INTERNATIONAL JUDICIAL INSTITUTION

International judicial institutions can be divided into courts, arbitral tribunals and quasi-judicial
institutions. Courts are permanent bodies, with near the same composition for each case. Arbitral
tribunals, by contrast, are constituted anew for each case. Both courts and arbitral tribunals can
make binding decisions. Quasi-judicial institutions, by contrast, make rulings on cases, but these
rulings are not in themselves legally binding; the main example is the individual complaints
mechanisms available under the various UN human rights treaties.

Institutions can also be divided into global and regional institutions.

The listing below incorporates both currently existing institutions, defunct institutions that no
longer exist, institutions which never came into existence due to non-ratification of their
constitutive instruments, and institutions which do not yet exist, but for which constitutive
instruments have been signed. It does not include mere proposed institutions for which no
instrument was ever signed.

International Court of Justice

The International Court of Justice is the principal judicial organ of the United Nations (UN). It
settles legal disputes between member states and gives advisory opinions to authorized UN
organs and specialized agencies. It comprises a panel of 15 judges elected by the General
Assembly and Security Council for nine-year terms. It is seated in the Peace Palace in The
Hague, Netherlands.1

Established in 1945 by the UN Charter, the court began work in 1946 as the successor to the
Permanent Court of International Justice. The Statute of the International Court of Justice,
similar to that of its predecessor, is the main constitutional document constituting and regulating
the court.

The court's workload covers a wide range of judicial activity. After the court ruled that the
United States's covert war against Nicaragua was in violation of international law (Nicaragua v.
United States), the United States withdrew from compulsory jurisdiction in 1986 to accept the
court's jurisdiction only on a case-by-case basis.2 Chapter XIV of the United Nations Charter
authorizes the UN Security Council to enforce Court rulings. However, such enforcement is

1
"The Court, International Court of Justice", www.icj-cij.org.
2
Churchill, Ward. A Little Matter of Genocide. San Francisco: City Lights Books, 1997.

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subject to the veto power of the five permanent members of the Council, which the United States
used in the Nicaragua case.3

Composition

The ICJ is composed of fifteen judges elected to nine-year terms by the UN General Assembly
and the UN Security Council from a list of people nominated by the national groups in the
Permanent Court of Arbitration. The election process is set out in Articles 4–19 of the ICJ
statute. Elections are staggered, with five judges elected every three years to ensure continuity
within the court. Should a judge die in office, the practice has generally been to elect a judge in a
special election to complete the term.

No two judges may be nationals of the same country. According to Article 9, the membership of
the court is supposed to represent the "main forms of civilization and of the principal legal
systems of the world". Essentially, that has meant common law, civil law and socialist law (now
post-communist law).

There is an informal understanding that the seats will be distributed by geographic regions so
that there are five seats for Western countries, three for African states (including one judge of
francophone civil law, one of Anglophone common law and one Arab), two for Eastern
European states, three for Asian states and two for Latin American and Caribbean states.4 For
most of the court's history, the five permanent members of the United Nations Security Council
(France, Russia, China, the United Kingdom, and the United States) have always had a judge
serving, thereby occupying three of the Western seats, one of the Asian seats and one of the
Eastern European seats. Exceptions have been China not having a judge on the court from 1967
to 1985, during which time it did not put forward a candidate, and British judge Sir Christopher
Greenwood being withdrawn as a candidate for election for a second nine-year term on the bench
in 2017, leaving no judges from the United Kingdom on the court. Greenwood had been
supported by the UN Security Council but failed to get a majority in the UN General Assembly.
Indian judge Dalveer Bhandari instead took the seat.

Article 6 of the Statute provides that all judges should be "elected regardless of their nationality
among persons of high moral character" who are either qualified for the highest judicial office in
their home states or known as lawyers with sufficient competence in international law. Judicial
independence is dealt with specifically in Articles 16–18. Judges of the ICJ are not able to hold
any other post or act as counsel. In practice, members of the court have their own interpretation
of these rules and allow them to be involved in outside arbitration and hold professional posts as
long as there is no conflict of interest. A judge can be dismissed only by a unanimous vote of the

3
United Nations Security Council, Provisional Verbatim Record of the Two Thousand Seven Hundred and
Eighteenth Meeting, p.51.
4
Harris, D. Cases and Materials on International Law, 7th ed. (2012, London) p. 839.

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other members of the court.5 Despite these provisions, the independence of ICJ judges has been
questioned. For example, during the Nicaragua case, the United States issued a communiqué
suggesting that it could not present sensitive material to the court because of the presence of
judges from Eastern bloc states.6

Judges may deliver joint judgments or give their own separate opinions. Decisions and Advisory
Opinions are by majority, and, in the event of an equal division, the President's vote becomes
decisive, which occurred in the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict (Opinion requested by WHO), [1996] ICJ Reports 66. Judges may also deliver separate
dissenting opinions.

