Established in 1946, the International Court of Justice (ICJ or the Court) became the principal judicial organ of the United Nations (UN). It assumed the mandate of its predecessor, the Permanent Court of International Justice and is therefore responsible for settling legal disputes between states in accordance with the principles of international law. It also issues advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies.
The ICJ’s operations to this day are grounded in its Statute – annexed to the Charter of the United Nations – and its Rules, which govern, among other things, its rules of procedure. The ICJ is composed of 15 elected judges and has jurisdiction over legal disputes concerning the interpretation of a treaty; a question of international law; the existence of a fact which, if established, would constitute a breach of an international obligation; or the nature or extent of the reparation to be made for the breach of an international obligation. Only states may institute proceedings before the Court in respect of contentious cases. The ICJ also has advisory jurisdiction; in that context, it may issue an opinion on any legal questions at the request of any organ or agency authorized to submit such a request under the Charter of the United Nations. With regard to the enforcement of its decisions – which has drawn criticism in the international legal community – it is governed by the Charter of the United Nations and depends on either the goodwill of states or recourse to the United Nations Security Council.
The Court’s operations have not changed over its 80-year history, and Canada has appeared before it on more than one occasion. Canada’s most recent declaration recognizing the compulsory jurisdiction of the ICJ was filed in August 2023 and includes six reservations. At present, Canada is a party to four pending contentious cases before the Court.
Despite this stable operation and the fact that states, including Canada, have made use of this international court since 1946, a number of concerns have been raised over the years with respect to the Court, at times casting doubt on its judicial independence. In this regard, the Court has been criticized not only for the absence of effective enforcement mechanisms, but also for a lack of representativeness within the judiciary, due in part, according to many legal experts, to the almost automatic election of judges from the five permanent members of the United Nations Security Council. Indeed, judges who are nationals of the five permanent members of the United Nations Security Council have enjoyed an almost uninterrupted presence on the Court since its establishment, resulting in a clear and significant disparity compared with judges from other UN member states.
Notwithstanding this criticism, the ICJ remains a symbol of international law and a well-established legal forum. Over the years, it has demonstrated that international law can serve as a tool to address power dynamics on the global political stage, thereby allowing otherwise marginalized voices to be heard.
Read the full text of the HillStudy: The International Court of Justice
By Valérie Chevrier-Marineau, Library of Parliament
Categories: Executive summary, International affairs and defence, Law, justice and rights