JUDICIAL SETTLEMENT

Institutions linked to the UN

1. The International Court of Justice (ICJ) The forerunner of the ICJ was the Permanent Court of International Justice (PCIJ)³, formally inaugurated in 1922 at The Hague.

Although there exists no legal continuity between the PCIJ and its successor institution, the ICJ, the founding fathers of the UN essentially used the model of the PCIJ for the newly created world court. Its seat is also at The Hague. With minor adjustments, the Statute of the PCIJ and its rules of procedure were taken over as the institutional basis of the ICJ. The Charter lists the ICJ among the principal organs of the UN (Article 7, paragraph 1) (Simma, 2002) and stipulates that its statute forms an integral part of the Charter. Thereby, it is guaranteed that any state admitted as a member of the UN automatically becomes a contracting party to the statute of the ICJ. In keeping with the principle of universality, the Charter enables even states which are not members of the UN to become a party to the Statute of the (Article 93, paragraph 2, UN Charter) (Simma, 2002). With the attainment of nearly universal membership of the UN, however, this provision has lost its previous relevance in the meantime. The ICJ has thus truly become a world court whose great legal authority and jurisdiction is universally recognized.

The main function of the ICJ clearly consists of passing judgements in cases of litigation submitted to it by states. This core function of the Court serves to settle legal disputes, thereby helping to eliminate con­flicts of an international dimension. Pursuant to the UN Charter (Article 94, paragraph 1), each member of the UN is obliged to comply with the decisions of the Court in any case to which it is a party. The obligation to honour the Court's decisions enhances the authority of its jurisdiction. In cases in which a party fails to comply with the decision of the ICJ, the other party may seize the SC to take appropriate action (Article 94, paragraph 2, UN Charter). In practice, the latter provision has little relevance, since with few exceptions, states generally do comply with the Court's judgements. In addition to its jurisdiction in cases of litigation, the ICJ is also competent to give advisory opinions. The UN General Assembly, the Secretary General, the Security Council and other organs of the UN or specialized agencies of the UN family may request an advisory opinion of the ICJ on any legal question (Article 96). When all requirements are met, the request for an advisory opinion of the World Court provides an alternative method for finding a legal solution to differences of opinion on important issues. Although advisory opinions do not have a binding effect, they are usually respected given the high legal authority of the Court.

The role of the ICJ (Rosenne, 2006) in clarifying and promoting international law cannot be overestimated. The ICJ is composed of 15 independent judges each from a different country, who are elected through a complicated procedure, for a term of nine years by the General Assembly and the Security Council of the UN. Under certain conditions, judges may be re-elected (Article 13 of the Statute) (Zimmermann, Tomuschat and Oellers-Frahm, 2006). Regardless of their nationality, the judges are elected from among persons of high moral character who possess the qualifications required in their respective countries for appointment to the highest judi­cial offices, or are jurisconsults of recognized competence in international law (Article 2 of the Statute) (Zimmermann, Tomuschat and Oellers-Frahm, 2006).

The jurisdiction of the ICJ requires the consent of the states which are parties to a dispute. Only states may bring a case of litigation to the Court. The competence of the ICJ presupposes that the state parties have in one way or another expressed their acceptance of the jurisdiction of the ICJ for that particular case. Pursuant to Article 36, paragraph 2 of the Statute, ‘the States parties (to the 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'. This ‘optional clause' is the legal basis for all unilateral declarations made by states to accept the jurisdiction of the ICJ on the basis of reciprocity. As of 13 March, 2007,66 states have made such declarations.

Another way of establishing the compe­tence of the ICJ to exercise its jurisdiction is to include a ‘compromissory clause' in an international agreement. To date, more than 300 bilateral or multilateral treaties provide such clauses stipulating the jurisdiction of the ICJ.

