INTERNATIONAL LAW ESSAY

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Executive summary
The ICJ has been one faced with a number of challenges. For one, the court is governed by a statute that is all about the willingness of states to join the court- that is, to accept the court’s jurisdiction. Several scholars have questioned the court’s jurisdiction and how the limitations in jurisdiction undermine the effectiveness of the court. In general, a court with a limited jurisdiction or a court with too few roles to play is insignificant. The reason is that the states and other bodies have very many legal issued and they would appreciate assistance in these matters. The court, established to settle disputes in a bid to ensure that peace prevailed, is deemed worthless because the significance of its roles is diminishing. In essence, a world court needs more powers and a wide jurisdiction to enable is functioning effectively. As for the ICJ, its worthlessness arises from limited jurisdictions.
Introduction
The ICJ (henceforth the Court) can be said to be among the world’s controversial bodies owing to the fact that several issues have been raised pertinent to its nature, powers, and effectiveness in carrying out its duties. The discussion of these issues is inevitable, mainly because the survival and the power of the court largely depends on the perception of the members and that of the entire world. If the court is viewed as ineffective, then the members will relent in using the case to settle disputes, and the non-members might not be encouraged to use the court for its various purposes. Being the primary judicial organ of the UN, the court would be expected to be a manifestation of what an ideal judicial system should be like, and perhaps demand emulation from the state members’ judicial systems. The influence of the court has been seen to be declining as time goes by, and its importance as perceived by the various states is going down. The questions that arise here is whether the current state of the court in terms of its functions and jurisdiction is the ideal state for an international court.
The main issue with the court is with its jurisdiction. Is the court’s jurisdiction adequate to allow it to function effectively? As for the issue of jurisdiction, it can be argued that the court has a limited jurisdiction mainly because the statute prescribes means of accepting or subscribing to the court’s jurisdiction that are relaxed and that do not motivate or force member states to accept the jurisdiction ICJ. In this essay, the argument is that the ICJ is worthless because of its limited jurisdiction. In this case, the propositions are that the court has a limited jurisdiction and that the worth of the court, or its usefulness is based on the jurisdiction. That is to say that the court does not have adequate jurisdiction that can make it much more useful as a world court. As such, various aspects pertaining to the court will feature in this essay, and these will include the background to the court where a brief history of the emergence and development of the court will be discussed. Secondly, the court’s jurisdiction issues will be discussed to lay a foundation of the argument of the paper, and an analysis or discussion will then follow where the issue of the jurisdiction will be related to the worth of the court- that is, the arguments for and against the statement will be presented.
Background to the ICJ
The ICJ cannot be said to be the first world court to ever be created. However, it can be considered to be a successor of the defunct Permanent Court of International Justice (henceforth PCIJ) that began its operations in the year 1922. The PCIJ operated for just about a decade before it lost its relevance to the member governments due to issues of the worldwide depression at the time, as well as the rise of fascism. Just like the League of Nations, the PCIJ lost its operations during the World War II. After the war, there was a need for a stronger body, and ICJ was created independent of the UN charter, although referenced by the same.
The creation of the ICJ portrays the culmination of the development of dispute settlement methods in the pacific in the ‘classical times’. In other words, the need for a world court emanated from the disputes in the pacific that necessitated the need for better methods of dispute resolution other than war or political methods. As per the article 33 of the UN charter, there are various methods that can be used to solve international disputes, as well as other civil disputes. Among these methods are as listed below:
Mediation
Enquiry
Negotiation conciliation
Judicial settlement
Arbitration
Resort to regional agencies/arrangements
These methods are peaceful; in nature, and the prime aim here was to avoid as much as possible eruptions of political actions/wars between countries. Most of these methods entail the involvement of a third party to the disputes, whereby the cases or arguments are to be heard from both sides and a neutral body or organ, or even a state, suggests a solution that will be appealing to the disputing parties.
