Essay on "International Court of Justice and Its Stance"

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III. Definition of a 'Legal' Dispute 12

IV. Dissemination of the Issue of Justiciability 13

Findings of the Study

Bibliography

EXAMINATION of INTERNATIONAL COURT of JUSTICE and ITS STANCE on RESOLUTION of LEGAL DISPUTES CONNECTED to a BROADER POLITICAL DISPUTE

INTRODUCTION

This work examines the International Court of Justices' stance in relation to its avowed non-refusal in resolving legal disputes that are connected to or part of a broader political dispute. This work focuses on the critical analysis of whether the International Court of Justice (ICT) has adopted a convincing and consistent approach to this issues of justicability. The International Court of justice handles two types of cases:

1) Advisory proceedings - on legal questions referred to it by UN organs and agencies; and 2) Contentious proceedings - when the dispute is brought before the Court by a unilateral application filed by one state against another state.

The work of Wallace-Bruce (1998) entitled: "The Settlement of International Disputes: The Contribution of Australia and New Zealand" describes an international dispute as:

disagreement between states, and/or, international organizations, or in some limited situations between states and individuals." A dispute between a foreign national and a host state may also turn into an international dispute under certain conditions. The dispute may be between two or more parties and may raise legal or factual issues or both; but it must be capable of objective legal determination." (Wallace-Bruce, 1998)

The work of Brownlie entitled: "The Rule of International Affairs: International Law at the Fiftieth Anniversary of the United Nations" relates that jurisdiction is only one objection that may be made by states in relation to the International Court of Justice and its authority in conferring jurisdiction. Also, a highly controversial area is that of 'justiciability' in that the contention has been that the Court "should not exercise jurisdiction in respect to 'political' disputes. However, this line of arguments tends to fail provided the tribunal can discern discrete issues of act and law, in spite of the political background and ramifications of a particular dispute." (Brownlie, 1998)

The question of justiciability is one that involves "considerable difficulty, certain specific issues have emerged from the experience of international tribunals and counsel." (Brownlie, 1998) Brownlie states that the subject matter related to justiciability is theoretically extensive in nature. Stated to be cases of non-justiciability are those as follows:

1) the International Court cannot indicate how a judgment should be carried out;

2) There must be a dispute in existence;

3) There must be a legal dispute in existence;

4) it is sometimes argued hat certain types of dispute are non-justiciable because the relevant rules or treaty provisions are to be classified on pragmatic legal grounds as not susceptible to judicial examination;

5) the precise ground of decision of the International Court in the case concerning the Northern Cameroons (Cameroon v. United Kingdom) was the unwillingness of the Court to respond to a request for a declaration as to the existence or not of certain alleged violations of the Trusteeship Agreement in the document of the United Kingdom of the plebiscite in the Northern Cameroons; and 6) the existence of alternative dispute settlement machinery which has priority either as a matter of treaty obligations or as a necessary implication from the regular resort by the parties to bilateral machinery may provide a ground of non-justiciability." (Brownlie, 1998)

METHODOLOGY

The methodology of this present study is qualitative in nature and is conducted through an extensive review of literature and presentation of a case study of the literature reviewed in this area of study.

REVIEW of LITERATURE

I. Overview of the Process of the International Court of Justice (ICJ)

The work of Allee and Huth (2006) entitled: "Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover" published in the American Political Science Review states that it is maintained by realists that "states should be very unlikely to seek international arbitration or adjudication to resolve their disputes, particularly when the dispute involves fundamental security issues." (Allee and Huth, 2006) the historical record is stated by Allee and Huth to demonstrate "...on several occasions states successfully have resolved many types of disputes through international legal bodies." (2006)

Stated as a reason that states seek to settle territorial claims through the International Court of Justice (ICJ) is that the judges "...who hear the dispute are predetermined, because they were elected for a fixed term at some earlier date" which serves to enhance the fairness of the proceeding. Additionally, justices being drawn from a number of various countries results in a higher level of fairness. " (Allee and Huth, 2006) the disputants are stated to have some control relating to who is selected to serve on the arbitration panels but that however, the prevailing pattern is that an equal number of panelists from both disputants serve on the panel, and they are coupled with additional members drawn from neutral countries. In decision should find it hard to argue convincingly that the membership of an international panel or court was stacked against its country's interests and was tilted in favor of the adversary." (Allee and Huth, 2006) Additionally it is stated by Allen and Huth that the decisions of the legal bodies "should be viewed as legitimate on procedural grounds." (2006)

Decisions based on a more formal and structured process help to ensure that each side has the full and equal opportunity to advance all of its arguments and evidence. Indeed, one legal scholar argues that before the ICJ states "have freedom to introduce, more or less, whatever evidence they may consider appropriate to prove their cases. Therefore, decisions issued by third-party bodies are likely to be based on a full consideration of both sides' claims." (Allee and Huth, 2006)

Stated third is that on substantive grounds "...the explicit consideration or reliance on legal principles bolsters the legitimacy of decisions reached by third-party arbitration panels and courts." (Allee and Huth, 2006) This is stated to be due to the fact that legal principles make provision of what is a "...general and common set of prevailing standards by which to assess the merits of rival claims" (Allee and Huth, 2006)

Stated finally is the legitimacy of international legal awards is enhanced by the fact that both states agree in advance to accept the final ruling when they submit the dispute for legal dispute resolution. Incumbent governments can justify compliance with the third-party ruling by claiming that their country's general international reputation is at stake. Potential domestic critics of the settlement agreement will have a difficult time claiming the ruling should not be respected. To reject a third-party ruling would invite charges by the government that the domestic critics are irresponsible and that their policy of opposition would damage the country's reputation for honoring its international obligations." (Allee and Huth, 2006)

II. Examination of the Issue

The work of Coleman (2003) entitled: "The International Court of Justice and Highly Political Matters" states that there has been the expression of concern relating to the ability of the International Court of Justice to "make a valid contribution to the resolution of highly political matters - those matters where the national interests of nation states are threatened." (Coleman, 2003) it has been traditional procedure for "domestic or national courts in western legal systems have considered themselves to be inappropriate fora for resolving highly political issues. This judicial reticence is based on the separation of powers theory advanced by the French political theorist Baron de Montesquieu, but also exists for pragmatic reasons. At the international level, concerns about the… READ MORE