The acceptance of an international body's jurisdiction always implies giving up a piece of sovereignty. In general, states have a tendency to limit the scope of jurisdictional powers to be transferred to the ICJ. One restriction provided by the Statute itself is the principle of reciprocity (acceptance of the Court's jurisdiction only when the other party accepts the same obligation). A second limitation is the time element also provided for by the Statute (Article 36, paragraph 3) (Zimmermann, Tomuschat and Oellers-Frahm, 2006) allowing the acceptance of the Court's competence for a certain period of time only.

In 1985, in the course of the ‘Nicaragua case' (1984 ICJ 392), the USA withdrew its declaration of acceptance of the compulsory jurisdiction of the ICJ. The USA has not yet re-accepted the compulsory jurisdiction of the Court.

The ICJ bases its decisions on what is generally referred to as the classic canon of the sources of international law. Article 38, paragraph—(Zimmermann, Tomuschat and Oellers-Frahms, 2006) of the Statute cites four materials which are applied by the Court:

• international conventions

• international custom as evidence of a general practice accepted as law

• the general principles of law recognized by civilized nations

• as subsidiary means for the determination of rules of law - judicial decisions and teachings of the most highly qualified publicists of the various nations.

It has happened several times that a state, party to a legal dispute, contested the competence of the ICJ. That state usually challenged the Court's jurisdiction with the argument that its previous acceptance of the compulsory jurisdiction did not comprise the particular type of dispute under consideration, or that there was a lack of reciprocity in the sense that the applicant state had not so consented.

In such situations, the Court usually pro­ceeds in examining whether it has jurisdiction in the relevant case and determines the scope of consent by the parties to the dispute. In case the Court determines that it has jurisdiction, it examines the merits of the case irrespective of the dissenting opinion of the respondent state. In expanding its powers over the long period of its judicial activities, the ICJ, in certain cases, imposed ‘provisional measures' aimed at avoiding tensions between the parties or at preserving specific rights.

Assessing the work of the ICJ since its establishment in 1946, one is surprised by the low number of judgements rendered and advisory opinions given over such a lengthy existence. During the period 1946-2007, the ICJ passed 92 judgements on disputes and gave 25 advisory opinions. However, it would be wrong to measure the importance of the Court solely by the number of its decisions and advisory opinions. The range of disputes dealt with by the ICJ is quite impressive, covering a broad spectrum of legal issues (e.g. territorial and border issues, the non-use of force, diplomatic relations, asylum questions, nationality, economic rights, etc). While a number of cases were of minor importance, some others had great significance for the development of international law. The ICJ has greatly influenced the codification of the law of the sea, the international law of treaties and the law of the environment. The precedents set by the ICJ are usually cited as important points of reference influencing the legal positions of all states, irrespective of whether they were a party to the relevant dispute or not. In that manner, the impact of the Court's jurisdiction, even though it is binding only for the parties to the dispute concerned, goes well beyond the individual case in question.

2. The International Criminal Court (ICC) The Nuremberg and Tokyo trials held shortly after World War II to bring to justice the German and Japanese perpetrators of the most serious war crimes and crimes against humanity gave an important impetus to the idea of an international criminal court.

The ICC is an independent institution whose seat is at The Hague. Unlike the ICJ, the ICC is not an organ of the United Nations although it is closely linked to the World Organization. As of January 2007, 104 states have become a party to the Statute. Further, 41 states have signed but not yet ratified the Rome treaty. The USA has changed its position towards the ICC. On 31 December, 2000, President Clinton unexpectedly signed the Rome Statute but on 6 May, 2002, the Bush administration ‘nullified’ the US signature, thus showing that the USA is not yet prepared to trans­fer criminal jurisdiction to an international institution.

The ICC is composed of 18 independent judges, each from a different country, who are nationals of state parties to the Rome Statute. The description of their qualifications is similar to that of the members of the ICJ. The judges are elected by state parties for a term of up to nine years.

Of central importance is the jurisdiction of the ICC.

