The Statute of the International Court of Justice – Summary
What It Is
The Statute of the International Court of Justice is an international treaty that forms an integral part of the Charter of the United Nations (Article 92, UN Charter). Every member of the United Nations is automatically a party to the Statute. It establishes the ICJ, defines its composition, jurisdiction, procedure, and the law it applies.
The ICJ is the principal judicial organ of the United Nations. It sits permanently at the Peace Palace in The Hague, Netherlands. It was established in 1945 as the successor to the Permanent Court of International Justice.
Critical Preliminary Point
The ICJ is a court of States only. Natural persons — individual human beings — cannot be parties before the ICJ. Corporations cannot be parties. Only sovereign States recognised under international law can appear as parties. This is a foundational limitation that renders the entire Statute inapplicable to proceedings between individuals, individuals and corporations, or individuals and governments in domestic courts.
Structure of the Statute — Chapter by Chapter
Chapter I — Organisation (Articles 1 to 33)
Establishes the court and its composition. The ICJ consists of fifteen judges elected by the UN General Assembly and Security Council for nine-year terms, with no two judges from the same State. Judges are elected regardless of nationality from persons of high moral character who possess the qualifications required for appointment to the highest judicial offices in their own countries, or who are jurisconsults of recognised competence in international law.
Judges are independent — they do not represent their States and are not subject to instruction from any government. The court elects its own President and Vice-President for three-year terms. A quorum of nine judges is required to constitute the court.
Chapter II — Competence of the Court (Articles 34 to 38)
This is the heart of the Statute for present purposes and includes Article 36.
Article 34 — Only States may be parties to cases before the court. This is absolute. International organisations and individuals have no standing as parties.
Article 35 — The court is open to States parties to the Statute. Non-member States may access it on conditions laid down by the Security Council.
Article 36 — Jurisdiction. This article has six paragraphs and is the most significant provision in the Statute.
Paragraph 1: The jurisdiction of the court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. This is consensual jurisdiction — parties must agree to bring a dispute before the court, either by a special agreement (compromis) or through a compromissory clause in an existing treaty.
Paragraph 2: The optional clause — States may at any time declare that they accept the compulsory jurisdiction of the court in relation to any other State accepting the same obligation, in legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact constituting a breach of an international obligation, and the nature or extent of reparation.
Paragraph 3: Optional clause declarations may be unconditional or on condition of reciprocity, and may be for a specified time.
Paragraph 4: Declarations are deposited with the Secretary-General of the United Nations.
Paragraph 5: Declarations made under the old PCIJ Statute still in force are deemed to be acceptances of ICJ jurisdiction for their remaining period.
Paragraph 6: In the event of a dispute as to whether the court has jurisdiction, the matter shall be settled by the decision of the court. This is the doctrine of Kompetenz-Kompetenz — the court determines its own jurisdiction.
Article 37 — Where a treaty in force refers a matter to the PCIJ, it is referred to the ICJ instead.
Article 38 — The law to be applied. The court applies international conventions establishing rules expressly recognised by the contesting States; international custom as evidence of a general practice accepted as law; the general principles of law recognised by civilised nations; and, as subsidiary means, judicial decisions and the teachings of the most highly qualified publicists.
Chapter III — Procedure (Articles 39 to 64)
Governs how cases are brought before the court, written and oral proceedings, interim measures, judgments, interpretation of judgments, and revision.
Chapter IV — Advisory Opinions (Articles 65 to 68)
The court may give advisory opinions on legal questions at the request of bodies authorised to make such requests under the UN Charter. Only the General Assembly, the Security Council, and certain UN organs and specialised agencies so authorised may request advisory opinions. Importantly, individual States cannot request advisory opinions, and neither can individuals.
Chapter V — Amendment (Articles 69 to 70)
Provides for amendment of the Statute through the same process as amendment of the UN Charter.
Article 36 — Clarification for the Context of the Previous Image
Article 36 does one thing: it defines when the ICJ has jurisdiction over disputes between States. It deals with consensual jurisdiction through special agreements and treaty compromissory clauses, optional clause declarations, and self-determination of jurisdiction.
It has no application to:
- proceedings in Australian domestic courts;
- proceedings between an individual and a government;
- proceedings between two private parties;
- any situation in which a party invokes an international treaty as a defence in domestic criminal or civil proceedings;
- any power or authority of a domestic judge in any jurisdiction.
The claim in the image that Article 36 provides a basis for a domestic judge to refuse to hear a matter in which an international treaty is cited as a defence is simply a misreading — or misrepresentation — of the provision. The article says nothing of the kind. It is an arcane provision of international institutional law concerned with the consent of sovereign States to international adjudication.
The Correct Domestic Position on Treaties
For completeness, the correct position in Australian domestic law — as established in Teoh (qualified by Lam) and confirmed in the ALRC Report 127 — is that:
International treaties ratified by Australia but not enacted into domestic legislation do not directly create rights or obligations enforceable in Australian courts. However, ratification may create legitimate expectations in administrative law that decision-makers will act consistently with treaty obligations. Courts may use unincorporated treaties as an aid to statutory interpretation and in the development of the common law.
A domestic judge has no basis in Article 36 of the ICJ Statute — or anywhere else in the Statute — to decline to hear a matter merely because a party invokes an international treaty. The appropriate response to a treaty argument in a domestic court is to assess whether the treaty is relevant to statutory interpretation or has given rise to a legitimate expectation on the Teoh principles — not to refuse jurisdiction.
Nemo judex in causa sua — no one shall be a judge in their own cause.
But equally, every judge must be a judge in the causes properly before them. Declining to hear a constitutional or treaty-based argument is not judicial restraint. It is a failure of judicial duty.
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