A Forum With H.E.

Yuji
Iwasawa
“The Future of ICJ: Prospects
and Challenges”
Judge Iwasawa
It could be the part of the
presentation where you can
introduce yourself, write your email…
“Impressively smart yet modest”
一 Paul Stephen
 JUDGE YUJI
IWASAWA
● Born in Tokyo, Japan, on 4 June 1954.
● Education:
○ LL.B., University of Tokyo, Faculty of Law (1977);
○ LL.M., Harvard Law School (1978);
○ S.J.D., University of Virginia School of Law (1997)
● President of Japanese Society of International Law (since 2016);
● Judge and Vice-President, Asian Development Bank Administrative
Tribunal (Judge, 2004-2013) [9 years]
● Member of the Court since 22 June 2018
Table of
contents

01 02 03 04
About the ICJ Jurisdiction Decisions Challenges Faced
Introduction to the A discussion on the How decisions of the Court Judge Iwasawa gives 5
International Court of Jurisdiction of the Court affect the international challenges faced by the ICJ
Justice scene
 01
About the ICJ
Introduction to the International Court of
Justice
 01
About
BASICS OF THE ICJ
● The International Court of Justice (ICJ) is the principal judicial organ of the
United Nations (UN). It was established in June 1945 by the Charter of the
United Nations and began work in April 1946
● The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of
the six principal organs of the United Nations, it is the only one not located
in New York (United States of America)
● The Court’s role is to settle, in accordance with international law, legal
disputes submitted to it by States and to give advisory opinions on legal
questions referred to it by authorized United Nations organs and specialized
agencies.
● The Court is composed of 15 judges of different nationalities, who are
elected for terms of office of nine years by the United Nations General
Assembly and the Security Council. It is assisted by a Registry, its
administrative organ. Its official languages are English and French
 01
About
BASICS OF THE ICJ
● In the proceedings before the ICJ, Judges of the nationality of each party
retain their right to sit in the case. If a party does not have a Judge of it’s
nationality on the bench, it has a right to choose a Judge ad hoc who may
be of any nationality.
● The court proceedings may be conducted by a small chamber consisting of
3-5 Judges rather than the preliminary (full bench). The authority and
binding force of chamber decisions are the same as those rendered by the
full court.
● The Jurisdiction of ICJ is based on the consent of the states.
In the proceedings before
the ICJ, consent may be
expressed in 4 ways
 01
About

4 WAYS OF EXPRESSING CONSENT

1. The conclusion of a Special agreement
2. Inclusion of a compromissory clause
3. Forum prorogatum
4. Submission of Declarations recognizing the jurisdiction of the
Court as compulsory
 01
About
1. The conclusion of a Special agreement
○ By which the parties to a dispute agree to refer the
particular dispute to the Court.
○ Article 36, paragraph 1, of the Statute provides that the
jurisdiction of the Court comprises all cases which the
parties refer to it. Such cases normally come before the
Court by notification to the Registry of an agreement
known as a special agreement, concluded by the parties
especially for this purpose. The subject of the dispute and
the parties must be indicated (Statute, Art. 40, para. 1;
Rules, Art. 39).
 01
About
2. Inclusion of a compromissory clause
○ In bilateral or multilateral treaties by which state parties
agree in advance to take a dispute to the Court.
○ Multilateral treaties such as the Genocide Convention and
Racial Discrimination Convention are also often invoked
○ The Bilateral Treaty of Amity between Iran and the United
States has provided a basis for the court to entertain
several cases between the two countries. (Judge Iwasawa
participated in 2 of these cases)
○ In these cases, the jurisdiction of the Court is limited to the
interpretation or application of the treaties
 01
About
3. Forum prorogatum
○ If a State has not recognized the jurisdiction of the Court at
the time when an application instituting proceedings is
filed against it, that State has the possibility of
subsequently accepting such jurisdiction to enable the
Court to entertain the case: the Court thus has jurisdiction
as of the date of acceptance under the forum prorogatum
rule.
○ Jurisdiction based on an ad hoc consent given by the
respondent state after the case has been brought to the
Court by the applicant.
○ This does not happen frequently. The court is cautious in
using his way.
 01
About
4. Submission of Declarations recognizing the jurisdiction of the
Court as compulsory
○ The States parties to the Statute of the Court may “at any
time declare that they recognize as compulsory ipso facto
and without special agreement, in relation to any other
State accepting the same obligation, the jurisdiction of the
Court” (Art. 36, par. 2, of the Statute or so-called “optional
clause”)
○ This clause provides the basis of the compulsory
jurisdiction of the court
 01
About
4. Submission of Declarations recognizing the jurisdiction of the Court as
compulsory
○ The compulsory jurisdiction is far the from reality:
■ Only one-third of the member of the UN, namely 73 States
have made such declarations
■ There is a reservation to exclude particular categories of
disputes from the jurisdiction of the Court
● Examples: Reservations excluding disputes involving
military activities, territorial sovereignty, or fisheries
in the EEZ
● Reservations may be invoked on a reciprocal basis,
therefore, a respondent state can invoke the
reservation made by the applicant to deny the
jurisdiction of the court.
 02
Jurisdiction
Introduction to the International Court of
Justice
compétence de la compétance
Foundational principle of modern law
of arbitration