Article 5 of the Rome Statute lists four crimes referred to as the ‘most serious crimes of concern to the international community as a whole’ to fall under the jurisdiction of the ICC:

• the crime of genocide

• Crimesagainsthumanity

• war crimes

• the crime of aggression.

With the exception of aggression, the Statute gives a definition for each of these crimes. At the Rome conference, no agreement could be reached on a definition of aggression or on the inclusion of additional crimes for which the ICC should exercise its jurisdiction. Before and during the conference, several attempts failed to submit terrorism, drug trafficking and other illegal activities to the jurisdiction of the ICC.

In order to keep the momentum aimed at enlarging the scope of jurisdiction of the ICC, Article 123 of the Rome Statute provides for a review clause. It is foreseen that in 2009, a review conference shall be convened to reconsider and possibly enlarge the list of crimes contained in Article 5. The main task of the upcoming conference will be to find an acceptable definition of the crime of aggression to be added to the list of crimes under the jurisdiction of the ICC.

As to the Court’s territorial jurisdiction, the Rome Conference settled on a compromise. Instead of establishing the competence strictly on the basis of the principle of universality, the jurisdiction of the ICC can be exercised only under the following conditions:

• when the person accused of committing a crime is a national of a state party to the Statute (or in case the person's state has accepted the jurisdiction of the ICC)

• when the alleged crime was committed on the territory of a state party (or if the state on whose territory the crime was committed has accepted the jurisdiction of the ICC)

• in case a situation is referred to the Court by the UN Security Council.

The latter condition shows the close rela­tionship between the ICC and the UN. The Court’s jurisdiction is also confined by temporal restrictions. It cannot prosecute crimes committed prior to the date on which the Rome Statute entered into force (1 July, 2002). With regard to states becoming parties to the Rome Statute after that date, the ICC has the right to exercise its jurisdiction only relating to crimes committed after the date of entry into force of the Statute for the relevant states.

The ICC acts on the basis of complemen­tarity, that is, the ICC is a court of last resort in cases in which national criminal courts have failed to investigate or prosecute cases where the ICC has jurisdiction. The organs of the ICC are: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registrar.

The Court may be seized in three ways. A situation can be referred to it either by a state party to the Statute, by the UN Security Council or by the Prosecutor (proprio motu).

A survey of the cases brought before the ICC to date reveal over 1700 communications about alleged crimes in 139 countries. Most of them, however, have been inadmissible as they were found to be outside the Court’s jurisdiction. Three situations (Uganda, Demo­cratic Republic of Congo, Darfur) became the subject of investigation by the Court’s prosecutor.

It cannot be denied that the ICC suffers from the lack of acceptance of the Statute by major states, notably the USA, Russia, and China.

The limited membership considerably weak­ens the concept of a truly universal criminal jurisdiction. On the other hand, with all its failings, the recent establishment of the ICC undeniably marks the beginning of a universal system of criminal justice. Clearly, the current state of affairs is not the end of the story. The hope may be expressed that the upcoming review conference will be another milestone in the development of such a scheme.

3. Ad hoc criminal tribunals

As mentioned above, two international tri­bunals preceded the creation of the ICC. Both the International Tribunal for the Former Yugoslavia (ICTY)⁴ and the International Tri­bunal for Rwanda (ICTR)⁵ were established by resolutions of the UN Security Council as a reaction to the bloody conflicts on the territory of the former Yugoslavia and in Rwanda where the most serious crimes against humanity, war crimes and acts of genocide had been committed. The scale and gravity of the criminal acts perpetrated during these two conflicts led to the belief of the international community that the persons guilty of such serious offences should under no circumstances go unpunished. Bringing the perpetrators to justice was considered as a necessary precondition for the reconciliation process in the regions afflicted and as a key element for the re-establishment of the rule of law. Based on this conviction, the swift adoption of the relevant Security Council resolutions did not cause any major problems.