Ad hoc judges

Article 31 of the statute sets out a procedure whereby ad hoc judges sit on contentious cases
before the court. The system allows any party to a contentious case (if it otherwise does not have
one of that party's nationals sitting on the court) to select one additional person to sit as a judge
on that case only. It is thus possible that as many as seventeen judges may sit on one case.

The system may seem strange when compared with domestic court processes, but its purpose is
to encourage states to submit cases. For example, if a state knows that it will have a judicial
officer who can participate in deliberation and offer other judges local knowledge and an
understanding of the state's perspective, it may be more willing to submit to the jurisdiction of
the court. Although this system does not sit well with the judicial nature of the body, it is usually
of little practical consequence. Ad hoc judges usually (but not always) vote in favour of the state
that appointed them and thus cancel each other out.7

Chambers

Generally, the court sits as full bench, but in the last fifteen years, it has on occasion sat as a
chamber. Articles 26–29 of the statute allow the court to form smaller chambers, usually 3 or 5
judges, to hear cases. Two types of chambers are contemplated by Article 26: firstly, chambers
for special categories of cases, and second, the formation of ad hoc chambers to hear particular
disputes. In 1993, a special chamber was established, under Article 26(1) of the ICJ statute, to
deal specifically with environmental matters (although it has never been used).

5
CJ Statute, Article 18(1).
6
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v USA), [1986] ICJ
Reports 14, 158–60.
7
Posner, E. A., and De Figueiredo, M. F. P. (June 2005). "Is the International Court of Justice Biased? "Journal of
Legal Studies. University of Chicago. 34.

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Ad hoc chambers are more frequently convened. For example, chambers were used to hear the
Gulf of Maine Case (Canada/US).8 In that case, the parties made clear they would withdraw the
case unless the court appointed judges to the chamber acceptable to the parties. Judgments of
chambers may either less authority than full Court judgments or diminish the proper
interpretation of universal international law informed by a variety of cultural and legal
perspectives. On the other hand, the use of chambers might encourage greater recourse to the
court and thus enhance international dispute resolution.

Jurisdiction of the International Court of Justice

As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the
court's statute. Non-UN members may also become parties to the court's statute under the Article
93(2) procedure. For example, before becoming a UN member state, Switzerland used this
procedure in 1948 to become a party, and Nauru became a party in 1988. Once a state is a party
to the court's statute, it is entitled to participate in cases before the court. However, being a party
to the statute does not automatically give the court jurisdiction over disputes involving those
parties. The issue of jurisdiction is considered in the three types of ICJ cases: contentious issues,
incidental jurisdiction, and advisory opinions.9

When deciding cases, the court applies international law as summarized in Article 38 of the ICJ
Statute, which provides that in arriving at its decisions the court shall apply international
conventions, international custom and the "general principles of law recognized by civilized
nations." It may also refer to academic writing ("the teachings of the most highly qualified
publicists of the various nations") and previous judicial decisions to help interpret the law
although the court is not formally bound by its previous decisions under the doctrine of stare
decisis. Article 59 makes clear that the common law notion of precedent or stare decisis does not
apply to the decisions of the ICJ. The court's decision binds only the parties to that particular
controversy. Under 38(1)(d), however, the court may consider its own previous decisions.

If the parties agree, they may also grant the court the liberty to decide ex aequo et bono ("in
justice and fairness"),10 granting the ICJ the freedom to make an equitable decision based on
what is fair under the circumstances. That provision has not been used in the court's history. So
far, the International Court of Justice has dealt with about 130 cases.

8
Rules of Court of the International Court of Justice 1978 Archived 26 November 2005 at the Wayback Machine.
9
J. G. Merrills (2011), International Dispute Settlement. New York: Cambridge University Press. pp. 116–134. ISBN
978-0521153393.
10
Statute of the International Court of Justice, Article 38(2).

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Procedure

The ICJ is vested with the power to make its own rules. Court procedure is set out in the Rules of
Court of the International Court of Justice 1978 (as amended on 29 September 2005).11

Cases before the ICJ will follow a standard pattern. The case is lodged by the applicant, which
files a written memorial setting out the basis of the court's jurisdiction and the merits of its claim.
The respondent may accept the court's jurisdiction and file its own memorial on the merits of the
case.

