West African States (ECOWAS) created the ECOWAS Court to serve as its judicial organ.
38. The Convention on International Civil Aviation (1944) provides for appeals to the ICJ
from the decisions of the Council of the International Civil Aviation Organization (ICAO).
Convention on International Civil Aviation, Dec. 7, 1944, art. 84, 3 Bevans 944, 15 U.N.T.S. 295.
Also, the International Air Services Transit Agreement (1944) provides for appeals to the Court.
International Air Services Transit Agreement, Dec. 7, 1944, art. 2, para. 2, 3 Bevans 916, 84
U.N.T.S. 389. See also Jurisdiction of ICAO Council (India v. Pak.), 1972 I.C.J. 46, 52-57 (Aug.
18).
39. ICJ Statute, supra note 3, art. 34, para. 1.
40. Id. art. 65.
41. G
ARDINER, supra note 22, at 488.
42. Id.
43. Id.
44. See Case Concerning the Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7,
41 (Sept. 25) (referring to an earlier opinion on the respect for the environment expressed in Legality
of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 241-42 (July 8)).
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CHALLENGES FACING THE INTERNATIONAL COURT 101
which are inherent in the dignity of the organ delivering the opinion,”
45
or “the legal position as ascertained by the court.”
46
A. C
ONTENTIOUS JURISDICTION
The contentious jurisdiction of the ICJ can only be invoked where there
exists a genuine dispute of a legal nature. Such “[a]n international legal
dispute can be defined as a disagreement on a question of law or fact, a
conflict, a clash of legal views or of interests.”
47
The jurisdictional basis
can be found under Article 34(1) of the ICJ Statute, which explains that
“only states may be parties in cases before the Court.”
48
,
49
Another critical basis for the exercise of the Court’s jurisdiction in
contentious cases is the consent of the parties. It is noteworthy that “the
form in which this consent is expressed determines the manner in which
a case may be brought before the Court.”
50
Article 36 of the Statute of the
ICJ states, “[t]he jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the Charter of
the United Nations or in treaties and conventions in force.”
51
It is critical
45. Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion, 1950 I.C.J. 65,
80 (Mar. 30). The quote is attributed to Judge Azevedo.
46. Admissibility of Hearings of Petitioners by the South West Africa Committee, Advisory
Opinion, 1956 I.C.J. 23, 47 (June 1) (separate opinion of Sir Hersch Lauterpacht).
47. International Court of Justice Website: Contentious Jurisdiction, http://www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=1See the official website of the ICJ at http://www.icj-
cij.org/juridiction/index.php?p1=5&p2= 1 (accessed last visited on April il 15, 2011). See also
Bingbin Lu, Reform of the International Court of Justice: A Jurisdictional Perspective, 5
PERSPECTIVES Vol. 5, No. 23 (, 2004), 3, wherein he(citing article 36(1) of cited the Statute of the
International Court of Justice, 1946 U.N.Y.B. 843 at 846, 3 T.I.A.S. 1179 art. 36(1).).
48. ICJ Statute, supra note 3, art. 34, para. 1. It is noteworthy that this provision relates only to
sovereign states. Further, it can be explained on the basis that at the earliest development of
international law, only sovereign states were recognized as the principal subjects of international
law. However, presently, there are new and emerging subjects of international law, like international
organizations. In fact, some commentators have argued that it is time to expand the contentious
jurisdiction of the Court to permit international organizations to become parties. See D.W. Bowett, et
al., The International Court of Justice: Efficiency of the Procedures and Working Methods, 45 I
NT’L
& COMP. L. Q. 524 (1996).
49. There are three categories of states permitted to be parties in cases before the Court. The
first category includes all 192 member states of the United Nations which are automatically parties
to the Statute of the Court. U.N. Charter art. 93, para 1. The second category includes non-U.N.
members which want to appear permanently before the Court on the special conditions laid out by
the General Assembly on the recommendation of the Security Council. U.N. Charter art. 93, para 2.
The third category includes non-U.N. members appearing before the Court in a particular case
without acceding to the Statute of the Court. See U.N. Charter art. 35, para. 2.
