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20 Loy. L.A. Int’l & Comp. L.J. 1

Loyola of Los Angeles International and Comparative Law Journal

November, 1997

Susan W. Tiefenbruna1

THE ROLE OF THE WORLD COURT IN SETTLING INTERNATIONAL

DISPUTES: A RECENT ASSESSMENT

I. Introduction

This Article examines the role of the International Court of Justice (World Court)1 as the principal judicial body of the United

Nations.2 In an attempt to evaluate the World Court’s effectiveness as a forum for settling international disputes, this Article

examines the current role of the court in light of its past record. Given the significant changes in the global political cli mate,

the development of other international tribunals, the heightened use of international arbitration to settle disputes, and the

increased activity of the World Court in its advisory capacity, an understanding of the future role of the World Court in

settling international disputes is vital for those engaged in international law or politics.

*2 Many have criticized the World Court’s effectiveness in the past.3 Its record dramatically improved, however, in 1991

after the fall of Communism in the former Soviet Union and in much of Eastern Europe. Earlier, during the Nicaraguan

dispute in 1985, the United States adopted a highly negative view towards the World Court, echoing the critical sentiments of

numerous nations. The United States believed that the World Court was politically motivated rather than impartial. 4 In

addition, critics at that time called the World Court a weak, irrelevant, and even “moribund” forum.5 Reservations about the

World Court by the major world powers stemmed partly from widespread questioning of contemporary international law. 6

Before the fall of Communism, many viewed international law as the product of European imperialism and the World Court

as an institution that failed to take sufficient account of the changed patterns of international relations.7

In 1985, the United States not only voiced its general dissatisfaction with the World Court,8 it twice vetoed Nicaraguan

attempts to enforce the World Court’s decision in the U.N. Security Council. The United States withdrew its declaration

accepting the compulsory jurisdiction of the World Court, and it entirely withdrew from *3 the Nicaraguan proceedings.9 The

United States boycotted the merits phase and did not participate in the subsequent compensation phase. The Sandinista

regime claimed billions of dollars as damages, and the Chamorro administration withdrew this claim as part of the overall

settlement.10 When the World Court entered its judgment against the United States,11 criticism of the World Court escalated.

Critics questioned the Court’s role as a fair tribunal for the adjudication of international disputes.

In contrast, the World Court in the 1990s is increasingly respected as an international adjudicator, and it is busier than ever

before.12 The World Court no longer represents an “irrelevant” judicial institution. It has emerged as a viable international

institution due, in part, to the steady performance of past duties.13

Currently, the World Court examines a wide variety of international legal issues.14 The World Court issues judgments,

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provides advice, and mediates settlement negotiations of cases being decided in the Court.15 Since 1946, the Court has

delivered sixty dispute *4 judgments concerning, inter alia, land frontiers and maritime boundaries, territorial sovereignty the

non-use of force, and the non-interference in the internal affairs of States. In addition, other cases dealt with diplomatic

relations, hostages, the right of asylum, nationality, guardianship, rights of passage, and economic rights.16

Part II of the Article discusses the history as well as the jurisdictional reach of the Court. Part III focuses on the Court’s

judicial record, beginning with the Court’s lean years from 1922 to 1984, and then extensively examines the Court’s

increased activity since 1991. Part IV explains the general purpose of the World Court, discusses the Court’s strengths and

weaknesses and explains why States should select the World Court as a dispute resolution forum. Part V examines the

Court’s future in settling international disputes, given the changes in political climate, the development of other internati onal

tribunals, the increased use of international arbitration as a means of dispute settlement, and the Court’s increased activity in

its advisory capacity. Finally, Part VI concludes that nothwithstanding the impacet of the Court’s weaknesses, the Court is

busier than ever in maintaining world peace.

II. History of the World Court

A. Formation of the World Court

The United Nations Charter established the World Court as an organ of the United Nations.17 The Statute of the Court, a

special part of the United Nations Charter, governs the Court.18 The Charter of the United Nations provides that “[a]ll

Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.”19 The International

Court of Justice embraces two courts, the Permanent Court of International Justice, set *5 up in 1919 as a tribunal for peace

settlement, and the International Court of Justice, founded in 1945 as the principal judicial body of the United Nations.20

The World Court is located in the Hague in a building called the Peace Palace.21 The United Nations General Assembly and

Security Council elect fifteen judges from different countries22 for staggered terms of nine years.23 Judges must be impartial

and must decide cases according to the rules of international law.24

In addition, judges must elect a President and a Vice-President of the Court. On February 6, 1987 the judges elected Stephen

Schwebel of the United States as President, and Christopher Weeramantry of Sri Lanka as Vice-President of the Court.25 Both

of their terms of office will expire on February 6, 2000.26

The current composition of the judges on the Court in order of seniority is: Shigeru Oda, Japan; Mohammed Bedjaoui,

Algeria; Gilbert Guillaume, France; Raymond Ranjeva, Madagascar; Geza Herczegh, Hungary; Shi Jiuyong, China; Carl-

August Fleischauer, Germany; Abdul G. Koroma, Sierra Leone; Vladlen S. Vereschchetin, Russian Federation; Rosalyn

Higgins, United Kingdom; Gonzalo Parra-Aranguren, Venezuela; Peter H. Kooijmans, Netherlands; and Jose F. Rezek,

Brazil.27

The World Court has two purposes: to settle legal disputes among States in accordance with international law and to give

U.N. agencies advisory opinions on legal questions.28 The Statute of the Court defines the tribunal’s powers to decide

disputes. In contentious cases, only sovereign States may apply to appear before the Court.29 Currently, the 185 member

States of the United Nations and the non-member States that have become parties to the Court’s *6 Statute may apply to

appear before the Court.30

The World Court can hear and decide disputes only when the States involved consent to its jurisdiction. 31 Thus, the World

Court does not have automatic compulsory jurisdiction.32 States may consent in one of three ways: (1) by the signing of a

Special Agreement to submit the dispute to the Court; (2) by virtue of a jurisdictional clause in a treaty to which both States

are parties; or (3) through the reciprocal effect of declarations made by the parties under the Statute. Where reciprocal

declarations are made, each State accepts the jurisdiction of the Court as compulsory in the event of a dispute with another

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State having made a similar declaration.33

Some legal scholars believe that compulsory jurisdiction must be implemented for the World Court to be an effective peace

keeper.34 Compulsory jurisdiction would enable the Court to better resolve international disputes,35 without having to seek

jurisdiction over the States in each submitted case.

There are three categories of jurisdiction: ratione materiae, ratione personae, and ratione temporis. Each of these categories

imposes limitations on the Court’s jurisdiction.

Jurisdiction ratione materiae grants the Court broad reach. This jurisdiction covers all cases that parties refer to the Court and

all matters specially provided for in the U.N. Charter, or in treaties and *7 conventions currently in force.36 The World Court

under ratione materiae jurisdiction will only consider questions of law, not political or economic interest questions. Similarly,

the Court will accept advisory jurisdiction cases only if they involve a “legal question.”37

The personality of the parties defines jurisdiction ratione personae. In the World Court only States may be parties in cases

before the Court.38 Thus, States that are parties to the present Statute including all U.N. members as well as other States such

as Switzerland, Liechtenstein and San Marino, may seek judicial settlement of international disputes before the World

Court.39 The principles of jurisdiction ratione materiae and ratione personae are rough equivalents of personal and subject-

matter jurisdiction in domestic law.