Preliminary objections

A respondent that does not wish to submit to the jurisdiction of the court may raise preliminary
objections. Any such objections must be ruled upon before the court can address the merits of the
applicant's claim. Often, a separate public hearing is held on the preliminary objections and the
court will render a judgment. Respondents normally file preliminary objections to the
jurisdiction of the court and/or the admissibility of the case. Inadmissibility refers to a range of
arguments about factors the court should take into account in deciding jurisdiction, such as the
fact that the issue is not justiciable or that it is not a "legal dispute".

In addition, objections may be made because all necessary parties are not before the court. If the
case necessarily requires the court to rule on the rights and obligations of a state that has not
consented to the court's jurisdiction, the court does not proceed to issue a judgment on the merits.

If the court decides it has jurisdiction and the case is admissible, the respondent then is required
to file a Memorial addressing the merits of the applicant's claim. Once all written arguments are
filed, the court holds a public hearing on the merits.

Once a case has been filed, any party (usually the applicant) may seek an order from the court to
protect the status quo pending the hearing of the case. Such orders are known as Provisional (or
Interim) Measures and are analogous to interlocutory injunctions in United States law. Article 41
of the statute allows the court to make such orders. The court must be satisfied to have prima
facie jurisdiction to hear the merits of the case before it grants provisional measures.

Applications to intervene

In cases in which a third state's interests are affected, that state may be permitted to intervene in
the case and participate as a full party. Under Article 62, a state "with an interest of a legal

11
Schwebel S "Ad Hoc Chambers of the International Court of Justice" (1987) 81 American Journal of International
Law 831.

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nature" may apply; however, it is within the court's discretion whether or not to allow the
intervention. Intervention applications are rare, and the first successful application occurred only
in 1991.

Judgment and remedies

Once deliberation has taken place, the court issues a majority opinion. Individual judges may
issue concurring opinions (if they agree with the outcome reached in the judgment of the court
but differ in their reasoning) or dissenting opinions (if they disagree with the majority). No
appeal is possible, but any party may ask for the court to clarify if there is a dispute as to the
meaning or scope of the court's judgment.

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 International Criminal Court

The International Criminal Court (ICC or ICCt) is an intergovernmental organization and

international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to
prosecute individuals for the international crimes of genocide, crimes against humanity, and war
crimes. The ICC is intended to complement existing national judicial systems and it may
therefore only exercise its jurisdiction when certain conditions are met, such as when national
courts are unwilling or unable to prosecute criminals or when the United Nations Security
Council or individual states refer situations to the Court. The ICC began functioning on 1 July
2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty
which serves as the ICC's foundational and governing document. States which become party to
the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there
are 123 states which are party to the Rome Statute and therefore members of the ICC.

The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the
Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in
the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed
by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division.
The Registry is headed by the Registrar and is charged with managing all the administrative
functions of the ICC, including the headquarters, detention unit, and public defense office.

The Office of the Prosecutor has opened ten official investigations and is also conducting an
additional eleven preliminary examinations. Thus far, 39 individuals have been indicted in the
ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan
president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, Ivorian president Laurent Gbagbo,
and DR Congo vice-president Jean-Pierre Bemba.

The ICC has faced a number of criticisms from states and civil society, including objections
about its jurisdiction, accusations of bias, the fairness of its case selection and trial procedures,
and its effectiveness.

Structure

The ICC is governed by an Assembly of States Parties, which is made up of the states which are
party to the Rome Statute.12 The Assembly elects officials of the Court, approves its budget, and
adopts amendments to the Rome Statute. The Court itself, however, is composed of four organs:
the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

State parties

As of October 2017, 123 states are parties to the Statute of the Court, including all the countries
of South America, nearly all of Europe, most of Oceania and roughly half of Africa. Burundi was

12
International Criminal Court. "Assembly of States Parties".

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a member state, but withdrew effective 27 October 2017. A further 31 countries have signed but
not ratified the Rome Statute. The law of treaties obliges these states to refrain from "acts which
would defeat the object and purpose" of the treaty until they declare they do not intend to
become a party to the treaty. Four signatory states—Israel, Sudan, the United States and
Russia—have informed the UN Secretary General that they no longer intend to become states
parties and, as such, have no legal obligations arising from their signature of the Statute.

41 United Nations member states have neither signed nor acceded to the Rome Statute. Some of
them, including China and India, are critical of the Court. Ukraine, a non-ratifying signatory, has
accepted the Court's jurisdiction for a period starting in 2013.

Assembly of States Parties

The Court's management oversight and legislative body, the Assembly of States Parties, consists
of one representative from each state party.13 Each state party has one vote and "every effort" has
to be made to reach decisions by consensus.14 If consensus cannot be reached, decisions are
made by vote.15 The Assembly is presided over by a president and two vice-presidents, who are
elected by the members to three-year terms.

