45th Agenda 

45th Session Issues

International Court of Justice

 

by
Kristina Moffitt & Paul Neuhausen

The International Court of Justice decides on cases which member states bring to it and gives legal advice to any UN organ. Since there is no international constitution, the Court bases its decisions on treaties, universal principles of law, international customs, and of course by precedent from similar cases. Those serving on the Court will not debate and vote on resolutions, but rather will hear three cases and make legal decisions based on arguments and the aforementioned methods for reaching a decision.

History

In 1899 during the Hague Convention for the settlement of International Disputes, the first delegates "called for the establishment of a permanent arbitrary body open to all states." The permanent court for arbitration was formed. Each state was represented by four members giving the permanent court of arbitration possible arbitrators from a pool of about 200. But the Permanent Court for Arbitration (PCA) only worked as long as the nation states wished to have their cases settled by an arbitrator.

In 1920, the permanent Court of Justice was formed by the League of Nations, a precursor to the United Nations. The permanent Court of Justice was eventually disbanded in 1946 when the League closed.

In 1945, while following article seven in the newly established United Nations Charter, the United Nations established the International Court of Justice (ICJ). The ICJ follows very closely in the footsteps of the permanent Court of Justice in the statute as well as in the Rules of the Court.

The Current International Court Of Justice

There are 15 judges who sit on the bench for the ICJ. Each judge is elected to a nine year term from General Assembly and Security Council nominations. No more than two nationals may represent the same state. The judges are elected based on individual qualifications meant to represent the legal systems and all the countries of the world. When a case comes before the court and no judges represents the nationalities of the parties, judges ad hoc can be added for the case in question. These judges have full voting rights just as all the other judges on the court. Cases are decided by a majority vote of the court, nine judges making a quorum. The president of the court votes in the event of a tie.

In order to make a ruling on a case, the court, following Article 38 of the statute, applies and interprets treaties, reviews international customs, general and international law. The International Court of Justice is based at the Peace Palace, at the Hague in the Netherlands. However it can work in any other location it deems necessary.

Among the main functions of the court today are to cover contentious cases, that is , cases covering a dispute among member nations. Any state can bring a case to the court as long as it follows any one of the following conditions:

  • The state must be a member of the United Nations;
  • The state is a party to the statute of the Court;

The state files a declaration accepting the Court's jurisdiction in accordance with the UN Charter and the statute and the rules of the Court with registrar of the Court. It also agrees to comply in good terms with the final decision of the court and accepts all the obligations of a member of the United Nations under the Charter. The other main function of the court is to act as an advisor to other UN organs and specialized agencies on questions of legal matters.

Current Issues

The court this year will hear the following cases:

  1. Greece vs. the former Yugoslav state of Macedonia: concerns the use of the name Macedonia.
  2. The United States of America vs. Iraq:
  3. International Terrorism, the Lockerbie incident.
  4. Vietnam vs. China, China vs. Vietnam (countersuit) over the Spratly and the Paracel Islands.

The Spratly and the Paracel Islands

The People's Republic of China (PRC) and the Socialist Republic of Vietnam have put forth overlapping claims to the Spratly and Paracel Archipelagoes in the South China Sea. Both archipelagoes are alleged to contain large reservoirs of petroleum and natural gas which will facilitate the economic growth of both nations.

In recent times both nations have set up military garrisons and airstrips in various locations on both archipelagoes and are prepared to defend their claims by force if necessary. In addition, other nations such as Taiwan, Brunei, Malaysia, and the Philippines lay claim to both archipelagoes although to a lesser extent than Vietnam and the PRC. The dispute between the PRC and Vietnam is the primary conflict in the region thus the individual arguments for each nation's respective case will be explored after presenting the established facts.

Established Facts

During World War II the Japanese Imperial Forces occupied the large island of Hainan, the Paracels, and the Spratlies. After Japan's surrender to the Allied forces at the end of World War II it signed a peace treaty in San Francisco in September 1951 renouncing all rights, titles, and claims to the Spratlies and Paracels. Vietnam, which attended the conference, affirmed its ownership of both the Spratlies and Paracels. The People's Republic of China (PRC) was not present at the meeting but did not assert any claim to the archipelagoes. In August, however, Zhou Enlai, Foreign Minister of the PRC, asserted a claim to both archipelagoes in a public announcement. Serious claims to both island chains did not begin until the early 1970s when the PRC began to purchase oil rigs from foreign companies and began to prospect the entire South China Sea. In 1976, an exploratory well was established on the Paracel Archipelago.

After North Vietnam finished the Vietnam conflict and reapportioned the southern region of the country, it assumed the claim held by the former Saigon government over the Spratly and Paracel Archipelagoes.