The third category, jurisdiction ratione temporis exists, but not as an independent jurisdictional requirement either in the

Statute of the Court or in the opinions of the Permanent Court or World Court.40 A state’s reservations to this type of

jurisdiction may restrict the period in which the Court can assert otherwise valid jurisdiction against the declarant.41 There are

no jurisdictional statutes of limitations unless the State itself opts to impose a limit.42

Once the Court asserts proper jurisdiction, the proceedings before the Court include a written phase and subsequent oral

phase. During the written phase, the parties file and exchange pleadings called Memorial and Counter-Memorial. In the

second round, these pleadings are called Reply and Rejoinder. The subsequent oral phase consists of public hearings at which

agents and counsel address the Court.43

*8 B. Jurisdiction of the World Court

l. Contentious Jurisdiction and the Nature of Consent

The World Court has three kinds of jurisdiction: contentious, incidental, and advisory jurisdiction. Contentious jurisdiction is

based on the consent of the parties to the dispute.44 A State can consent to jurisdiction in a number of ways, either before or

after the dispute arises.45 For example, consent to jurisdiction before the dispute arises may be made by means of a

compromissory clause in a treaty, a declaration under Article 36(2) of the Statute of the Court or a special agreement.

Alternatively, consent can be given after a dispute has arisen by a special agreement between the parties, by one party in

response to the unilateral reference of a dispute to the World Court, or by performance of a legal act indicating consent.46 A

legal act indicating consent of jurisdiction establishes consent, even if the State is unwilling to litigate later when an actual

case arises.47 Thus, conflicts between the consensual basis and objections to the Court’s jurisdiction from unwilling

respondents do not arise.

Two types of treaties provide for the referral of the disputes to the World Court in advance of the dispute: multilateral

instruments having a general aim and multilateral instruments having a more specific aim.48 Multilateral treaties having a

general aim of promoting peace, like the General Act of 1928, the 1948 Pact of Bogota, and the 1957 European Convention

for the Peaceful Settlement of Disputes, represent general agreements to jurisdiction. These treaties bind signatories to

jurisdiction. This type of multilateral instrument has generally failed, however, to provide jurisdiction by consent either

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because most States do not support them or because States that sign such treaties accept the Court’s jurisdiction with

substantial reservations.49

Multilateral treaties having a more specific aim may contain an article which provides that disputes regarding the

interpretation or application of that agreement can be referred to the World Court. Treaties of this type are less common but

have provided the basis of *9 jurisdiction in several cases.50

In addition, before the dispute arises, Article 36(2) of the Statute of the Court provides the states with an optional clause. If a

State makes a declaration under the optional clause, it accepts the judicial settlement of a dispute on certain terms and

conditions.51 If both signatory States agree to an optional clause declaration, then jurisdiction is established. However, less

than one-third of the U.N. members, however, have made declarations under Article 36(2), and many of those declarations

are weakened by reservations.52 The number of declarations accepting the Court’s jurisdiction under the optional clause is on

a slow but steady upward trend.53

Provisions for reservations are stated in Article 36, paragraph 3 of the Statute, allowing States to include conditions regarding

reciprocity and limiting the duration of a declaration under the optional clause.54 Although the Statute conspicuously fails to

refer to the possibility of making reservations that exclude certain types of disputes, matters, or parties from an acceptance of

compulsory jurisdiction, it is “generally recognized that States have an inherent right *10 to qualify their declarations under

the optional clause through non-statutory reservations.”55

The Statute recognizes four broad categories of reservations: (1) reservations regarding termination and modification, such as

conditions; (2) reservations ratione temporis, temporal reservations; (3) reservations ratione personae, reservations as to the

parties; and (4) reservations ratione materiae, subject-matter reservations.56

The United States’ automatic reservation seems to include all four types of reservations. Its reservation, commonly referred

to as the Connally Amendment, excludes “disputes with regard to matters which are essentially within the domestic

jurisdiction of the United States of America as determined by the United States of America. . . .”57 The Connally Reservation

effectively grants the United States the power to avoid jurisdiction in all World Court matters.58 Through the principle of

reciprocity, other States can use this reservation to escape actions brought by the United States.59

For consent to jurisdiction after the dispute arises, parties may negotiate a special agreement, similar to an arbitral

compromis.60

Jurisdiction over a dispute may be based on consent shown by a legal act. However, sometimes disagreements develop as to

whether the States involved have given the Court the necessary consent. The Court must resolve this dispute pursuant to

Article 36(6) of the Statute, which confers compétence de la compétence.

Initially, proceedings in the World Court often involve jurisdictional disputes, and these may form a separate stage of the

proceedings. For example, in the Nicaragua case,61 brought by Nicaragua against the United States in 1984, the World Court

accepted the respondent’s argument that a reservation covering certain multilateral treaties applied. The Court held, however,

that it still had jurisdiction *11 to decide the case on the basis of customary international law.62

2. Incidental Jurisdiction

The second type of jurisdiction the World Court has is incidental jurisdiction. Incidental jurisdiction grants the World Court

the power to order interim measures of protection, the power to allow a State to intervene,63 and the power to revise or

interpret a judgment.64 The Statute of the Court confers these powers and does not require the States to give further consent.65

3. Advisory Jurisdiction

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The third type of jurisdiction granted to the World Court is advisory jurisdiction, which addresses rights and duties of

international organizations.66 Advisory jurisdiction enables the Court to give international organizations legal opinions at their

request.67 For example, the General Assembly may ask the Court to issue an advisory opinion regarding legal disputes

between States.68

Since 1946, the Court has issued twenty-three Advisory Opinions concerning, inter alia, admission to United Nations

membership, reparation for injuries suffered in the service of the United Nations, territorial status of South-West Africa

(Namibia) and Western Sahara, judgments rendered by international administrative tribunals, expenses of certain United

Nations operations, and the applicability of the United Nations Headquarters Agreement.69

*12 III. Record of the World Court

A. The Lean Years: 1922-1940; 1946-1987

The record supports the contention that the World Court has not lived up to the international community’s expectations of

having a single judicial forum which would resolve international disputes and promulgate binding international law. 70 From

1922 until 1940, the Permanent Court of International Justice heard twenty-nine cases and issued twenty-seven advisory

opinions.71 From 1946 to 1987, the International Court of Justice or a Chamber of the Court conferred judgments on the

merits of twenty-three cases,72 terminated twelve cases in the preliminary stages, discontinued five cases, and issued nineteen

advisory opinions. Thus, in sixty-five years, the two institutions decided sixty-four contentious cases and forty-six advisory

opinions.

In the years 1952, 1963-66, and 1968-69, the International Court did not receive any new cases, nor did it receive requests for

advisory opinions.73 This record indicates that the two tribunals heard an average of two cases per year--hardly a brilliant

record.74

Several explanations exist for the World Court’s lean years. They include the World Court’s location in the Hague, a

persistent dispute between justiciable and non-justiciable cases,75 two world wars, and governments’ common fear of losing

control over the resolution of disputes.76 In addition, its lean years were due to a general lack of confidence in the Court, in its

composition, and in international law which the Court applies.77

*13 B. Increased Activity of the Court: 1991-1997

l. 1991

Recent changes in the global political climate have dramatically increased the number of cases adjudicated by the World

Court. The 1991 reports reveal that in the preceding two years, nine new cases were submitted to the Court.78 The full Court,

rather than the Chamber, heard these nine cases, which except for one,79 were all filed by application.80 The nine new cases

brought to the Court by States included a variety of novel issues.81 The jurisdictional basis in these cases varied from

assertions of commitments made in the course of mediation to straightforward reliance on the optional clause. They also

included a variety of treaty compromissory clauses, including friendship, commerce and navigation treaties, and the Chicago

Convention.

