In Focus

International Law under Scrutiny: The Challenges & Impediments of International Courts

RemofiloeThe establishment of international courts came about in order to facilitate the role of the United Nations (UN) in attaining and maintaining international peace and security; achieving international cooperation in solving social, cultural, and humanitarian problems, promoting respect for human rights and fundamental freedoms; and to be a centre for harmonizing the actions of nations in attaining these ends1. International courts that mediate and preside over matters with legal impacts between states and between states and authorised organs and agencies of the United Nations include the International Court of Justice (ICJ), the International Criminal Court (ICC) as well as the Permanent Court of Arbitration (PCA), with the ICC being the most famous one.

The oldest legal institution of the United Nations is the PCA, which was established in 1899 in order to facilitate arbitration and other forms of dispute resolution between states; it is not a court in the traditional sense and should not be confused with the International Court of Justice since the PCA is not a UN agency, but a permanent framework for arbitral tribunals constituted to resolve specific disputes. The PCA has jurisdiction over matters relating to territorial and maritime boundaries, sovereignty, human rights, international investment and regional trade with its decisions being binding on all parties in the dispute and have to be carried out without delay2.

In the PCA’s 117 year history, only 16 arbitration outcomes were accepted by the parties involved, recently the PCA ruled against China in a case submitted by the Philippines regarding the sovereign rights over the South China Sea3, a decision China has rejected. The PCA does not have the ability to enforce any of its decisions, should one of the parties involved in a dispute choose to reject the court’s decision it would be much like when a country violates any other agreement. The aggrieved country could go to war, impose sanctions, try to get a UN Security Council resolution, or just make a lot of diplomatic protestations and the most the violator would suffer is losing popularity in the court of public opinion.

The International Court of Justice is the principal judicial organ of the United Nations and all members of the United Nations are parties to the ICJ-by being parties, they undertake to comply with all the decisions taken by the court in a case they are parties to. It was established in June 1945 by the Charter of the United Nations. The ICJ has jurisdiction over two types of cases; contentious cases between states in which the court will hand down binding rulings between states that have agreed to submit to the ruling of the court as well as jurisdiction over questions submitted to it requesting clarification of certain principles and norms of international law where the court hands down reasoned but non-binding advisory opinions4.

The court’s decisions are only binding to states that have agreed to appear before it and to be bound by its rulings. As of November 2016, the ICJ has had 165 cases entered onto the General List for consideration before the court. A number of the court’s decisions have been and continue to be ignored by the losing parties; Israel rejected the court’s advisory opinion that the separation wall it had constructed in the occupied Palestinian territories was a violation of the United Nations Charter and the wall was to be deconstructed immediately with those affected being compensated. Five years after this ruling, Israel went on to expand the wall into occupied Palestinian territories5.

The ICC began functioning on 1 July 2002, the date that the Rome Statute6 entered into force. It has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The court was only intended to complement existing national judicial systems and only being a court of last resort stepping in when national courts are unwilling or unable to prosecute criminals or when a matter is submitted to it by a state or the United Nations Security Council. At the time of writing, the ICC has ten situations under investigation, nine are on the African continent, Central African Republic with two situations, Uganda, Mali, Democratic Republic of the Congo, Sudan, Kenya, Libya, Côte d'Ivoire, Libya, and Georgia; of the cases on the African continent, five were referred by their own governments.

The PCA, ICJ and ICC are all facing individual credibility crises due to a number of limitations they cannot seem to escape; with their inability to enforce their decisions on states due to the sovereign nature of these states as their biggest limitation. The courts’ dependence on states for recognition and legitimacy, resources, assistance in investigating situations as well as detaining accused individuals is another limitation to their effectiveness. The lack of independence from the veto power of the five permanent members7 of the United Nations Security Council is another limitation to the courts’ abilities; if any of the permanent five perceive possible intervention by these courts to be in contradiction to its domestic policies and interests, they have the authority to veto such a move. This includes those three members8 who are not party to the Rome Statute. The ICC in particular has a turbulent relationship with the African continent as most African leaders see it as being biased against them, allegations that were fuelled in 2009 when the Prosecutor of the ICC issued the first warrant of arrest for Omar Al-Bashir, the sitting President of the Republic of the Sudan9.

The shortcomings that are mentioned about international courts would lead one to assume that they would not have any members or that African leaders in particular would stay away from these institutions however this is not the case as there are more African states party to the Rome Statute than any other regional group. This then leads to the question of how the establishment of these international courts affects state sovereignty and why states continue to recognise and legitimise them? Are these courts infringing on state sovereignty or are they there to facilitate peaceful coexistence between states in an increasingly anarchic world?

Ms Remofiloe Lobakeng holds a BA Hons in International Politics from UNISA and is a research assistant at the Institute for Global Dialogue associated with UNISA. Her views do not necessarily reflect those of the IGD.


1 United Nations, Charter of the United Nations, 1945, available at: http://www.refworld.org/docid/3ae6b3930.html
2 Permanent Court of Arbitration available at: https://pca-cpa.org/en/about/
3 https://pca-cpa.org/en/news/pca-press-release-the-south-china-sea-arbitration-the-republic-of-the-philippines-v-the-peoples-republic-of-china
4 International Court of Justice available at: http://www.icj-cij.org/court/index.php?p1=1
5 https://www.theguardian.com/world/2004/jul/13/law.features11
6 The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. States which become party to the Rome Statute, become member states of the ICC.
7 United States of America, China, Russia, United Kingdom and France.
8 United States of America, China and Russia.
9 Al-Bashir was charged on the basis of individual criminal responsibility for committing war crimes, crimes against humanity and the crime of genocide in the Darfur region of South Sudan.

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