Dispute Settlement and the International Court of Justice (ICJ)

The effectiveness of international tribunals depends on the willingness of each state

to cooperate. Over the years, courts have been established as a result of treaties,
such as the Inter-American Court on Human Rights. However, they are constrained
by the treaty, which dictates the subject-matter and the parties to which they may
have jurisdiction over. Only states that are members of the treaties may bring a case
to the respective courts. This may imply that for smaller treaties, the courts may be
limited in power, but for large treaties, such as the United Nations Charter, its court,
the ICJ, has jurisdiction over 193 of its member states. Furthermore, the court may
deal with anything related to international law. Member states may bring to the
court any legal dispute pertaining to the Charter, or any other treaties in force, and
this may be done on an ad hoc basis, with the consent of the other involved party.
Since 1983, there has been a slow increase in the number of cases referred to the
ICJ, indicating an increase in confidence in not only the ICJ, but international law as
well. Thus far, the ICJ has been used mainly for territorial disputes, or conflicts
involving the use of force.

Treaties may also refer disputes to the courts. A clause may indicate that courts may
have judicial power to settle disputes should they arise between parties. Currently,
there are over 260 treaties that fit the bill. However, this strategy is less observed
within African and Asian countries. Overall, the trend for such clauses has been
declining, possibly due to newer methods of dispute settlement. Yet another method
is Optional Clause jurisdiction, which states that parties must agree to ICJs
jurisdiction at all times. However, this may be signed for a definite or indefinite time
period, unconditionally or based on reciprocity. Reservations may also be made,
relating to certain states, time frame or subject-matter, sometimes defeating the
purpose of the clause. Besides dispute settlement, the ICJ also provides advisory
opinion on legal issues on request. Although it does not technically create
international law, it affects it because its opinion carries significant influence, and its
verdicts will influence norms.

The Role of National Courts in the International Legal Process
The relationship between national and international law may be explained through
monism and dualism. The first believes that both exist in the single system of law,
whereas the other believes that they are two different, independent systems. The
legal culture of a country hence depends on which theory they support. Some
countries train their lawyers to be familiar with both, while others may not address
international law at all. The product is lawyers that know nothing about it and avoid
it at all costs. Hence, cases with obvious relation to international law, may instead be
solved by national law. Furthermore, national law may always take precedence over
international law. Even if it is incorporated into domestic law, another preexisting
domestic law might still overrule it if there is contradiction. Such is the attitude
dualist countries, such as the UK, have. Monist countries are the opposite. France,
for instance, gives all treaties precedence over domestic statues. However, should
domestic atrocities get too out of hand, international organisations would still have
to step in to enforce international law.