Due to the increased activity of the World Court in 1991, there was hope that the full Court, not the Chambers, would be busy

developing new areas of international law. Commentators interpreted this increased activity as an indication that the World

Court would primarily adjudicate matters relating to the law of the sea, and that participation in the Court’s process would

increase.82 Moreover, the increased activity in 1991 enabled the Court to serve as a forum for the reconciliation of the

disparate interests of developed and developing countries. In the near future the Court will likely become a forum for a wide

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range of mid-level powers seeking to resolve important local problems probably concerning a boundary.83

*14 2. 1992-1993

As of October 15, 1993, the World Court had a full docket, with eleven cases at various stages of resolution. 84 Recent

additions to the list include cases between Hungary and Slovakia over the Danube dams.85 In addition, the list includes a

request from the World Health Organization for an advisory opinion--the only advisory opinion request on the docket--

concerning the use of nuclear weapons.86

Twice during the 1992-1993 session, the Court dealt with complicated and lengthy requests for interim measures of

protection in the case brought by from Bosnia and Herzegovina against Yugoslavia (Serbia and Montenegro) regarding the

Genocide Convention.87 Because these requests have priority over all other cases, the Court immediately resolved these two

interim requests.88

On June 14, 1993, the Court entered final judgment in the case between Denmark and Norway. 89 This case concerned the

maritime boundary between the east coast of Greenland and the Norwegian Island of Jan Mayen.90 Both parties considered

the Court’s judgment as a satisfactory final settlement of a long-term dispute.91

During this session, both the Nauru v. Australia case92 and the *15 Great Belt case between Finland and Denmark93 settled out

of court. The successful settlement of these two cases indicates a new role for the World Court. The Court’s intervention

made further negotiations between the parties possible and resulted in the successful settlement of the dispute. “No longer is

resort to the International Court of Justice seen, to use the traditional phrase, as a ‘last resort’ when all negotiation has finally

failed. Rather, it is sometimes now to be seen as a recourse that might usefully be employed at an earlier stage of the

dispute.”94

Finally, during this period of heightened activity, the Court also established a Chamber for Environmental Matters, believing

some litigants might prefer a Chamber composed of judges who expressed a special interest in that area.95

3. 1993-1994

Similar to the previous two years, the Court accepted three new cases in 1993.96 According to the Report of the General

Assembly on the Work of the Organization, the World Court heard a record number of thirteen cases in the 1993-94

sessions.97 The Court’s docket included twelve contentious cases and one advisory opinion. The parties consisted of States

“from nearly every region in the world. Judgment was rendered in two cases, and an Order on requests for the indication of

provisional measures was made in a third case.”98

The twelve contentious cases were as follows: (1) Aerial Incident of 3 July l988;99 (2) East Timor;100 (3) Maritime

Delimitation between Guinea-Bissau and Senegal;101 (4) Maritime Delimitation *16 and Territorial Questions between Qatar

and Bahrain;102 (5) Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial

Incident at Lockerbie (Libya v. U.K.)103 and (Libya v. U.S.);104 (6) Oil Platforms (Islamic Rep. of Iran v. U.S.);105 (7)

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serbia

and Montenegro));106 (8) Gabcikovo-Nagymaros Project (Hungary/Slovakia);107 (9) Land and Maritime Boundary (Cameroon

v. Niger.);108 (10) Libya/Chad;109 and (11) Nauru v. Australia which settled in September, 1993.110

In September 1993, the World Health Organization also requested an advisory opinion on the legality of the use of nuclear

weapons by a State in armed conflict.111

4. 1994-1996

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During the 1995 calendar year, the Court had two new contentious cases and one new advisory opinion case. 112 The two new

cases were Fisheries Jurisdiction case,113 brought on Application on *17 March 28, 1995, and the Nuclear Tests case.114 In the

Nuclear Tests Case, the Court heard New Zealand’s request for an examination of the situation in light of the Court’s

December 20, 1994 judgment in the Nuclear Tests case.115 The U.N. General Assembly also requested an advisory opinion on

the legality of the threat or use of nuclear weapons.116 Thus, in 1995, a total of thirteen cases appeared on the General List.117

The majority of these cases, however, were carried over from the previous session, except for the Nauru v. Australia case, 118

which was settled in September 1993 and the Libya/Chad case,119 which was decided on February 3, 1994.120

In 1995, the World Court issued a total of ten orders.121 These orders involved fixing time limits for the advisory opinions of

the Nuclear Tests case,122 the Qatar and Bahrain cases,123 the Lockerbie cases,124 the Genocide case,125 and the Fisheries

Jurisdiction case.126 The full Court held public sittings in four cases: East Timor,127 New Zealand v. France,128 and the two

nuclear weapons advisory opinions.129 On February 15, 1995, the Court delivered a judgment on *18 jurisdiction and

admissibility in the Qatar and Bahrain case.130 On June 30, 1995, the Court decided the East Timor case.131 However, the

Court held by a 14 to 2 majority that it could not adjudicate the legal dispute between Portugal and Australia. 132 The Court

also held that East Timor must remain a self-governing territory and that the people of East Timor have the right to self-

determination.133 On September 22, 1995, the Court dismissed New Zealand’s request to reopen the case against France.134 On

November 14, 1995, the Court issued a fifth order discontinuing the case concerning maritime delimitation between Guinea -

Bissau and Senegal, which was brought on March 12, 1991.135

In 1996, the Court continued its productive pace.136 On February 12, 1996, Cameroon filed a Request for Provisional

Measures--a form of injunction--to stop the fighting between Cameroon and Nigerian forces.137 On February 23, 1996, the

Court dismissed the case concerning the aerial incident between Iran and the United States because both parties had entered

into negotiations for a friendly settlement of the matter on August 8, 1994.138 On July 8, 1996, the Court ruled on the

September 3, 1993 World Health Organization’s Request for an Advisory Opinion relating to the use of nuclear weapons, and

it also handed down its Advisory Opinion on the Legality of Nuclear Weapons.139 On May 29, 1996, Botswana and Namibia

jointly filed a case to determine the boundary between Botswana and Namibia around Kasikili/Sedudu Island as well as to

determine the legal status of the island.140 On December 12, 1996, *19 the Court rejected the U.S. objection to the Court’s

jurisdiction in the Oil Platforms case involving Iran and the United States.141 Thus, the Court dealt with twelve contentious

cases and two advisory opinions for the period between August 1, 1995 to July 31, 1996.142

5. 1997

In order to obtain evidence in the Hungary v. Slovakia dispute, the Court issued an order on February 5, 1997 for World

Court investigators to visit the site of the Gabcikovo-Nagymaros hydro-electric dam project near Bratislava in the Slovak