The Assembly meets in full session once a year, alternating between New York and The Hague,
and may also hold special sessions where circumstances require. Sessions are open to observer
states and non-governmental organizations.

The Assembly elects the judges and prosecutors, decides the Court's budget, adopts important
texts (such as the Rules of Procedure and Evidence), and provides management oversight to the
other organs of the Court. Article 46 of the Rome Statute allows the Assembly to remove from
office a judge or prosecutor who "is found to have committed serious misconduct or a serious
breach of his or her duties" or "is unable to exercise the functions required by this Statute".16

The states parties cannot interfere with the judicial functions of the Court. Disputes concerning
individual cases are settled by the Judicial Divisions.

Jurisdiction and admissibility

The Rome Statute requires that several criteria exist in a particular case before an individual can
be prosecuted by the Court. The Statute contains three jurisdictional requirements and three
admissibility requirements. All criteria must be met for a case to proceed.

13
Article 112 of the Rome Statute.
14
Ibid.
15
Ibid.
16
Article 46 of the Rome Statute.

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There are three jurisdictional requirements in the Rome Statute that must be met before a case
may begin against an individual. The requirements are (1) subject-matter jurisdiction (what acts
constitute crimes), (2) territorial or personal jurisdiction (where the crimes were committed or
who committed them), and (3) temporal jurisdiction (when the crimes were committed).

Subject-matter jurisdiction requirements

The Court's subject-matter jurisdiction means the crimes for which individuals can be
prosecuted. Individuals can only be prosecuted for crimes that are listed in the Statute. The
primary crimes are listed in article 5 of the Statute and defined in later articles: genocide (defined
in article 6), crimes against humanity (defined in article 7), war crimes (defined in article 8), and
crimes of aggression (defined in article 8 bis) (which is not yet within the jurisdiction of the
Court; see below).17 In addition, article 70 defines offences against the administration of justice,
which is a fifth category of crime for which individuals can be prosecuted.

17
Rome Statute, Article 5.

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 International Tribunal for the Law of the Sea

The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization
created by the mandate of the Third United Nations Conference on the Law of the Sea. It was
established by the United Nations Convention on the Law of the Sea, signed at Montego Bay,
Jamaica, on December 10, 1982. The Convention entered into force on November 16, 1994, and
established an international framework for law over "all ocean space, its uses and resources".
The tribunal is based in Hamburg, Germany. The Convention also established the International
Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of
national jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone and the
continental shelf. There are currently 167 signatories, 166 states plus the European Union.

Composition

According to its founding statute, the Tribunal has a set of 21 serving judges from a variety of
states parties.

At the request of Chile and the European Union, the Tribunal set up a special chamber composed
of 5 judges to deal with the Case concerning the Conservation and Sustainable Exploitation of
Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community).

By agreement of the parties Ghana and Ivory Coast, the Tribunal formed a special chamber
composed of 5 judges to deal with the Dispute Concerning Delimitation of the Maritime
Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire).

International arbitral tribunals

Permanent Court of Arbitration

The Permanent Court of Arbitration (PCA) is an intergovernmental organization located at The

Hague in the Netherlands. The PCA is not a court in the traditional sense but provides services of
arbitral tribunal to resolve disputes that arise out of international agreements between member
states, international organizations or private parties. The cases span a range of legal issues
involving territorial and maritime boundaries, sovereignty, human rights, international
investment, and international and regional trade. The PCA is constituted through two separate
multilateral conventions with a combined membership of 121 states. The organization is not a
United Nations agency, but PCA is an official United Nations Observer.

The Peace Palace was built from 1907 to 1913 for the PCA in The Hague. In addition, the
building houses the Hague Academy of International Law, Peace Palace Library and the
International Court of Justice.
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Procedure of Arbitration

In the Articles 30-57 of the Hague Convention of 1899 the rules of arbitration procedure are
outlined. These rules are an adapted version of pre-existing treaties among the states. They were
amended in 1907, the creation of a summary procedure for simple cases being the most
conspicuous change, and were relevant in the 1920s development of rules for the Court of
International Justice.

The first act of parties before the PCA is the submission of the so-called "compromisis", stating
the issue and the competence of the arbitrator. Proceedings are then conducted in two phases:
written pleadings and oral discussion. The Court retires once the debate is over to deliberate and
conclude the case by a simple majority of votes.

The decision is published as a writ, along with any dissenting opinions. Early Court decisions
were countersigned by the arbitrators themselves, but in 1907, that responsibility was passed to
the president and secretary (of the PCA). The writ is read to a public session in the presence of
the agents and lawyers of the parties to the case. The decision is binding on the parties, and there
is no mechanism for appeal.

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