An arbitral tribunal is competent to

decide its own competence.

The tribunal has jurisdiction to decide

its own jurisdiction.
The court needs to examine such preliminary questions as to whether:

● There is a dispute
● The procedural conditions proceedings of the court are met
● The dispute falls within the material scope of the treaty in question
● Admissibility is a question separate from the jurisdiction of the court. The court may
find the claims of the applicant state inadmissible even when it has jurisdiction over
the claim.

● The reasons invoked in inadmissibility include:

○ The lack of standing of the applicant
○ The necessity of the participation of the third party-state
○ Abuse of process
 France and the Nuclear Test
Case; Iran and the Tera

Cases of non-
hostage Case;

appearance by and the US in the Nicaragua

Case.

respondent In such cases, the Court must

states in the
South West African Case of
1970s and 1980s 1996
Ethiopia & Liberia
Court denied the standing of
the two applicants; Ethiopia
and Liberia
satisfy itself not only that it
has jurisdiction but also that
the claims are well-founded
in fact and law.
In practice, non-appearing
states often and officially
submit statements
explaining their views. The
Court usually takes into
consideration such
documents when deciding
the case.
 Provisional
Measures
Are requested to
Preliminary
preserve the rights of
the parties pending the
final decision of the Objections
Court.
Made by the respondent
Requests for the state to the jurisdiction of
indication of the Court and/or the
provisional measures admissibility of the
have priority over all application.
other cases.
The Court rules in the form
For such a request to be of a judgment. Court either
upheld, the following 4 upholds or rejects the
conditions have to be objections; or
met: alternatively, the Court
may declare that the
objection doesn't possess
an exclusively preliminary
character and that the
Court will deal with it at
the merits of the case.
3 Types of
Incidental
Proceedings
Intervention by the Court is often asked to
decide or bear requests
Third States
and objections before
the merit stage
Two options are available
in this regard,
the third state may
intervene in the case when
it has an interest legal
nature that may be
affected by the decision;
or when it is a party to a
treaty which is subject to
examination.
 03
Decisions
Introduction to the International Court of
Justice
 03
Decisions
● A decision of the Courts are binding on the parties to the case
and is final. In general, the decisions of the Court are
implemented rather well by the parties this is particularly so
when the case is brought jointly by the parties by means of a
special agreement. By contrast, there are some instances of non-
compliance by a respondent State when a case has been brought
unilaterally.
● When a party fails to implement a judgment by the Court, the
Charter of the UN provides that the other party has recourse to
the Security Council which may, if it deems necessary, make
recommendations or decide measures to give effect to the
judgment.
 03
Decisions
● Invoking Article 94 par. 2, the Permanent members of the
Security Council has the power of Veto and in practice, there has
only been 1 case in which this mechanism has been used and in
that case, the Security Council could not adopt any measure
because of the Veto for the implementation of the judgment.
Thus the mechanism for the execution of the judgment of ICJ
through the Security Council is far from satisfactory.
 03
Decisions
● In addition to settling international disputes through contentious
proceedings, the ICJ gives advisory opinions at the request of the
UN organs or specialized agencies. In order for the Court to have
jurisdiction to give an advisory opinion, it is necessary that:
○ Firstly, the requesting body is authorized to make a request
○ Secondly, the opinion must be requested on a legal
question and
○ Thirdly, the legal question must be matters recognized by
the UN Charter and according to the Charter, while the
General Assembly and the Security Council may request an
opinion any legal question other UN organs and specialized
agencies may request an opinion only on legal questions
arising within the scope of the activities.
 03
Decisions
● In the legality of the use of Nuclear Weapons Case, the Court found that
the question posed by the WHO did not fall within the scope of its
activities
● It is not mandatory for the Court to give an advisory opinion, it is within its
discretion to do so, however, because the Court is a principal organ of the
UN, the Court should not refuse to give an opinion.
● The Court considers that it may refuse to give an opinion only if there is a
compelling reason for it do so. These are cases relating to an existing
interstate dispute.
● The Court has given advisory opinions touching on interstate disputes,
examples include Namibia in 1971, Western Sahara in 1975, Construction
of wall in the Palestinian Territory 2004, and Chagos Archipelago 2019
● The Court had affirmed that it should refrain from giving an opinion when
doing so has the effect of circumventing the consent of States to the
judicial settlement of the dispute.
 04
Challenges Faced
Judge Iwasawa’s thoughts on the
prospects of ICJ and the Challenges it
faces
04
Important trend for the past three decades
and continues is the increase of case law of