Republic. A Special Agreement between Hungary and the Slovak Republic on July 2, 1993 referred the dispute between the

two countries to the Court.143

IV. Why Select the World Court?

A. Purposes of the World Court

In 1991, President George Bush announced the beginning of the air strikes against Iraq. In his speech, he submitted to the

American people a plea for a new world order, saying, “[w]e have before us the opportunity to forge for ourselves and for

future generations a new world order, a world where the rule of law, not the law of the jungle, governs the conduct of

nations.”144 It is generally accepted that peace under the rule of law is an ideal.145 The World Court provides for the peaceful

settlement of disputes by intervening in, and enhancing the role of, international legal order.146

“Now that the use of force is generally prohibited, the only *20 way one can solve a dispute is by a decision of some

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impartial international body. Despite the doubts of some people, the International Court of Justice is the closest thing we have

to such an impartial international body.”147

B. Weaknesses of the World Court

Nations sometimes view the submission of a dispute to the World Court as an “unfriendly” act.148 This attitude may account

for its under-utilization. The delays of the Court proceedings, due to a large number of separate and dissenting opinions, have

also discouraged parties from using the Court.149

Some nations object to the procedure by which the judges of the Court are elected, claiming that the judges do not have

uniformly high qualifications, impartiality, or independence.150 In addition, reservations ratione temporis of the optional

clause have weakened the effectiveness of the Court, and it has been suggested that the Court should adopt a resolution on the

subject of these reservations.151

Furthermore, the unpredictability of the Court’s decisions due in part to the application of uncodified customary international

law represents one of its most serious weaknesses. Agreement about the content and process of international law is not shared

by all nations.152 Moreover, the new nations of the Third World, representing the majority of the world’s people, contend that

they are not bound by customary norms and that U.N. resolutions instead should create international legal norms. 153 Thus, the

substantive norm to be applied by the Court is, itself, indeterminate.154 In view of this uncertainty and the contested principles

of customary international law,155 some argue that the Court should reconsider application of customary international law

until it is properly codified.156 In addition, uncertainty about the Court’s application of the law contributes *21 to the fear of

many governments that they will lose control if they submit their cases to World Court jurisdiction.157

Scholars espouse different views regarding the causes of the World Court’s weaknesses. Richard Falk argues convincingly

that the World Court’s judicial style and narrow perspective have significantly impaired its functioning and have isolated it

from the majority of nations.158 Through a study of cases, Falk shows that the Court’s opinions contain a subtle,

jurisprudential paradigm that is positivist in legal style, Western in its use of sources, non-normative and obtuse in character,

as well as indeterminant.159 The Court’s Western positivist judicial style makes it less-responsive to non-Western cultures.

The substance of the decisions grounded in Western hegemony creates an institution inhospitable to non-Western interests.

Falk proposes that the Court utilize a normative pluralistic jurisprudence that will consider panhumanistic commitments

derived from principles set forth in the U.N. Charter and the diverse cultural, ideological, and national perspectives

throughout the world.160

In contrast, another scholar Michael Reisman, disagrees with Falk’s view that the weakness of the Court is its domination by

Western ideology and its bias in favor of the United States. Reisman argues that the changing composition of the Court has

led to a bias against the United States.161 He believes that this bias caused the United States to withdraw its optional clause

declaration and to refuse to appear in the Nicaragua case.162

Professor Patrick Kelly argues that Falk’s proposal for a normative pluralistic jurisprudence will cause the disintegration o f

the Court and of international law.163 In addition, Professor Kelly argues that “the frequent use of special chambers

procedures, voluntar[il]y or not, in contested substantive areas,” would lead to a pluralistic and fragmented jurisprudence. 164

He recommends a *22 “universal jurisprudence agreed upon by all nations.”165

The United States pioneered international adjudication when it signed the Jay Treaty with the United Kingdom in 1794,

establishing several arbitral tribunals.166 The United States has more recently shown ambivalence toward the World Court.167

Thomas Franck and Jerome Lehrman168 persuasively argue that United States policy has veered between “messianism,” fired

by a utopian belief that the United States could lead states into accepting the world rule of law, and “chauvinism,” reflecting

the United States’ “real-politik” counter-tendency and its distrustful view of other States and of international involvement in

general.169 The messianic vision, which states that law rather than war should settle disputes, appeared to triumph with the

passage of the optional clause declaration. The chauvinistic tradition of untrammeled sovereignty found expression in the

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Connally Reservation, which erases the commitment of the United States to compulsory jurisdiction.170 Franck and Jerome

argue that, to achieve the messianic vision, proponents must find appropriate substantive areas for international adjudication

and must design tribunals whose judges will be receptive to United States’ interests.171

Until recently, an applicant State would select the World Court to adjudicate its dispute only if it believed that it would win.

Or, if the applicant State wanted to make a statement or teach a lesson without using force, it also might bring its dispute

before the World Court. Furthermore, a State could only rightfully bring the dispute before the World Court if the dispute di d

not involve national life or domestic issues. Until recently a State generally appealed to the World Court to settle or solve the

dispute only if it were absolutely desperate.172

*23 Sir Robert Jennings believes that this cold climate surrounding the World Court has changed and that “there can be only

one ‘principal judicial organ of the United Nations,’ as there is normally only one supreme court of any legally ordered

community; and that position of the International Court of Justice ought always to be remembered and strenuously

protected.”173 Sir Robert Jennings defends the Court’s delays by stating, “one is justified in saying that the Court itself really

works remarkably quickly, and the time taken will be found in any event. . . to compare favourably with other superior courts

of both domestic and international jurisdiction.”174

One of the reasons the World Court has not expanded its adjudicative role is the requirement that its subject-matter

jurisdiction be limited to legal and not political issues. Scholars have suggested that the increased activity of the World Court

in recent years may be due partly to a more realistic appreciation of an international court of justice’s place in a global society

governed by international law. Rather than thinking of the Court as a forum for the settlement of all international disputes, it

is more realistic to accept that some disputes require political decisions by a political body.

Such a body will of course work within the framework of the law, but the reasons for the decision will be

political rather than legal. . . . People are much more likely to resort to the Court if they have a clear idea of

what it can and should do, and what it cannot do.175

The questionable qualifications and lack of impartiality of the Judges weakens the Court. To overcome this criticism, the

Court has recently employed the panel approach to adjudication, in which only five out of the fifteen judges hear a case.176

However, this chamber procedure has itself been criticized. “If States choose only to use such specially selected panels, the

World Court could become a series of ad hoc arbitral tribunals sitting at a common seat, rather than remaining a ‘World

Court.”’177 Moreover, the use of panels may erode the concept of the World Court as a global institution for the preservation

of peace and may foster the idea that the judges of *24 the Court are biased.

During a Jurisprudential Lecture at the University of Washington, Honorable Stephen Schwebel, then a judge of the

International Court of Justice, commented that the refusal of certain defendant States to appear in Court, even where the

Court clearly or arguably had jurisdiction, cripples the Court.178

Finally, the lack of compliance with the Court’s final judgments undermines the World Court’s strength. 179 The current

structure of international adjudication reinforces the failure of States to comply with the Court’s judgments.180

The Court’s recent heightened activity has placed it under exceptional strain and has subjected staff and resources to severe

cuts. Despite budgetary restrictions, for example, the Court has been deliberating on three cases simultaneously, instead of

taking one case at a time.181

C. Strengths of the World Court

Peace under law is an ideal;182 the World Court was established to address the universal need for the peaceful settlement of

international disputes. The World Court provides a State the opportunity to resolve an international dispute if it has a lega l

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interest.183 The very existence and active use of the Court enhance international legal order. The Court plays the role of a

teacher, an advisor, a source of developing international law, and the hope of a world built on law and justice. The World

Court also offers opportunities to depoliticize decisions by allowing a losing party to simply blame the Court for the

judgments.