50. International Court of Justice Website: Basis of the Court’s Jurisdiction, http://www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2 (last visited Apr. 23, 2012).
51. ICJ Statute, supra note 3, art. 36, para. 1. See also id. art. 36, para. 2 (“The states parties to
the present Statute may at any time declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the
Court in all legal disputes concerning: a.) the interpretation of a treaty; b.) any question of
international law; c.) the existence of any fact which, if established, would constitute a breach of an
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to note that the consent of the parties “. . . may be made unconditionally
or on condition of reciprocity on the part of several or certain states, or
for a certain time.”
52
In essence, the consent of the parties may take a variety of forms ranging
from unconditional consent to consent based upon reciprocity or consent
limited in time. Whatever form the consent may take, it must still serve
as a prerequisite for the exercise of the Court’s jurisdiction. The consent
of the states parties may be explicit or implicit, and is derived from
several areas: (i) by special agreement; (ii) in treaties or conventions; (iii)
by compulsory jurisdiction; (iv) via forum prorogatum; (v) by the
Court’s own determination of its jurisdiction; (vi) from interpretation of a
judgment; and (vii) from the revision of a judgment.
1. Special Agreement
Where the parties conclude a special agreement to submit a legal dispute
to the Court, the agreement can be said to be an express and unequivocal
consent to the Court’s jurisdiction. Typically, the parties send such
notification of special agreement or written application to the Court’s
Registry, specifying the subject of the dispute as well as the parties to the
dispute.
53
2. Treaties and Conventions
The state parties may also consent to the Court’s jurisdiction in bilateral
or multi-lateral treaties by the inclusion of jurisdictional clauses in such
treaties. Where a legal dispute arises from such treaty or convention, a
party can unilaterally bring a written application instituting proceedings.
Such application must state the parties, the subject of the dispute, as well
as the treaty or convention provision upon which the issue arose.
54
Included under this category are treaties and conventions which were
meant to be referred to a tribunal instituted under the League of Nations
or the Permanent Court of International Justice, which were inherited by
Article 37 of the ICJ Statute.
international obligation; d.) the nature or extent of the reparation to be made for the breach of an
international obligation.”).
52. Id. art. 36, para. 3.
53. Id. art. 36, para. 1 & art. 40, para. 1. See also ICJ Rules, supra note 4, art. 39.
54. ICJ Statute, supra note 3, art. 36, para. 1 & 40, para 1. See also ICJ Rules, supra note 4,
art. 38.
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3. Compulsory Jurisdiction
State parties may consent to the jurisdiction of the Court by recognizing
as compulsory the jurisdiction of the Court. The focal point for such
compulsory jurisdiction can be seen in Article 36, paragraph 2, which
states as follows:
the State parties to the present Statute may at any time declare
that they recognize as compulsory ipso facto and without special
agreement, in relation to any other State accepting the same
obligation, the jurisdiction of the Court in all legal disputes
concerning: a) the interpretation of a treaty; b) any question of
international law; c) the existence of any fact which, if
established, would constitute a breach of an international
obligation; d) the nature or extent of the reparation to be made
for the breach of an international obligation.
55
In other words, Article 36(2) is an optional clause which State parties
may choose to adhere to.
If both parties have previously recognized such compulsory jurisdiction,
consent is present and the Court has jurisdiction over the matter.
4. Forum Prorogatum
The rule of forum prorogatum enables a State which had, hitherto, not
recognized the jurisdiction of the Court when a legal proceeding was
filed against it to subsequently consent to the Court’s jurisdiction.