In April 1978, diplomatic relations between the PRC and Vietnam quickly broke after the discussion of the status of ethnic Chinese in Vietnam remained unresolved. After this impasse in Sino-Vietnamese relations the PRC began to increase its armed presence on the Paracel Archipelago. In 1979, an airstrip was built on the Paracels and in August of that year an air route was established between the archipelago and Hainan Island. By 1980, the Communist Chinese were making bi-weekly flights between the archipelago and Hainan. Recently, the PRC has bought new naval vessels and has inquired about a Ukranian aircraft carrier (Morrison, 1993). The PRC says the purchases are a means of increasing their self-defense posture in the South China Sea.

Prior Roles And Case Outlines

The PRC asserts that the archipelagoes have been used by Chinese fisherman since ancient times. It has increased its military efforts on the Spratlies and Paracels in order to legitimized its claims to them. Since the breakdown of Sino-Vietnamese diplomatic relations in the late 1970's the PRC has been concerned with securing its hold to the islands in lieu of good relations with Vietnam.

In addition, Vietnam took on the former Soviet Empire as a fraternal socialist partner in the late 1970's. Evidence for this is supported when in May 1978 a Soviet naval task force left Vladivostok for the South China Sea right after the fallout between Vietnam and the PRC. During February and March of 1979, a Soviet naval task force" entered Vietnamese waters for the first time and several ships later dropped anchor at Da Nang and Cam Ranh Bay."

As of April 1994, the PRC has entered into a joint venture with Crestone Energy Corporation of Denver, Colorado to detect and extract petroleum deposits in the Spratly and Paracel Islands. Vietnam immediately began a diplomatic attack on the PRC for its efforts with Crestone. Crestone Chairman Randall Thompson flew to Hanoi to inquire about a joint development effort between the PRC and Vietnam of various petroleum reserves. Vietnam rejected the idea.

The case of the PRC is constructed on the concept that it must protect itself against the encroachment of the Vietnamese, the Soviets (now the Russians), and any other adversary who contends with them over their alleged historical rights to the archipelagoes. In order to strengthen this argument the following disputed facts should be researched:

  • What historical evidence suggests the PRC has fished in the South China Sea since ancient times?
  • Was Zhou Enlai's declaration of sovereignty over the Spratlies and Paracels in 1951 valid according to the international community (the United Nations)?
  • By creating a joint venture with Crestone Energy Corporation did the PRC exacerbate relations with Vietnam?
  • Did the PRC's ties with Crestone Energy Corporation increase the validity of its claims over the Spratlies and Paracels with the international community (the United Nations)?
  • The PRC says it is purchasing new naval ships as a means of self defense against nations like Vietnam. What evidence is there that supports this contention? What evidence is there that contradicts this contention?
  • Are the PRC's current claims in the South China Sea recognized by the international community (the United Nations)?
  • Vietnam fears the PRC and its perceived expansionist policies will take over the power vacuum left by the departure of the former Soviet Empire and the United States when they left the South China Sea. Evidence for this contentions based on the fact that the PRC is purchasing new naval equipment.
  • Countering the PRC's move to enjoin a multinational corporation to search for petroleum, Vietnam has recently created a joint venture with Mobil Corporation to search for petroleum in the Spratly and Paracel Archipeligoes.

 

The case for Vietnam's claim to the archipelagoes can be strengthened by researching:

  1. What evidence is there, if any, that shows Vietnam's historical claims to the Spratlies and Paracels?
  2. Did the international community (the United Nations) recognize Vietnam's claim to the Spratlies and Paracels as it asserted in September, 1951?
  3. What evidence is there that shows the PRC is arming itself for offensive purposes as Vietnam contends?
  4. Does the joint venture with Mobil Corporation increase the validity that Vietnam asserts over the Spratlies and Paracels in the international community (in the United Nations)?
  5. Are Vietnam's current claims in the South China Sea recognized by the international community (the United Nations)?

Sources

Hamzah, B.A., What Can Be Done To Enhance Confidence. ISIS Malaysia, 1990, pp. 34.
Hindley, Michael and Bridges, James, "South China Sea: the Spratly and Paracel Island dispute," June 1994, Vol. 5, No. 6, The World Today, pg. 109-112.
Hitchcock Jr., David I., "East Asia's New Security Agenda, "Winter 1994, The Washington Quarterly, pg. 91-104.
Kristof, Nicholas D., "The Rise Of China, "November/December 1993, Vol. 72, No. 5, Foreign Affairs, pg. 59-74.
Lo, Chin-Kin, China's Policy Towards Territorial Disputes. Routledge, London and New York, 1989, pp. 212.
Morrison, David C., "The Pacific Card, "Summer 1993, National Journal, pg. 1908-1911.
Oil and Gas Journal, "Exploration heating in the South China Sea," Spring 1994, pg. 30.
Oliver, April, "The Dragon's New Teeth, "February 1994, The Nation, pg. 229-232.
Samuels, Marwyn S., Contest For the South China Sea, Methuen, New York and London, pp. 203.
Lissitzyn, Oliver J. The International Court of Justice. New York: Martin Press, 1951.
Rosenne, Shabtai. The World Court: What It Is And How It Works. Dobbs Ferry, N.Y. : Oceana Publications Inc., 1973.
The United Nations: MUNFW Handbook.