The development of the Chambers of the Court confers the advantages of both arbitration and adjudication.184 The Chamber

System provides an accepted body of procedural rules and the facilities *25 of the Court in the Hague. Moreover,

proceedings before a chamber are less expensive for the parties than those which require finding and the establishment of an

arbitral tribunals.

V. The Future Role of the World Court

The Court’s future role may be limited by a number of factors. First, other types of dispute resolution such as negotiation,

mediation, and conciliation exist. Second, as set forth in U.N. Charter Article 33, the United Nations and other regional

agencies may settle international disputes.185 According to the U.N. Charter, States may use other international tribunals to

resolve disputes.186 As a result, many cases are currently decided in other international arenas, in bilateral arbitrations, in the

dispute resolution mechanisms of the General Agreement on Tariffs and Trade and the World Trade Organization, and in the

panels of the North American Free Trade Agreement. Furthermore, World Court adjudication can be risky, costly,

unpredictable, not always impartial, and sometimes unenforceable. The risk of entrusting national interests to foreign judges

who may be biased is overwhelming for some States, causing those States to choose other dispute resolution mechanisms.

Despite these issues, the World Court should play a greater role in the future because adjudication as a means of dispute

resolution is dispositive and final. The Court is usually principled, impartial and orderly. It can provide time for parties that

are in a protracted dispute to reach an agreement that is mutually beneficial. It settles disputes and provides advisory

opinions, and as an impartial tribunal, it can “depoliticize” a dispute and reinforce the rule of law.

The World Court may be especially helpful in certain types of disputes in which governments are not particularly concerned

about the outcome but are, nevertheless, unable to compromise the issue in negotiations.187 The Court has proven to be an

ideal forum for the reconciliation of serious, local problems like boundary disputes.188 Furthermore, if a dispute involves

difficult factual or technical issues, the Court can provide impartial assistance.

The World Court should also play a greater role in the future because of the increasing demand for the resolution of

environmental *26 disputes. It is in a unique position to settle such disputes because it has created a special chamber to deal

with each environmental dispute brought to it.189

For new States with middle-level power, the Court is the forum to resolve serious local problems. The Court could become

the forum for the reconciliation of the interests of developing countries with those of the super powers. With the rise of

developing countries after World War II, the world has seen the emergence of a large group of prominent non-Western jurists

in the World Court.190 Of the fifteen judges ruling in 1988, almost half were from developing countries including Senegal,

Guyana, and Nigeria.191 This development should aid in re-establishing a more accurate balance of power in the Court and

allowing the Court to better reflect the change in political climate and patterns of international relations. However, in January

1996, there was only one inter-African case pending between Cameroon and Nigeria.192

One way to improve and enhance the use of the World Court in the future is to expand its advisory jurisdiction. Professor

Louis Sohn has suggested possibilities for such an expansion.193 For example, the General Assembly should authorize other

general or regional public international organizations to request advisory opinions.194 Furthermore, the court should allow two

or more States to submit a dispute for advisory opinion.

Leo Gross, another scholar, has offered a practical suggestion for the expansion of the Court’s role in the future.195 In view of

the development of European Union law and the successful role that the European Court of Justice has played in Western

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Europe through the extensive use of referral of cases from national courts to the European Court of Justice, a viable option is

the use of a similar referral system for the World Court.196 National courts of the *27 European Union often refer cases to the

European Court of Justice pursuant to an Article 177 proceeding197 concerning questions that arise about the interpretation or

validity of European Union law.198 Similarly, national tribunals could refer a complex international law question to the World

Court.199

VI. Conclusion

The World Court is expanding its efforts to maintain world peace and to adjudicate international disputes. New States of

middle-level power have begun submitting cases to the World Court. The Court is performing new functions as an advisor, a

settler of disputes, and a conciliator of the interests of developing nations with those of the super powers. The demise of

Communism, resulting in a sudden and marked increase in the use of the Court, undermines the arguments regarding the

Court’s weaknesses and emphasizes the inextricable link between law and politics.

Footnotes

Dr. Susan Tiefenbrun is Director of International Law Programs and Adjunct Professor at Hofstra University School

of Law. This paper was presented at a conference entitled, United Nations at Fifty, sponsored by Hofstra University

on March 16, 1995. I wish to give special thanks to Jeremy Wolk of Hofstra University School of Law for his

research assistance in updating this study.

This Article uses the terms World Court, ICJ, or the Court to refer to the International Court of Justice.

U.N. Charter arts. 7, 92.

See generally J. Patrick Kelly, The Changing Process of International Law and the Role of the World Court, 11 Mich.

J. Int’l L. 129 (1989) (discussing legal scholars’ views on the role of the World Court, including the views of Thomas

Franck, Louis Sohn, Michael Reisman, Eugene Rostow, and Richard Falk).

See generally Michla Pomerance, The United States and the World Court as a ‘Supreme Court of the Nations’:

Dreams, Illusions and Disillusion (1996) (presenting a comprehensive review of U.S. attitudes toward the concept of

a World Court, and U.S. disillusionment with the prospect and performance of the International Court of Justice and

other international adjudicative bodies).

See generally John C. Guilds, III, “If It Quacks Like a Duck”: Comparing the ICJ Chambers to International

Arbitration for a Mechanism of Enforcement, 16 Md. J. Int’l L. & Trade 43 (1992).

See generally Shabtai Rosenne, The Law and Practice of the International Court 17 (1985) (citing Oliver James

Lissitzyn, International Law Today and Tomorrow (1965)).

7 Richard Falk, Reviving the World Court x (1986).

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It also made me aware of the reality of the International Court of Justice as an institution: its absurd formality and

archaic quality; the deep sense of pride and commitment shared by its judges, who agree on little else; and most of all,

the remoteness of this judicial atmosphere from the changing currents of international life.

Id.

See United States: Department of State Letter and Statement Concerning Termination of Acceptance of I.C.J.

Compulsory Jurisdiction, reprinted in 24 I.L.M. 1742 (1985) This letter stated that as of October 7, 1985, the United

States opted to end its 40 year acceptance of the compulsory jurisdiction of the International Court of Justice. See id.

See, e.g., U.S. Decision to Withdraw from the Int’l Court of Justice: Hearing Before the Subcomm. on Human Rights

and Int’l Orgs. of the Comm. on Foreign Affairs, 99th Cong. 1 (1985) (statement of Gus Yatron, Chairman,

Subcomm. on Human Rights and Int’l Org. of the Comm. on Foreign Affairs); U.S. Terminates Acceptance of ICJ

Compulsory Jurisdiction, Dep’t St. Bull., Jan. 1986, 67; U.S. Withdrawal from the Proceedings Initiated by Nicaragua

in the ICJ, Dep’t St. Bull., Mar. 1985, at 64; Abraham D. Sofaer, Adjudication in the International Court of Justice:

Progress Through Realism, 44 Rec. of the Ass’n of the Bar of the City of N.Y. 459, 462 (1989).