The ICTY and the ICTR resemble each other to a great extent. Both judicial insti­tutions have the mandate to prosecute and punish persons guilty of serious offences (genocide, war crimes or crimes against humanity). From an organizational point of view, there are also striking similarities between the two bodies. They operate in trial chambers, each composed of a certain number of judges. They are both endowed with an office of the prosecutor charged with the investigation of the case, for instance, the collection of evidence concerning the persons accused, and with the prosecution of all cases before the tribunal. They also have a registry which manages the administration of the respective tribunal.

4. The International Tribunal for the Law of the Sea (ITLOS)

On 28 July, 1996, the United Nations Conven­tion on the Law of the Sea (UNCLOS) entered into force. This Convention established a legal framework to regulate the ocean, its uses and resources. Part XV of the Convention creates a comprehensive system for the settlement of disputes that might arise with respect to the interpretation and application of the Convention. States are required to settle such disputes by peaceful means, as prescribed by the UN Charter. Within this system, the International Tribunal of the Law of the Sea (ITLOS) occupies a central place. In addition, two arbitral courts were constituted in accordance with Annexes VII and VIII of the Convention. The mechanism of the UNCLOS is characterized by the attempt to set up a mandatory scheme by which state parties to the Convention are obliged to settle their disputes by legal means, resorting either to the ITLOS, the ICJ or, if applicable, to one of the arbitral courts established under the system.

The ITLOS, established in Hamburg, is an independent judicial body mandated to adjudicate disputes arising out of the inter­pretation and application of the UNCLOS. It consists of 21 judges from various countries. The ITLOS is organized in three primary bodies: the chamber of summary procedure, the chamber for fisheries disputes and the chamber for marine environment disputes. Additional chambers may be established to deal with specific matters (e.g. disputes over seabed mining). An analysis of the activities of the ITLOS shows a mixed record. When measured by the number of decisions rendered, it has to be said that, since its creation, the Tribunal has delivered only very few judgements. On the other hand, it assumes an increasingly important function in cases of litigation, either by imposing provisional measures or by ordering the prompt release of vessels.

Regional Human Rights Courts

The European Court of Human Rights (ECHR)

The ECHR⁶ is to be considered a unique insti­tution on the global scale because it enables citizens of the countries having signed and ratified the European Convention on Human Rights to bring complaints against their own state before the court. The ECHR was established in the framework of the Council of Europe, a regional organization with a special vocation in the field of human rights, democracy and the rule of law. The ECHR is competent to pass judgement on purported violations of the rights enshrined in the said convention. Its judgements generally state whether a human rights violation occurred in a particular case. Within the framework of the European Convention on Human Rights, the court also has the competence to deal with complaints filed by a state against another state on the argument that the latter has violated the rights guaranteed in the convention. However, when compared to the cases submitted by individual plaintiffs, these ‘state complaints’ play only a minor role in the jurisdiction of the ECHR.

The ECHR has its seat in Strasbourg, France, where the headquarters of the Council of Europe are located. The court consists of 40 members, a number that is equal to that of the state parties to the European Convention on Human Rights. The judges are elected by the Parliamentary Assembly of the Council of Europe on the basis of proposals submitted by governments. The judges are elected for a renewable mandate of eight years. The court is organized in four sections and consists of several chambers, each composed of seven judges. The judiciary function is primarily performed by the chambers. An overall assessment of the activities of the ECHR shows an impressive record of success. Over the years, the Court, by passing judgements on individual complaints by citizens against their own state, has developed a rich body of jurisprudence, which in turn has exercised an important influence on the respective legislation and administrative practice of the states concerned. As an international instance of last resort, the ECHR has also significantly contributed to standard setting in the field of human rights and, more generally, to the promotion of the rule of law in the vast area under its jurisdiction, now stretching from the Atlantic to the Pacific Ocean. It is noteworthy that, before a state is admitted to the Council of Europe, it must accept the human rights regime of the European Convention on Human Rights. In other words, accession to the Convention and its additional protocols is considered a precondition for membership in the Council of Europe. Accession to the Convention thus implies the acceptance of stringent obligations. The state in question is obliged to honor the human rights provisions enshrined in the convention as well as to accept the jurisdiction of the ECHR. In this way, the countries in transition in Europe that joined the Council of Europe were all committed to the system of human rights protection under the convention. However, this positive development expanding the geographic area of application of the European Convention on Human Rights to Vladivostok in the East has led to a dramatic increase in ‘Eastern European cases’ brought before the Court. As of January 2007, the ECHR is overburdened with about 90,000 pending cases, 50,000 of which were registered in 2006 only. Unless a fundamental reform of the procedures of the ECHR making them leaner and more efficient can be realized, there is a real danger that the Court will virtually collapse under the weight of its unfinished business.