5. Determination of Its Own Jurisdiction
Under Article 36(6), the Court is empowered to determine whether it has
jurisdiction with respect to a legal dispute. As discussed above, in the
55. ICJ Statute, supra note 3, art. 36, para. 2. Other conditions are contained in paragraph
three, which states that the declarations referred to above “may be made unconditionally or on
condition of reciprocity on the part of several or certain States, or for a certain time.” Id. art. 36,
para. 3. Paragraph four states that “such declarations shall be deposited with the Secretary-General
of the United Nations, who shall transmit copies thereof to the parties to the Statute to the Registrar
of the Court.” Id. art. 36, para. 4. Paragraph five explains that “declarations made under Article 36 of
the Statute of the Permanent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be acceptances of the compulsory
jurisdiction of the International Court of Justice for the period which they still have to run and in
accordance with their terms.” Id. art. 36, para. 5. In 1946, then-President of the United States Harry
S. Truman signed a declaration accepting the Court’s compulsory jurisdiction. In 1985, however, in
protest over the ICJ’s determination to entertain the case filed by Nicaragua against the United
States, the latter terminated the 1946 Declaration. See Notice of Termination of the 1946
Declaration, signed by George P. Shultz, U.S. Secretary of State (October 7, 1985).
59
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event of a dispute over the Court’s jurisdiction, the ICJ may resolve the
issue of its own accord.
6. Interpretation of a Judgment
Where there is a legal dispute with respect to the meaning or scope of a
judgment, the Court can construe it upon the request for interpretation.
Such a request may be made by an agreement of all the parties or any
party.
56
7. Revision of a Judgment
Any party may apply to the Court for revision of the judgment of the
Court. Such a rare application may be entertained “upon the discovery of
some fact of such a nature as to be a decisive factor.”
57
Moreover, such a
fact must be unknown to the Court and the party seeking revision when
the judgment was rendered.
B. A
DVISORY JURISDICTION
Advisory opinions are non-binding opinions of the Court that
nevertheless carry great weight in the realm of international law and have
the ability to strengthen “peaceful relations between States.”
58
The
advisory jurisdiction of the Court is guaranteed under Chapter IV of the
ICJ Statute. Specifically, Article 65 contains the following guide:
The Court may give an advisory opinion on any legal question at
the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations to make such
a request.
59
56. ICJ Statute, supra note 3, art. 60. See also ICJ Rules, supra note 4, art. 98.
57. International Court of Justice Website: Basis of the Court’s Jurisdiction, http://www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=1&p3=2 (last visited Apr. 23, 2012). See also ICJ Statute,
supra note 3, art. 61, para. 1; ICJ Rules, supra note 4, art. 99.
58. International Court of Justice Website: Advisory Jurisdiction, http://www.icj-
cij.org/jurisdiction/index.php?p1=5&p2=2 (last visited Apr. 23, 2012).
59. ICJ Statute, supra note 3, art. 65, para. 1. Article 65(2) states that “[q]uestions upon which
the advisory opinion of the Court is asked shall be laid before the Court by means of a written
request containing an exact statement of the question upon which an opinion is required, and
accompanied by all documents likely to throw light upon the question.” Id. art. 65, para. 2.
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CHALLENGES FACING THE INTERNATIONAL COURT 105
States are excluded from the Court’s advisory jurisdiction; it is said that
the advisory jurisdiction of the ICJ is an exclusive prerogative of any
body other than the member states themselves.
60
This interpretation may be too simplistic. Although the Statute expressly
omits states under Article 65, the interpretation of the term “whatever
body” demands more scrutiny. Does it include any organization or only
international organizations, in the strictest sense? Or is it limited to only
the United Nations and its organs? Limiting ‘whatever body’ to the UN
is attractive for its simplicity, but it would make little sense for the UN
and its organs to be “…authorized by or in accordance with the Charter
of the United Nations to make such a request.”
61
Furthermore, not every organization has the same type of right to the
Court’s advisory opinion; a right can be classified as original or
derivative. By original, we imply that certain organs of the UN enjoy
what has been classified as an “original right.”
62
Such organs are only the
General Assembly and the Security Council. In other words—and in
response to the clarification raised earlier in this section—it implies that
both the General Assembly and the Security Council can directly seek
the advisory opinion of the Court. To the contrary, the other organs and
specialized agencies of the UN are subject to “derivative rights.”
63
These
rights must be expressly conferred by the General Assembly before they
can be accessed by the agency. By implication, such other organs and
specialized agencies of the UN lack the direct access to the Court.