The history of the court is tainted with tales of wars that were of international magnitude often with great losses of lives and property. The absence of peace and the understanding that a peaceful coexistence could lead to prosperity and wellbeing may have forced the affected parties to seek means of finding peace. Nations and regions were crying for peace, and that peace could only be found if there were better ways to solve international disputes that were in most cases territorial. A common phenomenon of the world wars is the emergence of independent states, and these states are the ones that have spearheaded the efforts to subject the governments to a common rule of law. There needed to be a peaceful co-existence of the independent states whereby none was to be strong enough to impose its will on others. This being the case, it was impossible for the independent states to contact each other or to know what to expect from each other- that is, without standards of conduct. As such, the emergence of the United Nations that shelters the ICC was with one key goal; to provide a medium where states would contact each other based on a common set of rules and standards.
The contacts between the states was intended to be less destructive- that is, the drive behind the development of the court was the quest for less destructive ways of solving interstate conflicts. As such, the ICJ has two primary functions- that is, to aid in interstate dispute resolution, and to provide advisory opinions to specific international organizations. The key limitation facing the ICJ in the realization of these functions is the absence of a common international philosophy supporting the respect for a single system of universal law. This is to imply that not all countries recognize and subscribe to the court despite the fact that the court offers the best means of resolving interstate conflicts. As will be discussed earlier in this paper, the issue of jurisdiction and the underlying limitations have been the key barriers to the full functioning of the court.
ICC Jurisdiction
The court has a jurisdiction that is twofold in nature. As mentioned above, the court is meant to resolve interstate disputes ant to offer advisory opinion on the legal questions. The court also acts as an appellate court, though this is not clearly outlined in the UN charter. The first jurisdiction of the court is called the contentious jurisdiction. As per the article 34/1 of the statute, it is only the states that can become parties to cases presented before the court. The effect of this provision is that it prohibits individuals and the international organizations access to the court. The contentious jurisdiction has many implications, among these being the fact that a nation that is a non-member of the UN can be a party to the conditions of the statute that are to be outlined by the general assembly upon the recommendations of the Security Council. Another implication here is that a country that is both not a member to the UN and the statute of the court can be allowed to gain the recourse of the court pursuant to the resolve 9 by the Security Council October 1946.
It should be understood that, under the contentious jurisdiction, a country does not automatically accept the jurisdiction of the ICJ by becoming a party to the statute of the court. It is just one prerequisite to becoming a party to the court. Another thing to understand is that issue of the states’ consent to the court’s jurisdiction. This has the implication that the court will only have jurisdiction over a country only if that country has given its consent. Otherwise, the court will have no jurisdiction. The state consent can be given in any one of the several ways. A state can give its consent before the dispute has arisen through a compromissory clause in a treaty or by giving a declaration as per the article 36/2 of the court’s statute. Another way of giving a consent is after the disputes have arisen, and this will be either by way of a special agreement among the disputing states, or in responding to the unilateral recourse- that is, of a conflict to the ICJ. In a case where the court has a jurisdiction, the issue at hand will be settled by the decision of the court.
The second jurisdiction is the advisory jurisdiction. This arises from the fact that apart from solving disputes, the court also gives advisory opinion-that is, on any legal question referred to it. Pursuant to the article 62 of the statute, ‘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 UN charter to make such a request. For example, the article 96 of the UN charter gives provisions that the GA or the SC may request the court to provide an advisory opinion on a legal matter. More so, other bodies of the UN are given the access to the advisory opinion from the ICJ.
Unlike in the contentious jurisdiction, the advisory jurisdiction does not aim at resolving disputes between the states. On the contrary, it offers legal advice to the bodies or institutions or the organs that request it. A key thing to note here is that the advisory jurisdiction is not limited to the UN for its internal operations because it is not so states either in the statute of the court or in the UN charter. The only limitation ere is ‘legal question’ which is requested by an organization that is entitled to it. Another thing is that the advisory opinion has no binding effect, even though they carry a great legal weight.
Does the limited jurisdiction of ICJ render it worthless?