See Keith Highet, The Peace Palace Heats Up: The World Court in Business Again?, 85 Am. J. Int’l L. 646, 647

(1991) [hereinafter Peace Palace].

See Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

See Peace Palace, supra note 10, at 646.

See id.

For example, in 1992 a number of States came to the World Court by special agreement to settle disputes. These

disputes included a territorial dispute between El Salvador and Honduras, a border dispute between Libya and Chad,

and the Danube Diversion case between the Slovak Republic and Hungary. See infra Part III.B.1. States have brought

other major disputes to the World Court including the Aerial Incident case, the Oil Platforms case between Iran and

the United States, and the East Timor case between Portugal and Australia. Similarly, activity increased in both 1993

and 1994. See infra Part III.B.3. In 1995, the Court handled the Fisheries Jurisdiction case between Spain and Canada.

In the same year, a total of 13 cases appeared on the general list of cases. In 1996, a new case was brought before the

Court involving a boundary dispute between Botswana and Namibia over the Kasikili/Sedudu Island and the legal

status of the island. See infra Part III.B.4. See also Report of the International Court of Justice, August 1, 1995-July

31, 1996, U.N. GAOR, 51st Sess., Supp. No. 4, at 37, U.N. Doc. A/51/4 (1996) [hereinafter 1995 Report].

See Keith Highet, The International Court of Justice in the Post-Cold War World, 2 Am. Soc’y Int’L Bull. Educ.

Resources On Int’l Law 5 (1994) [[[hereinafter ICJ].

See The International Court of Justice: An Overview of Organs (visitedMar. 5, 1997)

<http://www.un.org/overview/organs/icj.html>.

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The International Court of Justice is the “principal judicial organ” of the UnitedNations. U.N. Charter art. 92.

See Nagendra Singh, The Role and Record of the International Court of Justice 43 (1989).

U.N. Charter, Statute of the Court art. 93, para. 1. Furthermore, it provides that “[a] State which is not a Member of

the United Nations may become a party to the Statute of the International Court of Justice on conditions to be

determined in each case by the General Assembly upon recommendation of the Security Council.” Id. art. 93 para. 2.

A State’s membership in the United Nations, however, does not mean it must automatically accept the Court’s

compulsory jurisdiction. See id. art. 93, paras. 1-2.

See J.G. Merrills, International Dispute Settlement 109 (2d ed. 1991).

See Singh, supra note 18, at 41.

See Merrill, supra note 20, at 123.

See U.N.Charter, Statute of the Court art. 13; Merrills, supra note 20, at 109.

See U.N.Charter, Statute of the Court art. 13.

See Peter H.F. Bekker, Recent Developments at the World Court, Am. Soc’y Int’l L. Newsl., Mar.-Apr. 1997, at 1, 8

[hereinafter Recent Developments Mar.-Apr. 1997].

See id.

See U.N.Charter, Statute of the Court art. 65, para. 1; Singh, supra note 18, at 14.

See id.

The two non-member States are Nauru and Switzerland. See 1995 Report, supra note 14, at 5.

See U.N. Charter, Statute of the Court art. 36, para. 1. “The jurisdiction of the Court comprises all cases which the

parties refer to in all matters specially provided for in the Charter of the United Nations or in treaties and conventions

in force.” Id. Therefore, the Court must first determine that all States involved have agreed to submit to the Court’s

exercise of jurisdiction.

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See id. art. 36, para. 2.

This is said to have been brought by one party’s “application.”

Cf. Thomas M. Franck, Judging the World Court (1986). The United States should increase its utilization of the

International Court of Justice, and reaccept the Court’s compulsory jurisdiction subject to several important

qualifications. In addition, the United States should reserve for the World Court disputes involving hostilities, armed

conflict, and individual and collective self-defense. Moreover, the United States should also be able to choose the

panel of judges through special chamber procedures. See id. at 65-73. Furthermore, the United States should also be

able to request the Court to render a decision limited to a declaration of applicable legal principles rather than

rendering a final order and eliminating the Connally reservation, which excludes matters of domestic jurisdiction from

the World Court. See id. at 75-76.

See Singh, supra note 18, at 29. Jurisdiction is the “key element” in international judicial settlement and in the

assessment of the Court’s performance. All hope of universal compulsory jurisdiction, however, was abandoned early

in 1947. See id. at 12.

See id. at 13.

See id.

See U.N. Charter, Statute of the Court art. 34, para. 1

See id. art. 35.

See Singh, supra note 18, at 12-13 (describing the three categories of jurisdiction).

See id. at 13 (stating that “a State is free to limit its acceptance of jurisdiction by reference to specific dates or

periods”).

See Singh, supra note 18, at 13. For example, Israel excluded historical events from judicial scrutiny between May 5,

1948 and July 20, 1949. See id.

See id. at 237.

See Merrills, supra note 20, at 110.

See id. at 109-10.

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See id. at 110 (describing the number of ways a State may give consent).

See id.

See id. (discussing the two types of multilateral instruments).

See id.

For example, in 1980 the Court decided the dispute over the detention of the U.S. diplomatic and consular staff in

Teheran. The Court had jurisdiction because both the United States and Iran were parties to the Protocols Concerning

the Compulsory Settlement of Disputes attached to the Vienna Convention on Diplomatic and Consular Relations of

1961 and 1963. See id.

See id.

See id. at 111 (citing J.G. Merrills, The Optional Clause Today, 50 B.Y.B.I.L. 8 (1979)).

In 1993, 58 of 185 member States made such acceptances. See Report of the International Court of Justice, August 1,

1992-July 31, 1993, U.N. GAOR, 48th Sess., Supp. No. 4, at 3, U.N. Doc. A/48/4 (1993) [hereinafter 1992 Report].

Since August 1, 1992, two treaties providing for the jurisdiction of the Court in contentious proceedings and

registered with the Secretariat of the United Nations have been brought to the knowledge of the Court: the Convention

for the Suppression of Unlawful Acts against the Safety of Maritime Navigation concluded at Rome on March 10,

1988 (art. 16, para. 1); and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of

Chemical Weapons and on Their Destruction, done at Paris on January 13, 1993 (art. 14). In 1996, 59 out of 185

member States made such declarations with reservations. See 1995 Report, supra note 14, at 5. Since 1992, there have

been several additions to the list of treaties with jurisdiction clauses. See 1992 Report, supra at 3.

See Douglas J. Ende, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a

New United States Declaration, 61 Wash L. Rev. 1145, 1152-53 (1986).

The Court has interpreted Article 36 to require that when the Court is seized of a dispute on the basis of compulsory

jurisdiction, the reservations of each declaration will be binding on both parties, in the sense that each party is entitled

to invoke any relevant reservation appearing in either party’s declaration.

Id. at 1153.

See id. at 1152.

See id. at 1156 (discussing the reservations in State practice).

United States Declaration of Aug. 14, 1946, 61 Stat. 1218.

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See Singh, supra note 18, at 21.

See Kelly, supra note 3, at 140 (discussing Aerial Incident of 27 July 1955 (U.S. v. Bulg.), 1960 I.C.J. 146 (May 30)

where Bulgaria invoked the Connally Amendment reciprocally much to the embarrassment of the United States).