Instead, they must be authorized by the General Assembly as a condition
precedent. Furthermore, other non-UN organizations are excluded from
seeking the advisory jurisdiction of the Court.
IV. ISSUES FACING THE ICJ IN THE 21ST CENTURY
In order for the ICJ to creditably meet the challenges of the 21st century,
it must begin to address some of the issues that have hindered its
maximum performance since it began operation in 1946. Though most
rules governing the ICJ strive to create an unbiased and honorable entity,
the Court’s legitimacy and impartiality have been compromised by issues
surrounding: (A) the election and re-election of its judges; (B) the UN
60. However, some commentators have argued that the advisory jurisdiction should be
expanded to include the U.N. Secretary-General and national courts. See Stephen M. Schweble,
Preliminary Rulings by the International Court of Justice at the Instance of National Courts, 28 VA.
J. INT’L L. 495 (1988); S. Rosenne, Preliminary Rulings by the International Court of Justice at the
Instance of National Courts: A Reply, 29 VA. J. INT’L L. 401 (1989).
61. ICJ Statute, supra note 3, art. 65, para. 1.
62. See S
ANDS & KLEIN, supra note 9, at 356.
63. Id.
60
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Security Council’s Permanent Members’ roles in the ICJ; (C) the Court’s
compulsory jurisdiction, and; (D) the nomination of ad hoc judges by
parties before the Court.
A. T
HE PROCESSES OF ELECTION AND RE-ELECTION OF JUDGES
The Security Council has a disproportionate influence over the
composition of the ICJ. The Court’s judges are selected by the General
Assembly and elected by the Security Council. However, their re-
election is mainly conducted by voting in the General Assembly. The
prospect of re-election, which is typically funded and canvassed by the
government of the judge’s country, can become a mirage for a judge if
the judge fails to secure the indispensable support of the home country’s
government. Such a process, no doubt, will negatively influence the
independence of the judges bearing in mind that they will one day face
their re-election voting in the General Assembly.
Any member of the Court desirous of re-election will, like a true
politician, be unduly influenced by the prospect of winning the votes in
the General Assembly and not by the merits of the case. Moreover, since
there is no compulsory retirement age for the judges of the ICJ, the
temptation to continue to serve on the court ad infinitum will
understandably be very high. Such an undue influence is antithetical to
the cherished goal of impartiality in any judicial process such that each
case will be adjudicated based on the merits.
B. T
HE SECURITY COUNCIL’S PERMANENT MEMBERS’ ROLES IN THE
ICJ PRESENT A CONFLICT OF INTEREST
The five permanent members of the UN Security Council
64
wield great
power in the ICJ just as they do in the UN Security Council, undermining
the impartiality of the Court. Not only do the members all have a
representative judge on the ICJ, they equally play a dominant role in the
determination of the efficiency of the court. The Security Council is the
chief enforcer of the decisions of the ICJ. Specifically, Article 94(2) of
the UN Charter provides as follows:
If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party
may have recourse to the Security Council which may, if it
64. The permanent members of the UN Security Council who also enjoy the veto power are the
United States, the United Kingdom, France, Russia and China.
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CHALLENGES FACING THE INTERNATIONAL COURT 107
deems necessary, make recommendations, or decide upon
measures to be taken to give effect to the judgment.”
65
Thus, as permanent members with the veto power, the influence of the
permanent members in the Security Council can tremendously impact the
enforcement of the ICJ decisions. It is prima facie untidy for the same
‘big five’ to wield enormous powers both in the Security Council and the
ICJ. Such dominance perceptively impacts the ICJ’s image of
impartiality.
It has been contended, and rightly so, that:
With the Great Powers assured of representation on the bench, it
would be futile to urge smaller states to give up the right of
naming ad hoc judges and thus attaining equality with more
powerful opponents, unless the Statute of the Court be amended
so as to enlarge the membership of the Court and enable the
smaller states to be represented more equitably in the Court.
66
If the ‘big five’ retain their disproportionate influence, then the
impartiality and integrity of the ICJ will remain compromised.