The above discussed issues of the jurisdictions of the court lead to one conclusion- that is, the court has limited jurisdiction. Before looking at the limited jurisdictions of the ICJ, it is important also to understand the nature of jurisdiction. As per the public international law, jurisdiction as a concept has traditionally been linked with the notion of sovereignty. Jurisdiction is what allows the states to effect the sovereign independence endowed upon them by an international body or systems of formally equal states. The concept of sovereignty has several implications, and one of the implications is that a sovereign state will make and enforce laws on persons or activities in which the states have a legal interest. As such, it becomes an enabling concept pertinence to the exercising of jurisdiction. However, the concept also implies a restraining device that informs on the adoption of the international rules that restrain the exercise of the state jurisdiction. This is to indicate that jurisdiction has to do with the territorial dimension of sovereignty whereby sovereignty will be considered in devising permissive and prohibitive rules. Jurisdiction also has several forms, and these include prescriptive, adjudicatory, enforcement, and functional. The most common of these is the prescriptive or a legislative form that refers to the power of nations to make their laws.
With this background in mind, then the jurisdiction of the court can be determined. From the literature provided in the section above, the court has only two jurisdictions, and these are resolving interstate disputes and giving advisory opinions to organs that allowed to seek it from the court. The implication here is that the mandate of the court is limited to only the two functions. Contrasting this with the states’ judicial systems, we can find that the court indeed performs too few functions as a world court, and the problems that it can solve are, as such, limited. The section above about the jurisdictions of the court has mentioned the contentious jurisdiction of the court. However, it is also mentioned that the contentious jurisdiction gives powers to the court to determine cases between states, meaning that the parties can only be states. This is to say that the only contentious cases that can be heard by the court is only between states whereby individuals and international bodies have no direct access. The key difference between the court and the states’ court arises here whereby the judicial systems of the states’ offer direct access to the courts to organizations and individuals.

The limitation is a reflection of the fact that the court has adopted a state-centered view international law. Even though there are no limits on the kinds of interstate legal disputed, there is still a limitation in the sense that conflicts involving individuals or organizations cannot be heard. Since jurisdiction can be termed as the foundation of international adjudication, legal theories or compelling facts will be of no good if the court cannot hear them. In the history of the court, only a few cases have been heard and the prime reason is that most of the cases do not go through the jurisdictional filters necessary for the court’s consideration. What use then is the court if in a lifetime only a few cases will be heard while disputed erupt every year between the states? These are not the expectations of the ICJ as a world court and as the prime judicial body of the UN.
The limitations of contentious jurisdiction are worsened by the fact that the jurisdiction must be consented by the states. This further limitation implies that if the states do not want their case to be heard by the court, they will have to simply ignore it and pursue other means of resolving disputes even if it means the violent means. In that case, the creation of the court to solve disputes was meant for only those countries that would feel comfortable having their cases heard by the court, while those that do not feel comfortable will then seek their own means. What use then is a judicial system where its adjudication function relies on the consent of the member? For the states’ judicial systems, court cases do not have such a limitation and legal disputes arising between two parties, be it individuals or organizations, will only be handled by the courts. In some instances, the states’ courts have summoned individuals or organizations, seemingly violating the laws, or the states’ courts will give orders that particular individuals or organizations are breaking the law. In such a case, the parties’ consent is not sought. If the court had such powers, then it would have been very useful and many interstate clashes would have been resolved. Because this is not the case, the states will more often pursue national interests in the resolution of disputes.
These limitations arise not only in the contentious jurisdiction, but also on the advisory jurisdiction. It has been mentioned that the other function of the court is to offer advisory opinion to legal questions posed to it by organs ‘allowed direct access’ to the advisory opinions. The key words here are the organizations that allowed access to the advisory opinion implying that it is not every organ, individual, or organization that will approach the court for an advisory opinion. These bodies or organs are limited and this translates directly into the issue of limited jurisdiction. In this case, the court becomes useless again because various international bodies would want to seek advisory opinions, but the court restricts them. The question here is, why limit the organizations seeking an advisory opinion? This question cannot get a ready answer, and so the only thing to think about here is the limited use of the court. International corporations, for example, operate across borders and would want to be knowledgeable on the various legal issues that would affect its operations in foreign countries, for example, in terms of resource exploitation. It would have appeared more prudent for the court to cater for the needs of everyone if it is to be considered useful by the nations. Just like the previous attempts to establish a world court, the ICJ is based on a very weak foundation whereby its usefulness is declining every day. At least, all the international NGOs could have been granted direct access to the ICJ’s advisory opinion, even if the same was to be denied to the individuals or international business organizations.
