Jurisdiction of The International Court of Justice - The ICJ and The Security Council

The ICJ and The Security Council

The relationship between the ICJ and the Security Council, and the separation of their powers, was considered by the Court in 1992, in the Pan Am case. The Court had to consider an application from Libya for the order of provisional measures to protect its rights, which, it alleged, were being infringed by the threat of economic sanctions by the UK and USA. The problem was that these sanctions had been authorised by the Security Council, which resulted with a potential conflict between the Chapter VII functions of the Security Council and the judicial function of the Court. The Court decided, by eleven votes to five, that it could not order the requested provisional measures because the rights claimed by Libya, even if legitimate under the Montreal Convention, could no longer be upheld since the action was justified by the Security Council. In accordance with Article 103 of the UN Charter, obligations under the Charter took precedence over other treaty obligations.

There was a marked reluctance on the part of a majority of the Court to become involved in a dispute in such a way as to bring it potentially into conflict with the Council. The Court stated in the Nicaragua case (Jurisdiction) that there is no necessary inconsistency between action by the Security Council and adjudication by the ICJ. However, where there is room for conflict, the balance appears to be in favour of the Security Council.

Should either party fail "to perform the obligations incumbent upon it under a judgment rendered by the Court", the Security Council may be called upon to "make recommendations or decide upon measures" if the security council deems such actions necessary. In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to enforce consequences. However, in theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and without appeal," and "by signing the Charter, a State Member of the United Nations undertakes to comply with any decision of the International Court of Justice in a case to which it is a party".

For example, in Nicaragua v. United States the United States of America had previously accepted the Court's compulsory jurisdiction upon its creation in 1946 but withdrew its acceptance following the Court's judgment in 1984 that called on the United States to "cease and to refrain" from the "unlawful use of force" against the government of Nicaragua. In a split decision, the majority of the Court ruled the United States was "in breach of its obligation under customary international law not to use force against another state" and ordered the US pay reparations (see note 2), although it never did.

Examples of cases include:

• A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law.
• A dispute between Tunisia and Libya over the delimitation of the continental shelf between them.
• A dispute over the course of the maritime boundary dividing the U.S. and Canada in the Gulf of Maine area.
• A complaint by the Federal Republic of Yugoslavia against the member states of the North Atlantic Treaty Organisation regarding their actions in the Kosovo War. This was denied on 15 December 2004 due to lack of jurisdiction, because the FRY was not a party to the ICJ statute at the time it made the application.

The last example can be used as evidence of the Court's failure to take on politically controversial cases; as the Court has no means to enforce its rulings, its survival is dependent on its political legitimacy. That would be endangered if it constantly came with rulings which states have no interest of taking into consideration. This is one of the Court's major shortcomings: its rulings must be considered in a political context.