C. T
HE ISSUE OF THE COURT’S COMPULSORY JURISDICTION
Member parties to the ICJ are free to accept or reject the compulsory
jurisdiction of the Court, which undermines the authority of the ICJ to
adjudicate relevant international issues of fact and law.
67
Four out of the
five permanent members of the Security Council have exercised this
choice by rejecting the compulsory jurisdiction of the court.
68
By so
doing, these powerful member parties have ‘watered down’ the influence
of the Court and encouraged a continuous erosion of its powers and
influence. This trend, no doubt, will continue to contribute to the decline
of the influence of the Court as long as countries that have a powerful
global presence continue to set a bad precedent by choosing not to adhere
to the Court’s compulsory jurisdiction.
65. U.N. Charter art. 94, para. 2 (emphasis added).
66. II Ro Suh, Voting Behavior of National Judges in International Courts, 63 A
M. J. INT’L L.
224, 236 (1969). For more on the issue, see W. Samore, National Origins v. Impartiality Decisions:
A Study of World Court Holdings, 34 C
HI.-KENT L. REV. 193 (1956).
67. For more on the acceptance of the Court’s compulsory jurisdiction, see supra note 51.
68. Britain is the only permanent member of the Security Council which still accepts the
compulsory jurisdiction of the Court. France and the United States withdrew their acceptance in
1974 and 1984, respectively.
61
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D. T
HE NOMINATION OF AD HOC JUDGES BY PARTIES
Article 31 of the ICJ Statute corrupts the integrity of the Court by
allowing a party before it to nominate an ad hoc judge if none of the ICJ
judges is a nationality of the party.
69
In other words, every party before
the ICJ is entitled to either a judge of the same nationality on the Court
or an ad hoc judge.
70
On the face of it, this practice may be geared
towards ensuring fairness and democracy in the operation of the Court.
71
However, a critical examination of this practice—as well as the
outcome—portrays an abuse of the judicial process at the highest level.
72
The records indicate that ad hoc judges typically vote for their country of
nationality, irrespective of the majority decision of the Court.
73
Guaranteeing a contentious party the right to a representative judge does
not augur well for the Court’s image of impartiality.
74
The impression created by this practice is that a party can only be
guaranteed a fair and impartial justice before the Court if, and only if, the
party is represented by one of the judges – either one of the elected
judges or an ad hoc judge. Moreover, the mere fact that a party before
the court must have a representative judge does not only negate the
impartial appearance of the Court, but speaks volumes about its ability to
69. ICJ Statute, supra note 3, art. 31, para. 1 (“Judges of the nationality of each of the parties
shall retain their right to sit in the case before the Court”). The second paragraph explains that “[i]f
the Court includes upon the Bench a judge of the nationality of one of the parties, any other party
may choose a person to sit as judge. Such person shall be chosen preferably from among those
persons who have been nominated as candidates as provided in Articles 4 and 5.” Id. art. 31, para 2.
Article 31(3), however, states that “[i]f the Court includes upon the Bench no judge of the nationality
of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this
Article.” Id. art. 31, para. 3.
70. ICJ Statute, supra note 3, art. 31.
71. In fact, it has been contended that “[t]his practice of employing national judges in
international courts is deeply rooted in the history of arbitration and judicial settlement.” Suh, supra
note 66, at 224.
72. Suh, supra note 66, at 224.
73. From the data collected in researching the voting pattern of the judges, both the regular and
ad hoc, Suh categorically asserted that “the conclusion seems warranted that in the total voting
behavior of national judges, the regular judges were less dominated by national interests than the ad
hoc judges.” Suh, supra note 66, at 230.
74. The obvious benefit of appointing an ad hoc judge is re-enforced by the fact that rarely do
states waive the right in a dispute. In fact, it has been stated that “[o]f 60 contentious cases and 40
advisory opinions, given by both the old and new Courts at The Hague from 1922 to the end of
August, 1967, in one case, namely, Interpretation of the Greco-Turkish Agreement of December 1,
1926, between Greece and Turkey, given on August 28, 1928, did both parties waive their rights,
although they were informed by the Court that they were entitled under Art. 31 of the Statute, to
appoint ad hoc judges. This they did because they were satisfied with the equality of status derived
from the fact that neither had a judge of its own nationality on the bench.” Id. at 235-36. In support,
the author cited to Acts and Documents Relating to Judgments and Advisory Opinions, 1928 P.C.I.J
(ser. C) No. 15-1, at 10 and Interpretation of Greco-Turkish Agreement of Dec. 1st, 1926, Advisory
Opinion,1928 P.C.I.J (ser. B) No. 16, at 7-8 (Aug. 28).