See Shabtai Rosenne, The World Court: What it is and How it Works 65, 68 (3rd ed. 1973) [hereinafter World Court];

see also Continental Shelf (Tunis. v. Libya), 1982 I.C.J. 18 (Feb. 24).

See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

See id.

See Shabtai Rosenne, Intervention in the International Court of Justice 28, 29 (1993) (setting forth the power of

intervention in Articles 62 and 63) [hereinafter Intervention].

See Merrills, supra note 20, at 116. Article 71 grants the World Court the power to revise a judgment; however, this

power can only be exercised if new facts are discovered that would have had a decisive effect on the decision. The

Court’s ability to interpret a judgment represents a broader power and, according to Article 60, can be performed at

the request of any party. See id. at 122.

See Merrills, supra note 20, at 116.

See id. at 122.

See id.

See The International Court of Justice: An Overview of Organs (visited Mar. 3, 1997)

<http://www.un.org/overview/organs/icj.html>.

See Leo Gross, The International Court of Justice: Consideration of Requirements for Enhancing its Role in the

International Legal Order, 65 Am. J. Int’l L. 253, 253 (1971) [hereinafter Consideration].

See Singh, supra note 18, at 219 (discussing the Court’s achievements and a statistical appraisal of both the World

Court and the Permanent Court of International Justice).

72 See id. at 219.

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See Leo Gross, Underutilization of the International Court of Justice, 27 Harv. Int’l L.J. 571, 573 (1986) [hereinafter

Underutilization].

See Singh, supra note 18, at 219.

See Underutilization, supra note 73, at 571.

See id. at 572.

See Consideration, supra note 70, at 253.

See Peace Palace, supra note 10, at 647.

See id. at 647 n.10 (citing Territorial Dispute (Libya v. Chad), 1990 I.C.J. 149 (Oct. 26) as an amalgam of application

and special agreement).

See Peace Palace, supra note 10, at 647 (discussing that the same judges were repeatedly used for chamber

assignments, which left other judges little to do, and whether such chambers could maintain their quality as judicial

institutions without inconsistencies rather than becoming arbitration panels). See also Land, Island and Maritime

Frontier Dispute (El Sal. v. Hond.), 1990 I.C.J. 3 (Feb. 28) (Shahabuddeen, J., dissenting) (denying the validity of the

chambers). See generally Andreas Zimmerman, Ad Hoc Chambers of the International Court of Justice, 8 Dick. J.

Int’l L. 1 (1989) (discussing the use of Chambers).

See Peace Palace, supra note 10, at 647.

See id. at 653. In 1991, two-thirds of the cases on the docket involved the law of the sea directly. The Court is on a

productive and convincing path toward mastery of the law of the sea, and has produced the only single body of

jurisprudence in the area from 1969 to 1991. See id. In 1991, Denmark, Bahrain, Chad, Finland and Qatar were new

parties to the Court. See id. at 652.

See id. at 654.

Is this all that bad a result? Perhaps it is the correct one for the next decade. The greater powers could not be expected

to abide by decisions of the Court in every instance; it is the lesser powers that by definition require the additional

strength and protection of the Court and it is by their participation and willingness to use the Court that new ground is

broken, and past prejudices and fears are set aside and allayed.

Id.

84 See Sir Robert Y. Jennings, Speech by Sir Robert Jennings, President of the International Court of Justice, to the U.N.

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General Assembly, 88 Am. J. Int’l L. 421 (1994). [hereinafter Speech by Sir Robert Jennings].

Gabcikovo-Nagymaros Project (Hung. v. Slov.), 1993 I.C.J. 151 (Dec. 20).

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1993 I.C.J. 467 (Sept. 13).

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.

(Serbia and Montenegro)), 1993 I.C.J. 3 (Apr. 8).

See 1992 Report, supra note 53, at 3.

Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 I.C.J. 38 (June 14).

See id.

See Gary L. Scott et al., Recent Activity Before the Court of Justice: Trend or Cycle? 3 ILSA J. Int’l & Comp. L. 1,

14 (1996); see also Maritime Delimitation in the Area between Greenland and Jan Mayen, 1993 I.C.J. 38.

See Speech by Sir Robert Jennings, supra note 84, at 421. (citing Certain Phosphate Lands in Nauru (Nauru v. Austl.),

1992 I.C.J. 345, 346 (June 29)).

Passage through the Great Belt (Fin. v. Den.), 1992 I.C.J. 348 (Sept. 10).

See Speech by Sir Robert Jennings, supra note 84, at 422.

See id. at 423.

See Peter H.F. Bekker, Current Development: 1993-1994 Judicial Activity of the World Court, 89 Am. J. Int’l L. 213

(1995) [hereinafter Current Development].

Report of the Secretary-General on the work of the Organization, September 1994, U.N. Doc. A/49/1 (1994)

[hereinafter 1994 Report].

Id. at 7.

Aerial Incident of 3 July 1988 (Islamic Rep. of Iran v. U.S.), 1994 I.C.J. 6 (Feb. 3).

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100

East Timor (Port. v. Austl.), 1993 I.C.J. 32 (May 19).

101

On March 12, 1991, the Government of the Republic of Guinea-Bissau filed an Application against the Republic of

Senegal in a dispute concerning the delimitation of maritime territories between the two States. Maritime Delimitation

between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), 1991 I.C.J. 53 (Nov. 8).

102

On July 8, 1991, the Government of the State of Qatar filed an Application against the Government of the State of

Bahrain concerning a dispute about the sovereignty of maritime boundaries between the two states. Maritime

Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bah.), 1994 I.C.J. 112 (July 1).

103

Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at

Lockerbie (Libya v. U.K.), 1995 I.C.J. 282 (Sept. 22).

104

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at

Lockerbie (Libya v. U.S.), 1995 I.C.J. 285 (Sept. 22).

105

The United States filed preliminary objections to the jurisdiction of the World Court. In January 1994, the President

of the Court set a time limit for the written statement by Iran on these objections. Oil Platforms (Islamic Rep. of Iran

v. U.S.), 1993 I.C.J. 35 (June 3).

106

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.

(Serbia and Montenegro)), 1993 I.C.J. 325 (Sept. 13).

107

Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1993 I.C.J. 319 (July 14).

108

Cameroon instituted proceedings against Nigeria in a dispute concerning questions of sovereignty over the peninsula

of Bakassi on March 29, 1994. Land Maritime Boundary between Cameroon and Nigeria (Cameroon v. Niger.), 1996

I.C.J. 13 (Mar. 13).

109

The World Court decided the Libya/Chad case on February 3, 1994. The U.N. Aouzou Strip Observer Group Council

(UNASOG) will implement the decision. See Territorial Dispute (Libya v. Chad), 1994 I.C.J. 6 (Feb. 3).

110

Certain Phosphate Lands in Nauru (Nauru v. Austl.), 1993 I.C.J. 322 (Sept. 13).

111

See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1993 I.C.J. 467 (Sept. 13).

112

See Peter H.F. Bekker, The 1995 Judicial Activity of the International Court of Justice, 90 Am.J. Int’l L. 328 (1996)

[hereinafter 1995 Judicial Activity].

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113

See id. (citing Fisheries Jurisdiction (Spain v. Can.), 1996 I.C.J. 58 (May 8)).

114

See id.

115

See Request for an Examination of the Situation in accordance with Paragraph 63 of the Court’s Judgment of 20

December 1974 in the Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288 (Sept. 22).

