A Brief History of International Dispute Resolution and the ICJ
The Philip C. Jessup International Moot Court Competition
Modern international dispute resolution is traceable to the Jay Treaty of 1794,1 wherein the United States and Great Britain agreed to settle disputes from the Revolutionary War by mixed panels of British and U.S. nationals. A unique feature is that this established a tribunal that was comprised of participants of both affected nations rather than leave the decision to the sovereign. The bilateral panel would also lend credibility to its decisions as none of them would technically be one-sided. In 1872, the Alabama Claims Tribunal was established to address alleged breaches of neutrality by the UK during the Civil War. A truly unique feature of this tribunal was the appointment of three participants of the tribunal from non-participating nations, i.e., from Brazil, Italy, and Switzerland, along with representatives of the U.S. and the U.K.
During the Hague Peace Conference of 1899, a number of nations that included the smaller European nations, some Asian nations, and Mexico established the machinery for the creation of the Permanent Court of Arbitration, which began operations at The Hague in 1902. In 1913, this Court moved into the Peace Palace at The Hague, which was built for it as a gift from Andrew Carnegie. The Permanent Court of Arbitration exists and operates to this day.
At a second Hague Peace Conference in 1907, to which certain Central and South American nations were invited, U.S. Secretary of State Elihu Root advocated in improved court that not only called for "permanent establishment," but also added the features of the appointment of judges full-time, who could then devote their full energies to the problems presented at the court, AND selection of judges from different countries to ensure a balance between different systems of law and procedure, as well as the use of different languages.. Although the Conference was unable to reach consensus on the form of a new court, these proposals found their way into the Permanent Court of International Justice (or "PCIJ").
At this point, it is fair to point out the U.S. role in the development of the modern-day international law tribunals, including the UN's court. For each of its main features, the United States has been instrumental, to wit the creation of:
a mixed tribunal at first involving representatives from both sides to a bilateral conflict;
the inclusion of nationals from other countries not directly in conflict on such panels;
a permanent tribunal in an established place to provide a location and a system for arguing, reporting, and archiving its work for the benefit of all;2 and
the long-term appointment of judges to remove other concerns that could frustrate their work, and also to permit the development of institutional experience as judges with experience in international disputes would always be at hand.
The PCIJ was established in 1922 by the League of Nations, predecessor to the United Nations, and its seat was also the Peace Palace at The Hague. The PCIJ was not a part of the League, but was established as an associated partner. The PCIJ's last public sitting was shortly after the outbreak of World War II, and it dissolved in 1946 . not, however, before passing on its legacy to the newly-established International Court of Justice (or "ICJ").
Important features of the ICJ, in addition to its role as the principal judicial organ of the UN, include its permanence, its Registry (a system of court administration, including the reporting and storage of case decisions), and its make-up of judges from UN Member Nations by vote of the U.N. General Assembly and of the U.N. Security Council.
Only States may be parties to cases heard by the ICJ. Court jurisdiction may be conferred in several ways. The first is by special agreement or "compromis," whereby two or more States agree to the parameters of argument, and often, to the nature and extent of the Court's jurisdiction over an international dispute. Not to be forgotten is a strong prejudice of the ICJ to hear cases only when there is consent by the nations to ICJ jurisdiction. A second method of conferring jurisdiction is by inclusion of ICJ jurisdiction in Treaties and Conventions as the dispute resolution tribunal of choice, and is found in a number of bi-lateral and multi-lateral treaties and conventions. The third form is the acceptance of ICJ jurisdiction by acknowledging compulsory jurisdiction, on a reciprocal basis, over various "international" matters such as Treaty interpretation and questions of international law. Of course, UN Member States are automatically members to the ICJ Statute and may bring cases to, or defend before, the ICJ.
It is important to note that the ICJ is just one of a number of international dispute resolution tribunals. The UN may establish ad hoc tribunals such as has been the case in former Yugoslavia and Rwanda. The Permanent Court of International Arbitration is still at work. A new International Criminal Court now sits in [ ]. The European Court of Human Rights is located in Strasbourg and boasts membership of most European nations.3 There are numerous other tribunals and panels of judgment, of mediation, and of arbitration established by treaty or agreement. Many resolve disputes concerning public international law, and others concentration on private, or commercial, international law. A good example of the latter, although there is some overlap with what may be deemed "public" international law, is the European Court of Justice, in Brussels, which is the primary tribunal for the European Union.
Philip C. Jessup
Philip C. Jessup was a scholar, international statesman, and from 1961 to 1970, the U.S. representative to the ICJ. Professor Jessup taught a variety of international law topics at Columbia University Law School. Prof. Jessup was appointed as an Ambassador-at-Large and representative for various UN-related tasks by Secretary of State Elihu Root, and he spent several years traveling around the Asian region and gathering information from a variety of sources. A result of these efforts was the development of U.S. post-WWII policy in Asia, culminating in a "White Paper" on China.
Along with others at the State Department, Professor Jessup was accused by Senator Joseph McCarthy of holding pro-communist sympathies for his "White Paper" and for his chairmanship of the Institute for Pacific Relations, which was thought to promote pro-communist policies. Although he was cleared of any improper conduct by the Loyalty Board of the State Department and the Tydings Committee, Jessup left the State Department. He was appointed as the U.S. delegate to the U.N. in 1951, but failed to secure approval by the U.S. Senate, which led to an "interim appointment" by President Truman. Soon thereafter, the State Department approved Jessup's appointment as U.S. candidate for the International Court of Justice during the Eisenhower administration, which position did not require Senate approval. Professor Jessup's approval at the ICJ, which is made by vote of the U.N. General Assembly and of the Security Council, was unanimous.4
The Jessup Competition
In 1959, a group of students at the law schools of Harvard, Columbia, and the University of Virginia met and established the first Philip C. Jessup International Moot Court Competition. These efforts have burgeoned into the largest moot court competition of its kind, and the Jessup now boasts participation of law school teams from approximately 90 nations. There are a set of regional competitions throughout the U.S., after which the winners, along with the winning teams from other nations, are invited for the international rounds in Washington, D.C.
We are pleased at the Thomas M. Cooley Law School to field a team and to participate in the Jessup Competition. With the support of the Moot Court Program, the Foreign Study Program, Professor David Finnegan, and the International Law Societies of Lansing and Grand Rapids, we were able to compete this year in the regionals and can stand before you today. The arguments that you are about to hear are as if presented before the U.N.' court - the International Court of Justice.
1 A treaty of Amity, Commerce, and Navigation, also known commonly as a Friendship, Commerce, and Navigation or "FCN" Treaty. These were agreements, usually bi-lateral, between nations intended primarily to provide guidelines for disputes that could arise during the colonial period.
2 In international law, decisions such as those by the ICJ are binding only on the named parties to the dispute and decision. Nevertheless, the wisdom of these cases affects subsequent decisions. To the common law sensibility, prior decisions would be treated as "persuasive", not binding, authority. In short, this derives from notions of sovereignty and not being bound by international law without consent
3 In fact, the existence of the European Court of Human Rights as distinct from the instrumentalities of the European Union may be explained by the fact that the European Community's early focus was free and fair trade, which in turn may explain why the EU is only now getting around to consideration of a "federated" constitution. Alleged human rights violations in the EU countries could be taken to the European Court on Human Rights.
4 Successful vote requires an absolute majority by the General Assembly and the Security Council, respectively, and the Security Council has not veto power in this situation.