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CHALLENGES FACING THE INTERNATIONAL COURT 109
dispense States-blind justice to the parties before it.
75
This practice
contravenes the claim that a member of the Court is not a delegate of the
government of her/his own country. Since an ad hoc judge is an
appointee of a state party before the Court, the likelihood of future
appointment will definitely sway the judge to be sympathetic to the state
party which typically is his home state.
V. CONCLUSIONS AND RECOMMENDATIONS
The ICJ continues to command the pre-eminent position as the “principal
judicial organ” of the United Nations, but to renew the influence and
efficacy of the Court, vital reforms concerning the problems outlined
above must be undertaken. With membership consisting of almost all the
countries of the world, the sphere of influence of the ICJ is wide and
encompassing.
76
Such a court deserves to be most equipped to handle the
increasingly evolving judicial disputes arising in the 21st century. As the
world population continues to increase exponentially,
77
so do issues
arising from an ever-changing world. Issues concerning environmental
protection, terrorism, drug trafficking, human trafficking, globalization,
etc., are global in nature and deserve attention from an influential
international court.
Although the Court has managed to do reasonably well in the last six
decades, there are still areas for improvement and efficiency in order to
ensure maximum performance. This article proffers recommendations in
the following subsections: (A) the removal of judges from the permanent
member states; (B) the acceptance of the compulsory jurisdiction of the
Court; (C) the abolishment of Article 31 of the ICJ statute, and; (D) an
overhaul of the system of the election and re-election of judges.
A. T
HE REMOVAL OF JUDGES FROM THE PERMANENT MEMBER
STATES
The UN Security Council permanent members’ place on the International
Court of Justice conveys a poor impression of the Court. As it were, the
75. The tremendous amount of influence on the ad hoc judges to side with their state of
origin—the state which, in most cases, nominated them to represent them in a dispute—can be
illustrated with the following statement: “Of all influences to which men are subject, none is more
powerful, more persuasive or more subtle than the tie of allegiance that binds them (judges) to the
land of their homes and kindred and to the great sources of the honors and performances for which
they are so ready to spend their fortune and to risk their lives.” Suh, supra note 66, at 225 (citing
Fourth Annual Report of the Permanent Court of International Justice, 1928 P.C.I.J. (ser. E), No. 4,
at 75).
76. Currently, all 192 member states of the United Nations are members of the ICJ.
77. According to the United States Census Bureau, the world’s population is currently
estimated to be about 7 billion people.
62
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actions of the five permanent members on the Security Council have
been largely attributed to the disordered discharge of the onerous
responsibilities of the Council. It is common knowledge that since the
Cold War era,
78
the effectiveness of the Security Council had been
hampered by the tendency of the ‘big five’ to defend ideological interests
in the Council. Even in the post-Cold War era of the 21st century,
79
such ideological bias still persists.
80
The presence of the judges from those permanent member states on the
ICJ does not add any shine to the judicial image of the Court. Rather, it is
merely another extension of the dominance of the five permanent
members of the Security Council. Moreover, the fact that the decisions of
the ICJ are primarily enforced by the Security Council
81
generates a
conflict of interest that warrants a separation between the ICJ decisions
and the Security Council. The likelihood that the enforcement of the ICJ
decisions by the Security Council will be subject to the same political
shenanigans as in the Council is likely. A classic case is the use of the
veto power by the United States in 1986 to frustrate the resolution of the
Security Council for full compliance with the ICJ’s judgment in the case
of Nicaragua v. United States.