Challenges Faced the Court.

From 1946-1989 there were 54 decisions,

while in the 1990s it quickly increased to 80
more.

2000 - July 2019 64 decisions and 4 advisory

opinions

The current Court docket has 16 pending

cases

The court has received requests for the

indication of provisional measures, in only 5
cases in 1989. Since 1990 has received such
requests in 33 cases.
This trend reflects the confidence states
have in the court.
04
Challenges Faced “The court has received requests for the
indication of provisional measures, in only 5
cases in 1989. Since 1990 has received such
requests in 33 cases.”

This trend reflects the confidence states have

in the court.

While states have many options available to

them for solving international disputes
peacefully, in the last 3 decades, much trust
has been placed in judicial settlement,
including recourse to the ICJ.
 1. Having recourse to the court depends entirely on the will of the states.
Acceptance of Jurisdiction, 300 treaties include compromissory clauses

The Challenges and 73 states have made declarations under the optional clause

faced by the Challenge: maintain and increase these numbers so that more

Court
states have the option of bringing disputes to the ICJ
 3. Diversification of legal problems with the increase in case law

Territorial questions or maritime delimitations (usual cases)

Recent cases: diverse issues: Consular access, human rights, use of force,
economic sanctions

The Challenges Complex questions concerning environmental issues

faced by the Function: deliver judgment in accordance with law / international law
Court
Often required to evaluate scientific and technical data in order to arrive at the
judgment, which is the challenge of the ICJ

In some cases, parties present evidence in the form of reports of experts or bring
experts as members of the delegates. In some cases, the parties have called
experts, and the experts have been subject to cross-examination.

Additional, the court appoints its own experts which has been exercised in 3
cases
 4. In light of the court’s growing docket, it is important to raise further awareness
about the work of the court and to force the trust in the institution.

Technological advancements:
The Challenges working website where information about the court and its procedures
faced by the are posted

Court Hearings are regularly streamed live on the webcast

2019: Launched a mobile app

Increase visibility and awareness of the court

 5. R E S O U R C E S

Budget of the ICJ amounts to less than 1% of the budget of the United
Nations
The Challenges But the staff is more compared to that of any international tribunals
faced by the including that of the ICC

Court Case load continue to increase

Due to budget constraints currently faced by the UN, it is essential that they
find ways to provide the resources needed by the court in order to
adequately perform its functions.
ICJ Launched
an App
Information on the court,
past decisions
Thank you!