International Courts

International Law: International Courts and Organizations

Introduction to International Courts

Judicial decisions rendered by international courts are important elements in identifying and confirming international legal rules. The most important international courts are the UN International Court of Justice, which mainly handles legal disputes between nations, and the International Criminal Court, which prosecutes individuals for genocide, war crimes, and other serious crimes of international concern. Resolutions and decisions of the UN and other international organizations now also have a great impact on the views and practices of sovereign states, sometimes leading to rapid formation of customary international law. States have given a very few international organizations, such as the European Union and the UN Security Council, the power to enact directly binding measures.

The first international organizations emerged in the 19th century. Technological advances such as the telegraph and the telephone, together with a rise in international trade, created a need for permanent international institutions to regulate problems that exceeded national boundaries. The earliest organizations of this type were specialized bodies such as the International Telegraphic Union (1865) and the Universal Postal Union (1874).

After World War I European countries created the League of Nations, an organization with a general mandate to maintain peace and prevent war. The League’s covenant was part of the Treaty of Versailles signed in 1919 to officially end the war. Pursuant to provisions in the covenant, the Permanent Court of International Justice was established in 1921 as the world’s first international court. Its role was to decide international disputes that were voluntarily submitted to the court by the nations involved, and to issue advisory opinions on disputes referred to it by the League. Although the court helped to develop international law, its judges were hampered by the lack of universal agreement on many aspects of international law.

The onset of World War II in 1939 proved the League of Nations ineffective in preventing hostilities. Equally unsuccessful was the Pact of Paris, also called the Kellogg-Briand Pact, a multilateral treaty renouncing the use of war that had been signed in 1928 and ultimately ratified by more than 60 nations, including Germany and Japan. After World War II ended in 1945 the United Nations replaced the League of Nations, and the International Court of Justice succeeded the Permanent Court of International Justice.

The United Nations Charter created elaborate machinery for maintaining peace and security and for solving disputes among nations. It also specifically directed the General Assembly to encourage the progressive development and codification of international law. To carry out this task, the General Assembly created two subsidiary organs: the International Law Commission (1947) and the Commission on International Trade Law (1966). Over the years the International Law Commission has prepared drafts of treaties codifying and modernizing a number of important topics of international law, including the law of the sea, diplomatic relations, consular relations, law of treaties between nations, succession of states in respect to treaties, law of treaties between nations and international organizations, immunity of states from the jurisdiction of other states, and the law of international freshwaters. The Commission on International Trade Law drafts texts on laws concerning international commerce and economic development. Upon acceptance by the General Assembly, drafts from the commissions usually are submitted to international conferences called by the UN for adoption of the respective conventions.

In some instances, the UN has organized conferences to discuss major international issues or to negotiate treaties without prior proposal by the International Law Commission. The most important example was the third UN Conference on the Law of the Sea, which terminated its work in 1982. The conference adopted a convention (which came into force in 1994) governing all aspects of the peaceful use of the oceans, including territorial boundaries, navigational rights, and economic jurisdiction (see Freedom of the Seas). Another example is the 1992 UN Conference on Environment and Development, held in Rio de Janeiro, Brazil, and informally known as the Earth Summit. The conference produced two major treaties: the Convention on Biological Diversity, which seeks to preserve the world’s biological diversity and promote the sustainable use of its components; and the Framework Convention on Climate Change, which seeks to limit industrial emissions of gases leading to global warming. Sometimes the UN convenes major conferences to assess progress and problems concerning a specific topic, without adopting a new agreement. Such conferences have been held on human rights and on the status of women worldwide.

A landmark in the development of international law occurred in 1998 at a UN diplomatic conference in Rome, Italy, when 120 countries adopted a treaty to establish the world’s first permanent international criminal court. Officially established in 2002, the International Criminal Court (ICC) operates independently of the United Nations and has the power to initiate investigations and prosecutions of war criminals, including those accused of genocide, crimes against humanity, and other serious crimes. Unlike previous war crimes tribunals, such as those created in response to atrocities in the former Yugoslavia and in Rwanda, the ICC’s jurisdiction is not limited to specific conflicts.” (1)

The Permanent Court of Arbitration and Other International Courts

Lassa Oppenheim, in the book entitled The Future of International Law, about The Permanent Court of Arbitration and Other International Courts, wrote in 1921: 9. It is noteworthy that the first Hague Conference established a permanent international arbitral tribunal and that the second Hague Conference decided on the establishment of an International Prize Court and produced a plan for a standing international court at The Hague. Hither to there have been no international courts for the decision of disputes, and if contending powers have been ready to refer their disputes to arbitration, they have always first had to form an arbitral tribunal; but now there is in existence an actual International Court of Arbitration, and other international courts are in contemplation.

Are International Courts Valueless if States Are Not Bound to Submit Their Disputes to Them?

Lassa Oppenheim, in the book entitled The Future of International Law, about Are International Courts Valueless if States Are Not Bound to Submit Their Disputes to Them?, wrote in 1921: 63. We next are faced by the objection, what possible value can the establishment of international courts possess if it be optional to states either to submit their causes to them or to rely on arms for a decision of those causes? It is, accordingly, asserted that such courts can only be of value if states place themselves under a permanent obligation to submit to them all or at any rate the greater number of their disputes. This leads to the question of obligatory arbitration treaties, which played so prominent a part at the second Peace Conference, and will surely come up again at the third Conference. I have not the slightest doubt that the third or some later Conference will agree on the obligatory reference of certain disputes between states to arbitration, but the matter is of quite subordinate importance so far as the erection of international courts is in question. Any one who contemplates international life and the relations of states to one another, without prejudice and with open eyes, will see quite clearly that, when once there exist international courts, states will voluntarily submit a whole series of cases to them. These will, at first, admittedly, be cases of smaller importance for the most part, but in time more important cases will also come to them, provided that the jurisprudence developed in them is of high quality, and such as to give states a guarantee for decisions at once impartial and purely jural and free from all political prepossessions. It is the existence of the institution which is the vital question now. Once the machinery is there, it will be utilized. In all states of the world there are movements and forces at work to secure the ordered and law-protected settlement of international disputes. The existence of an international court will strengthen these movements and forces and render them so powerful that states will scarcely be able to withdraw themselves from their influence. And the time when states were ready to draw the sword on every opportunity belongs to the past. Even for the strongest state war is now an evil, to which recourse is had only as ultima ratio, when no other way out presents itself.