82
A situation where four out of five permanent members of the Security
Council and the ICJ have rejected the Court’s compulsory jurisdiction
while simultaneously acting as chief enforcers of its decisions, is not
only hypocritical but morally wrong. In any case, what is the
78. The Cold War era is estimated to have been from 1945 – 1991, when the Soviet Union
collapsed. It marked a period of high political and military tension between the U.S.-led Western
allies and the Soviet Union-led communist allies. George Orwell, the English author and journalist,
is credited as the first person to coin the phrase in a general term. However, the American
presidential advisor, Bernard Baruch, is credited as the first person to use it in the specific context of
describing the geopolitical tension between the United States and the Soviet Union. See M
ICHAEL
KORT, THE COLUMBIA GUIDE TO THE COLD WAR 3 (2001).
79. The post-Cold War era is from 1991 to the present.
80. The current stalemate in the Security Council regarding the appropriate sanctions to
impose against Iran for its nuclear weapon build-up is a clear testimony of how the two former
super-powers (U.S. and the Russian Federation) are still hampering the effectiveness of the Council
and by extension, the United Nations.
81. See U.N. Charter art. 94, para. 2.
82. In this case, the United States government raised a preliminary objection to the Court’s
jurisdiction. After the Court decided that it had jurisdiction to entertain the case pursuant to Article
36(6) of the Statute of the Court, the U.S. government withdrew from the case and reserved “its
rights in respect of any decision by the Court regarding Nicaragua’s claims.” Military and
Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 23 (June 27). The
final judgment was against the U.S., and when the matter came before the Security Council for
enforcement, the U.S. vetoed the resolution, thereby rendering the judgment unenforceable. See U.N.
Docs. S/18250 (1986) and S/PV. 2704 (1986). The General Assembly, however, remedied the
situation by adopting a resolution calling for “full and immediate compliance” with the Court’s
judgment. See G.A. Res. 41/31, U.N. GAOR, 53
rd
mtg., U.N. Doc A/RES/41/31 (1986).
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CHALLENGES FACING THE INTERNATIONAL COURT 111
enforcement option if one of the ‘big five’ refuses to perform its
obligation under a judgment of the ICJ in light of Article 94(2) of the UN
Charter? For example, after the Court had made an interim order for
restraint and was still deliberating on the final judgment in the Case
Concerning United States Diplomatic and Consular Staff in Tehran, the
US government made a futile attempt to rescue US citizens held as
hostages in Iran.
83
The court appropriately expressed its displeasure at
the action when it tersely condemned the action as one “of a kind
calculated to undermine respect for the judicial process in international
relations.”
84
This recommendation is in tandem with the practice at the
national level where there is a clear distinction of roles between the
judiciary and the chief enforcer of judicial decisions, i.e. the executive.
B. T
HE ACCEPTANCE OF THE COMPULSORY JURISDICTION OF THE
COURT
The statute of the ICJ should be amended with a view toward making the
jurisdiction of the court mandatory and compulsory to all parties. The
present situation whereby the member states are entitled to cherry-pick
the jurisdiction of the court has contributed in no small measure to the
watering-down of the prestige of the Court’s jurisdiction. As discussed
above, jurisdiction should be mandatory if the ICJ is to adjudicate
pressing international issues. Of particular concern is the current
situation whereby four of the five permanent members of the Security
Council have rejected the compulsory jurisdiction of the court.
85
Such a
practice, no doubt, sends a very strong and wrong precedence to other
member states.
As the global apex court, the ICJ deserves to command compulsory
jurisdiction in order to be better able to tackle an ever-evolving myriad of
legal issues. As it stands, the court is not well-equipped to meet
increasing global expectations in the 21st century.
C. T
HE ABOLISHMENT OF ARTICLE 31 OF THE ICJ STATUTE
Article 31 of the ICJ Statute should be abolished if the ICJ must begin to
regain its full image of impartiality and fairness.
86
The current provision
83. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 I.C.J. 7, 21
(Dec. 15).
84. United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 43
(May 24).
85. For more on the rejection of the Court’s compulsory jurisdiction by four of the five
permanent members of the Security Council, see supra note 68.