Another question that arises pertinence to the court’s jurisdiction is on the compulsory jurisdiction. Is the jurisdiction truly compulsory? The answer to this question could absolutely be no because, as discussed above, the jurisdiction of the court is determined by several factors. One of these factors is the consent of the states, and another one is the terms and conditions set forth by the parties to the dispute. In that case, the notion of compulsory jurisdiction arises after the parties as consented to the ICJ’s jurisdiction, a situation where the states, then will have to abide by the ruling of the court. The legal obligation that arises after the consent of the states to the jurisdiction of that court is the root of the term compulsory jurisdiction. As such, the notion of compulsory jurisdiction does not imply things such as when a state subscribes to the UN charter it becomes a compulsory party to the court. If such were the situations, then the jurisdiction would not be as limited as it is now. Even if states accept the compulsory jurisdiction, they do not freely do so and most of them will accept it but with various reservations.
All in all, the statute of the court gives the states more say that itself has in determining who becomes party to the court and who does not. It would be expected that the states will consider various factors before they can accept to become members, and this would include the possible outcomes and how they would favor the state. If a state deems the outcomes of the court ruling would deny it of its key interests in a dispute, it would dare not accept the court’s jurisdiction even if the other party to the dispute is for that idea. If it is an aggressive state colliding with another state over boundaries or other interests, it would not be expected that such a state would allow the court to intervene because it would be sure to have its interests nullified. The court can be deemed, therefore, powerless and useless in in handling state aggression towards other states. It is not once that states have opted to handle their matters without consideration to the court, and this will lead to the question of why then is there a world court that does not act at its will and convenience to stop the states from using violent means of resolving disputes? Or why should there be a court that does not give remedies to states that have become victims of aggression? Since these questions get no immediate answer, it would be easy to dismiss the court as entirely worthless.
Conclusion
The functionality of any court and its impact in ensuring peace and justice depends on the jurisdiction it has. A court without jurisdiction is a court that is of no use to anyone. A court that can only act under the consent of the parties gives the illusion that the parties have more say over their dispute than the court, and the parties would tend to pursue their interests first. This is the argument posed in this essay in reference to the ICJ. The essay has discussed on the worthiness of the court in the context of its jurisdiction, and has taken the position that the court is worthless. A brief background to the court has been given where it has been determined that court emerged to replace previous courts that became defunct due to non-functionality. The need for a world court was to ensure peace prevailed in the world, as it was to help states settle their disputes amicably without the use of aggression or violence.  The world wars are the main tale behind the emergence of the court.
Also discussed briefly in the essay is the issue of the jurisdiction of the ICJ, where it has been determined that the court has two primary jurisdiction. There is the contentious jurisdiction whereby the court resolves disputed between conflicting parties (states). The second case is the advisory jurisdiction whereby the court gives advisory opinion to any legal question posed to it by the organs that are allowed to seek it. In either of these cases, it is apparent that the jurisdiction of the court is limited and its limitation in jurisdictions have far reaching effects on its usefulness. First, the contentious jurisdictions of the ICJ is only applicable to states and organizations and individuals are denied direct access to the ICJ. The implication here is that the court cannot help states handle civil unrest which would most likely attract the attention of the interested states. Further, the limitation is tightened by the fact that the parties to the court must have consented the court’s jurisdiction. This renders the court useless and powerless. On the advisory opinion, the jurisdiction is also limited in the sense that the organs that can access the court for advisory opinions are also limited.
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Bibliography
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