international court of justice (icj)
The International Court of Justice (ICJ) is the main judicial branch of the United Nations (UN), set up by the UN Charter in 1945. Its works began in 1946, when it replaced the Permanent Court of International Justice (PCIJ) with a statute very similar to that of the extinct organ, which was created under the League of Nations and existed from 1922 to 1946. The ICJ is located at the Peace Palace in The Hague, Netherlands.
The functions of the ICJ are (1) to settle legal disputes brought by States, in accordance with international law (CHARTER..., 1945, art. 94) - the contentious cases - and (2) to give opinions on legal questions submitted by UN organs and specialized agencies (CHARTER..., 1945, art. 96) - the advisory proceedings. The procedure adopted by the Court includes a written and an oral stage, after which follow the deliberations.
The Court is composed of fifteen judges, elected to nine-year terms. Judges do not represent their States - they are independent magistrates, elected regardless of their nationality, either possessing the qualifications required in their respective countries for appointment to the highest judicial offices, or being jurisconsults of recognized competence in international law (STATUTE..., 1945, art. 2). An absolute majority of votes in the United Nations General Assembly and in the Security Council is required for a candidate to become a member of the Court. Elections take place every three years for one third of the seats - five judges - and re-election is permitted. Among the elected judges, there cannot be more than one national of the same State. For the purposes of a particular case, the Court may also include upon the Bench nationals of the parties to sit as judges ad hoc.
The jurisdiction of the Court to adjudge contentious cases is established either by the recognition of its jurisdiction by the parties (for instance, a declaration of compulsory jurisdiction, or a special agreement by the Parties called Compromis) or as a consequence of a Treaty provision. Its decisions have binding force only to the parties on that particular case, and are final, not being subject of appeal.
Topic Area A: The Question of Sovereignty in Gibraltar (Advisory Opinion)
In 1713, representatives of five European States signed the Treaty of Utrecht, a series of peace treaties putting an end to the War of Spanish Succession (1701-13). Among other provisions, the Treaty included the cession of a small territory, the peninsula of Gibraltar, from the Kingdom of Spain to the United Kingdom. Article X of the Treaty affirmed that the British property over the land and its fortifications would be absolute and perpetual. At the same time, a clause ruled that, if the Crown of Great Britain ever decided to alienate the territory, the Crown of Spain would have preference on the transfer.
Three centuries later, the question of Gibraltar regained the attention of the international community, on a problem involving the interests of the two States and of the dependency itself. On the one hand, the UK and Spain are trying to solve an ancient dispute between two Kingdoms, with considerations of sharing the sovereignty over the territory. On the other hand, the people of Gibraltar demand to exercise their right to self-determination and reject the proposed system of shared sovereignty.
Over the years, the idea of eradicating colonialism has gained force in the international community, and the UN General Assembly's Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 sets as a role of the UN itself to "assist in the movement for independence in (...) Non-Self-Governing Territories" (UNITED NATIONS, 1960). In this sense, a new Constitution recognizing the right to self-determination of the people of Gibraltar entered into force in the territory in January 2007. The Constitution, according to the United Kingdom, was a result of aims to a modern relationship, not based on colonialism, between the dependency and the administering power.
Whilst for Gibraltar this new Constitution may have meant effective decolonization, neither the UK nor Spain recognize it as such. In fact, the property of the territory remains British, and Spain stands that decolonization without its partaking on the process would mean incompliance with Article X of the Utrecht Treaty.
Given its complex geopolitical issues, the Question of Gibraltar has entered the UN General Assembly's agenda in the 1960s, and is currently under discussion at the Special Political and Decolonization Committee (SPECPOL). However, within the Committee's discussions, several legal questions which surround the stalemate have arisen. If claims involving matters such as self-determination of peoples, territorial integrity, sovereignty of States and treaty interpretation are held on the negotiations, there is no certainty about the application of such rules and principles of international law to this particular situation.
Hence, the General Assembly is requesting the ICJ to render an advisory opinion on the subject, in order to obtain assistance so that SPECPOL can properly exercise its functions when addressing the policy to be followed regarding the question of Gibraltar. Judges are thus expected to determine the actual relevance of legal aspects to the geopolitical problem.
Topic Area B: Dispute concerning navigational and related rights (Costa Rica v. Nicaragua)
Since the decolonization of Central America, border disputes have resulted in several territorial issues regarding the property of rivers, canals and watersheds. The dispute between Costa Rica and Nicaragua in the area of the San Juan River is an example of these historical conflicts. The dispute began shortly after both States' independence from Spain, with the annexation of the area of Nicoya and Guanacaste - a previous Nicaraguan possession - by Costa Rica.
Subsequently, the two countries began to dispute the area of the San Juan River. In an attempt to settle the conflict, they signed the Caņas-Jerez Treaty on 15 April 1858, which provided for rules on the property and the use of the river between the Parties. However, the treaty, at the same moment that it set the river as a property of Nicaragua, gave Costa Rica perpetual rights over its waters. This fact has even permitted Costa Rica to put down Nicaraguan plans to make a canal on the river, pursuant to an arbitral award issued by the former President of the United States of America, Grover Cleveland, on 22 March 1888, on the interpretation of the Treaty.
On the 20th Century, the subject was not brought up by the parties until 1998, when Costa Rican guards were prohibited to patrol the river carrying guns, a fact that restarted the discussions. Nevertheless, on 28 September 2002 the parties signed the Tovar-Caldera agreement, in which Costa Rica agreed not to apply before the International Court of Justice against Nicaragua on a three-year period, in an attempt to solve the situation diplomatically.
After three years, the parties have reached a consensus on some of the subjects of the conflict; however, the situation regarding the use of the San Juan River remains a motive of discontentment. Therefore, on 29 September 2005, Costa Rica filed an application before the Court, claiming that the Nicaraguan government has imposed several restrictions to the navigation of Costa Rican boats. Examples of these restrictions are the imposition of high charges and the obligation of making successive stops at Nicaraguan military posts to report the names of the passengers and to obtain authorization to navigate.
Now, the judges of the Court shall deliver a decision on the case, discussing if the restrictions made by the Nicaraguan government to the navigation of Costa Rican boats amount to a violation of the Caņas-Jerez treaty, as well as if it is reasonable to determine reparations to Costa Rica.
References
UNITED NATIONS, Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514/1960.
UNITED NATIONS, Charter of the United Nations, 1945.
UNITED NATIONS, Statute of the International Court of Justice, 1945.