86. In making this recommendation, this author acknowledges and respects the
recommendations of other commentators, particularly that of Suh to the effect that the Statute of the
63
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of Article 31, which entitles a party before the Court to nominate an ad
hoc judge if none of the judges of the court is a national of the party,
immensely tarnishes the impartiality image of the apex court. The Court
must command a universally accepted image of impartiality such that
any party before it must have unqualified confidence in the ability and
courage of the Court to dispense States-blind justice.
87
Moreover, the
practice of ‘globalizing’ the court
88
which has taken firm root in the
composition of the court with a view to ensuring representation from all
the major global blocs should be encouraged.
If the original goals of Article 31 were intended to ensure fairness and
reflect the reality inherent in international relations, the same goals could
be well served by a truly globalized court as is presently composed.
Perhaps, the ratio of the judges relative to the geographical bloc which
they represent may be reviewed in light of the recent demographical
changes in the world population. But the additional safety net of allowing
every party to have a representative judge, particularly, an ad hoc judge,
contravenes the spirit of impartiality in the court. In making this
recommendation, however, the more compelling point is the proven case
of abuse of judicial power by the ad hoc judges in the ICJ.
89
D. A
N OVERHAUL OF THE SYSTEM OF ELECTION AND RE-ELECTION OF
JUDGES
Political influences in the election and re-election of ICJ judges warrant
an overhaul in order to restore integrity to the ICJ. By so doing, the ICJ
judges will enjoy maximum independence which is a sine qua non for an
effective administration of justice. Rather than continue the current
system, it is recommended that the coordination of the process for the
election and re-election of the judges should be the prerogative of the
International Law Commission, which is an arm of the United Nations.
90
Since the ILC is composed of internationally acclaimed legal jurists and
publicists, they will be in a better position to conduct the election and re-
election of the ICJ judges without undue political influence.
Court be amended either (1) to provide for the selection of an ad hoc judge by the “national group”
(referred to in Article 4 of the ICJ Statute) of the litigating state, or (2) to provide for his nomination
by the “national group” and his election by the Security Council. See Suh, supra note 66, at 231.
87. In support of this proposition, author Edith Weiss noted that “[s]tates will be willing to
submit disputes to the International Court of Justice, and certainly to accept its compulsory
jurisdiction, only if they are confident that their grievances will be heard by a Court which acts
independently and treats all states parties to a dispute equally.” Edith B. Weiss, Judicial
Independence and Impartiality: A Preliminary Inquiry, in T
HE INTERNATIONAL COURT OF JUSTICE
AT A
CROSSROADS 123, 124 (Lori Fisler Damrosch ed., 1987).
88. For more on the globalization of the Court see supra note 15.
89. See supra notes 73-75.
90. This recommendation will mirror the Root-Phillimore committee, supra note 8.
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CHALLENGES FACING THE INTERNATIONAL COURT 113
Practically speaking, the General Assembly can cede the functions with
respect to the compilation and short-listing of nominated candidates for
the ICJ to the ILC. By so doing, the ILC may be designated as the
‘electoral body’ for the ICJ.
91
After the election and re-election process
has been conducted by the ILC, the confirmation process may then be
undertaken by the General Assembly. The election and re-election
process will be professionally conducted by professional peers who will
be guided primarily by the highest ethics and standards of the legal
profession, while the confirmation process will be conducted by the
General Assembly to ensure universal confirmation of such a judge’s
election or re-election.
The recommendations made by this article seek to restore the status of
the ICJ, in both name and practice, as the world’s apex court. Facing
issues of jurisdiction and composition, the ICJ’s legitimacy and
impartiality have been compromised. The reforms proffered in this
article are requisite if the Court is to be equipped to effectively handle
the evolving myriad of legal issues confronting the global community in
the 21st century.
91. In this instance, functions may include the coordination of the process for the selection of
the candidates, the vetting of their qualifications, the interview of the short-listed candidates and the
final selection of the most qualified candidates. Since the ILC is composed of eminently qualified
legal experts and jurisconsults, the process will be less prone to political influence and will
command enormous credibility.
64
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Ogbodo: Challenges Facing the International Court
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