The Inter-American Court of Human Rights The American Convention on Human Rights, signed in 1969, established a catalogue of human rights and fundamental freedoms and created a control system to monitor the implementation of its obligations by the contracting states. The Convention which entered into force in 1978 provides for two control mechanisms: the Inter-American Commission on Human Rights and the Inter­American Court of Human Rights. The latter body, consisting of seven judges, has

been sometimes compared to the European Court of Human Rights. A closer look at its competence, however, reveals that it does not possess jurisdiction with regard to complaints by individuals against their own state. The Inter-American Court of Human Rights is only competent to mediate disputes in human rights matters and to give advisory opinions upon request, either by a contracting party to the Convention or by a member state of the Organization of American States (OAS). Without having jurisdiction in cases of complaints by individ­uals, the monitoring instruments of the Inter­American Human Rights system are definitely weaker than the European Court of Human Rights.

Regional integration and adjudication

The European Court of Justice (ECJ)

Within the framework of the European inte­gration, the ECJ (Kennedy, 2006) constitutes the judicial body which makes sure that EU legislation is interpreted and applied in the same way in all EU member states. The Court was set up in 1952 by the European treaty establishing the European Coal and Steel Community (ECSC). Over time, it has acquired a number of important new competences. By upholding community law, the ECJ has the power to give legal judgements on cases brought before it. Its core function consists in settling legal disputes between EU member states, EU institutions, businesses and individuals.

The Court is composed of 27 judges, so that the legal systems of all member states are adequately represented. The judges must qualify for appointment to the highest judicial office in their respective countries and are appointed on the basis of an agreement between the governments of the EU member states. The renewable term of office of the judges is six years.

The bulk of the judicial function is performed in the Grand Chamber of 13 judges or in chambers of three or five judges. In addition to the judges, eight magistrates, the so-called ‘advocates general' assist the ECJ in shaping its decisions. They present their reasoned opinion to the court in public hearings and prepare the deliberations of the judges in a given case.

In 1989, the ‘Court of First Instance'⁷ was created as a subsidiary body of the ECJ. The main task of this court is to pass judgements on certain types of cases, for instance, all actions brought by private individuals, companies or some organizations. The ‘Court of First Instance' is also competent to give judgements on cases relating to competition law.

The most common cases brought before the ECJ are (1) actions for failure to fulfil an obligation of a member state under EU law; (2) actions for annulment of a particular EU law on the argument that it is illegal; (3) actions for failure to act in certain cases where an EU institution fails to make decisions and, last but not least; (4) references under the preliminary ruling procedure. If, under this procedure, a national court of a member state is in doubt about the validity or interpretation of an EU law it may, or sometimes must, resort to the ECJ for advice (preliminary ruling). In this way, the Court ensures that the national courts do not interpret EU law differently or give rulings which deviate from the case law of the ECJ.

The importance of the ECJ in advancing EU law is such that it has sometimes been described as the ‘engine of community law'. Member states are obliged to submit all legal disputes on the interpretation and application of community law to the ECJ. They must not seek legal redress in such disputes before another international tribunal.