116

See Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. (July 8).

117

See 1995 Judicial Activity, supra note 112, at 328.

118

Certain Phosphate Lands in Nauru (Nauru v. Austl.), 1993 I.C.J. 322 (Sept. 13).

119

Territorial Dispute (Libya v. Chad), 1994 I.C.J. 6 (Feb. 3).

120

See 1995 Judicial Activity, supra note 112, at 329; see also infra note 142.

121

See id.

122

See id. (discussing Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1995 I.C.J. 3 (July 8) and

Legality of the Threat or Use of Nuclear Weapons 1996 I.C.J. (July 8)).

123

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1995 I.C.J. 6 (Feb. 15).

124

Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at

Lockerbie 282 (Libya v. U.K.), 1995 I.C.J. 282 (Sept. 9); Questions of Interpretation and Application of the 1971

Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), 1995 I.C.J. 285 (Sept. 9).

125

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. Herz. v. Yugo.

(Serbia and Montenegro)), l995 I.C.J. 80 (July 14).

126

Fisheries Jurisdiction (Spain v. Can.), 1996 I.C.J. 58 (May 8)).

127

East Timor (Port. v. Austl.), 1995 I.C.J. 90 (June 30).

128

See Peter H.F. Bekker, Recent Developments at the World Court, Am. Soc’y Int’l L. Newsl., Nov. 1995, at 1. On

September 22, 1995, the Court issued an order to dismiss the Request by New Zealand to reopen the nuclear test case,

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which claimed France’s atmospheric tests caused deposits of radio active fall-out on New Zealand territory. See id.

129

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1995 I.C.J. 3 (July 6) and Legality of the

Threat or Use of Nuclear Weapons, 1996 I.C.J. (July 8).

130

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), 1995 I.C.J. 6 (Feb. 15).

131

East Timor, 1995 I.C.J. 90.

132

See id.

133

See Peter H.F. Bekker, Recent Developments at the World Court, Am. Soc’y. Int’l L. Newsl., Sept. 1995, at 1

[hereinafter Recent Developments].

134

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20

December 1974 in the Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288, 307 (Sept. 22).

135

Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), 1995 I.C.J. 423 (Nov. 8). Agents

of Guinea-Bissau and Senegal informed the President of the International Court of Justice of their agreement to

discontinue the proceedings through letters dated November 2 and 6, 1995, respectively.

136

See Recent Developments, supra note 133.

137

See id.

138

See id.

139

See 1995 Report, supra note 14, at 39-41.

140

See Recent Developments, supra note 133.

141

See 1995 Report, supra note 14, at 37.

142

The General List is published yearly in the Report of the International Court of Justice, e.g., August 1, 1995-July 31,

1996 is in the General Assembly official records. See id. This General List for the perior August 17, 1995-July 31,

1996 contains the same as those which appeared on the list which appears above for the period 1993-1994, excluding

the East Timor case, the Libya/Chad case, and the Naura v. Australia case, and including the Fisheries Jurisdiction

case (Spain v. Canada), the New Zealand v. France case, the Kasili/Sedudu Island case (Botswana v. Namibia) and

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the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons requested by the United Nations. See

1994 Report, supra note 97.

143

See Recent Developments Mar.-Apr. 1997, supra note 25, at 1.

144

Andrew Rosenthal, No Ground Fighting Yet: Call to Arms by Hussein, N.Y. Times, Jan. 17, 1991, at A8.

145

See Joseph L. Daly, Is the International Court of Justice Worth the Effort, 20 Akron L. Rev. 391, 403 (1987).

146

See id.

147

Louis B. Sohn, Forum, American Acceptance of the Jurisdiction of the International Court of Justice: Experiences and

Prospects, 19 Ga. J. Int’l & Comp. L. 489, 489 (1989).

148

See Consideration, supra note 70, at 253.

149

See id. at 301.

150

See id. at 308.

151

See id. at 315.

152

See Kelly, supra note 3, at 129.

153

See id.

154

See id.

155

See id.

156

See Consideration, supra note 70, at 317.

157

See id.

158

See Falk, supra note 7, at 178-80.

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159

See id. at 179-80.

160

See id. at 190-91.

161

See W. Michael Reisman, Termination of the United States Declaration Under Article 36(2) of the Statute of the

International Court, in The United States and The Compulsory Jurisdiction of the International Court of Justice, Aug.

1985, at 73.

162

See id. at 74-75.

163

See Kelly, supra note 3, at 159.

164

Id. at 164.

165

Id. at 164.

166

Treaty of Amity, Commerce and Navigation, Nov. 19, 1974, U.S.-U.K., 8 Stat. 116 [hereinafter Treaty of Amity].

167

See Kelly, supra note 3, at 129.

168

Thomas M. Franck & Jerome M. Lehrman, Messianism and Chauvinism in America’s Commitment to Peace Through

Law, in The International Court of Justice at a Crossroads 3 (Lori F. Damrosch ed., 1987).

169

See Richard B. Bilder, The United States and the World Court in the Post “Cold War” Era, 40 Cath. U.L. Rev. 251,

253 (1991).

170

Kelly, supra note 3, at 135.

171

See Franck, supra note 168, at 18.

172

See Singh, supra note 18, at 225 (discussing the reasons why States use the International Court of Justice).

173

See Speech by Sir Robert Jennings, supra note 84, at 424.

174

Id. at 423. It should also be noted that the Court’s standing Chamber of Summary Procedure has never been

employed, although it is available for expedited cases. See Id.

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175

Id.

176

See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.), 1984 I.C.J. 246, 247 (Oct.

12).

177

See Bilder, supra note 169, at 256-57.

178

See Stephen M. Schwebel, Reflections on the Role of the International Court of Justice, 71 Wash. L. Rev. 1061, 1067

(1986).

179

See id.

180

See id.

181

See 1995 Report, supra note 14, at 5.

182

See Daly, supra note 145, at 403 (listing the strengths and weaknesses of the World Court).

183

See U.N. Charter art. 62; see also Taslim O. Elias, The Limits of the Right of Intervention in a Case before the

International Court of Justice, in Volkerrecht Als Rechtsordnung Internationale Gerichts Barkeit Menschenrechte,

(1983); Intervention, supra note 63, at 46.

184

See Schwebel, supra note 178, at 1070.

185

See U.N. Charter art. 33.

186

See U.N. Charter art. 95.

187

See Bilder, supra note 169, at 259.

188

See Peace Palace, supra note 10, at 654; see also supra text accompanying note 83.

189

See Barbara Kelly, The International Court of Justice: Its Role in a New World Legal Order, 3 Touro J. Transnat’l L.

223 (1992) [hereinafter New World Order].

190

See Anthony Clark Arend, The International Court of Justice, International Law, and United States Foreign Policy, in

The United States and the Compulsory Jurisdiction of the International court of Justice 189, 191-92 (1986).

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191

See New World Order, supra note 189, at 243.

192

See Recent Developments, supra note 133.

193

See Louis B. Sohn, Broadening the Advisory Jurisdiction of the International Court of Justice, 77 Am. J. Int’l L. 124,

124 (1983).

194

See id. at 125.

195

See generally Consideration, supra note 70.

196

See id.

197

Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11, 76.

198

See Consideration, supra note 70, at 309.

199

See id. at 312.

20 LYLAICLJ 1

End of Document

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