70 years of the International Court of Justice

Seventy years ago, the International Court of Justice began its work of resolving international disputes in a bid to help maintain global peace and security.

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It has heard some of history’s most contentious international disagreements, some involving Australia.

The atrocities and devastation that formed the aftermath of World War Two cannot be understated.

More than 60 million people were believed dead, and cities and towns had turned to rubble in the second global conflagration in just over two decades.

It was that context that spurred the establishment of the United Nations and its judicial arm, the International Court of Justice.

It was a simple idea, an international court to arbitrate international disputes.

Philippe Couvreur, a registrar for the court, is currently serving his third seven-year term.

He started his career at the court in 1982 and says a lot has changed since then.

“The typology of cases has evolved. Originally, the court was busy with land- or maritime-boundary issues. These are very important issues to prevent conflict. But as from the ’80s, it has been called upon to deal with disputes which were politically, let’s say, more important, cases concerning the use of force between states, so the activity of the court has adapted itself to the evolution of international relations.”

Between 1946 and 2000, the court issued about 70 rulings.

It does not sound like much, but consider the way the court operates.

Member states must approach the International Court of Justice themselves for it to adjudicate disputes.

In other words, states must agree to appear before it and be bound by its decisions.

It is one of main criticisms of the court and, some say, poses a challenge to its pursuit of justice.

But Mr Couvreur says it is also an important aspect.

“It’s very important states are free to choose the way they want to solve their disputes. The obligation is on the two to settle the cases peacefully, but then that the means are in free choice of states, and only if they choose the courts can the court act. Now to say that the court was not successful is certainly not correct, because, when the court is seized, it settles the dispute efficiently. Almost none of the judgments of the court in 70 years was not immediately implemented.”

Australian National University international law lecturer Kevin Boreham says more states should be encouraged to agree to the court’s jurisdiction.

“The greatest way of expanding the court’s jursdiction would be to encourage states to adhere to what’s called the court’s compulsory jurisdiction. That’s a slightly misleading term, because, in fact, it’s optional. Unfortunately, there are only 65 states which have done that, less than a third of the states which are members of the United Nations. So a strong push to get more states to agree to accept the court’s compulsory jurisdiction would mean that the court would be able to deal with a much wider range of cases.”

Recent contentious cases convening at The Hague include one between Croatia and Serbia.

Croatia contended Serbia was responsible for breaches of the Genocide Convention in Croatia between 1991 and 1995.

Serbia claimed Croatia was responsible for genocide in 1995.

The president of the International Court of Justice, Peter Tomka, said crimes had been committed by both countries’ forces during the conflict.

But he said the intent to commit genocide, by destroying a population in whole or in part, had not been proven against either country.

“The court considers that, even taken together and interpreted in light of the contemporaries over a political and military context, the passages from the Briony transcript quoted by Serbia, like the rest of the document, do not establish the existence of the specific intent ‘Dolus Specialis’ which characterises genocide.”

In 2014, Australia brought a case about whaling in the Antarctic before the court.

Australia claimed Japan was using a scientific-research program to mask a commercial-whaling venture.

The court ruled against Japan.

Justice Tomka again made the announcement.

“The court concludes that the special permits granted by Japan for the killing, taking and treating of whales, in connection with JARPA II, are not for purposes of scientific research. The Japanese priority was to maintain whaling operations without any pause, just as it had done previously by commencing JARPA in the first year after the commercial whaling moratorium had come into effect.”

Mr Boreham says the International Court of Justice has generally been a useful body for Australia in settling disputes.

“Australia has found the court a useful instrument. Having a body which can interpret and apply the rules is a vital part of an international system which goes in a predictable way through a predictable set of rules.”

The court has heard more cases in the past 20 years than it did in its first 50.

Despite some criticisms of the court, registrar Philippe Couvreur says he expects states will continue to use it to resolve international disputes peacefully.

“There is a strong confidence of states in this court as a principal organ of the UN for several reasons — the security and the predictability it offers to states, in particular. It is permanent, it is fair, it has a long jurisprudence. All those elements make that … at the end of the day, there is here a certain legal security which is attractive to states, I think.”