ECJ and ICJ Roles Compared

ECJ and ICJ Roles Compared
ECJ and ICJ Roles Compared

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ECJ and ICJ Roles Compared

Introduction

The International Court of Justice (ICJ) is the legal structure of the United Nations (UN) and the leading international court with jurisdiction over global legal differences.  On the other hand, the European Court of Justice (ECJ) is the legal establishment of the European Union (EU)[1]. The ECJ is mandated with resolving member states differences. The International Court of Justice (ICJ) and the European court of justice (ECJ) were set up by interstate treaties to perform various roles[2]. The will evaluates the different roles of ICJ and ECJ.

Settlement of Disputes

Both ECJ and ICJ play a significant function of settling disputes. To start with the ICJ’s role is two-fold; resolve disputes based on the international law and legal conflicts submitted to the court and provide advisory guidance on legal issues provided by duly international legal agencies.  All UN member countries are ipso facto parties to the ICJ Statute, an aspect that is relevant to the UN Charter, and currently, almost all countries are UN member states. Every disputing nation has recognized the court’s jurisdiction as mandatory.

On advisory, UN specialized agencies and organs have the power to request the views of ICJ. The consultative process highlights on contentious proceedings and the basis of applicable law. Particular rules can, nevertheless, stipulate that advisory law is binding. This means that such laws cannot be invoked after the states have consented while the court has made a ruling.Nonetheless, a country’s failure to adhere to the tribunal’s decision breaches Article 94(2) of the UN Charter.

Noncompliance may be invoked to UN Security Council that can either make suggestions or authorize the use other strategies to enforce the ruling. The UN Security Council’s decision to implement compliance based on the court’s ruling is subjected to veto power and therefore mainly relies on the willingness of the members to resort to enforcement strategies while supporting the preliminary ruling.

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Article 36 (2) of the ICJ statute or Optional Clause, gives states the authority to make a unilateral declaration, whereby they recognize “a mandatory ipso acto and with no particular agreement, based on any country accepting similar obligations, the prerogative of ICJ in settling legal conflicts. Under the Optional Clause, some states have accepted ICJ’s jurisdiction with particular restrictions, for example, the US has appealed the Connally Reservation.

Such a reservation allows nations to avert ICJ’s prerogative initially recognized under the Optional Clause if they choose not to respond to a given suit. In most instances, it is practiced if a nation confirms that a conflict is domestic in nature and not international, and, therefore, domestic jurisdiction is applicable. If a government appeals the Connally Reservation, another one can also appeal to that nation, and hence a suit against the second country will be revoked.

This is commonly known as the rule of reciprocity and demonstrates that a nation has the responsibility of responding to the suit filed against it before the ICJ provided that the country is submitting the suit also recognizes the court’s jurisdiction. Much as ICJ has the mandate to hear any given case suitably provided, access laws evidently require that many conflicts will encompass enforcement or challenges to the actions.[3]

Settlements of Disputes in such agencies are minimized to contract conflicts with international bodies. For that reason, what may be viewed as a paradigmatic function of ICJ? Also, in the mandatory jurisdiction, ICJ’s role of settling disputes can be the foundation of enforcing the agreement and hence it can morph into enforcement function.

Moreover, ICJ is in charge of excising appellate jurisdiction, for example, this can be a result of provisions in the treaties including 1944 Convention on International Civil Aviation that envisages appeals to ICJ from rulings of ICAOCouncil.

Like ICJ, ECJ has the power of resolving interstate conflicts regarding the interpretation and use of agreements. Besides jurisdiction of inter-member states conflicts based on Article 344 Treaty on the Functioning of the European Union (TFEU), the ECJ interpret treaties through original judgments regarding the legitimacy and construal of agencies of EU and, institutions’ act.

As such, ECJ has the power of ensuring that law is not only observed but also interpreted and used in EU treaties[4]. To settle legal disputes, ECJ has a broad jurisdiction to hearing some actions. Additionally, it has the ability besides other things to regulate the applications of actions due to failure to act submitted by member states or against members as a result of failing to meet the obligations of the original judgments and appeals.[5]

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ECJ dispute resolution

The European Court of Justice (ECJ) is the legal establishment of the European Union. The court’s primary obligation is to resolve disputes between member states.  Moreover, the ECJ has an important duty of ensuring that European law is understood and employed the same way across the board. While based in Luxembourg, the court consists of 28 judges, taken from each member state.

For instance, to preclude disparities of interpretation of the European Union (EU) law by national courts, the initial verdict processes enhances the co-operation between national courts and the ECJ[6].  Furthermore, if a case is presented before a domestic jurisdiction that entails a clarification of the EU bylaws, if faced with ambiguity, the national courts will indeed refer the issue to the ECJ for interpretation. The ECJ will then pronounce a decision with regards to how the law should be interpreted.

The ECJ has the mandate to enhance proceedings, particularly if initiated by The Commission for purposes of compelling a member state to abide by the EU statute. In cases where the member state is in the wrong, it has to rectify the anomaly promptly. Whenever there is a dispute emanating from laws enacted by EU institutions at the expense of EU Agreements, the ECJ may request for the cancelation of such laws.

However, the ECJ has to determine that such laws are in conflict with the EU treaties before obliterating them. In addition, invalidation proceedings can also be advanced by private individuals provided they can substantiate that the statute in question has a direct effective on them individually.[7] 

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In Nold v. Commission case of 1974, the ECJ made a pronouncement guided by the legal practices common to the member states, and that it was not in any way ready to support measures that are not in tandem with fundamental rights accepted and protected by the components of member states. The pronouncement led to an understanding between member states and the ECJ.

This permitted state courts to make recommendations when the ECJ law and member states are in conflict. By and large, ICJ an ECJ resolves disagreements based on the interpretation and use of terms in trials that are created between two or more nations. Other cases may include the presence of the military in a foreign country, water boundary conflicts among others.

Court of Appeal and Compliance

ICJ serves as the court of appeal while ECJ is the foundation of ensuring that European laws are adhered to. ICJ can serve as the court of appeal of International Labor Organization (ILO) Administrative Tribunal. After 1955, the decisions of United Nations Administrative Tribunal can be appealed to ICJ; however the association was severed by United Nations General Assembly.[8]

On the other hand, the ECJ acts as a platform for making sure that European law is adhered to uniformly when it comes to interpretation of legal actions. While European laws are statutes stipulated by legislative organs, they regularly amend them based on the case law of ECJ. For that reason, the ECJ plays the function of EU integration through clarification of ambiguous legal stipulations, implemented regarding fulfilling the agreement by policy makers with different interests.[9]

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International Law Enforcement

ECJ and ICJ are in charge of enforcing international law. To start with, the ICJ is mandated to oversee countries compliance with international law. In addition, this entails reviewing countries actions, public agencies and in some instances individuals to determine if they adhere to the provisions of international rules. ICJ can consider the practices of a nation in international law as either lawful or unlawful while secondarily authorizing measures to reward victims and create expenses related to criminal actions. According to International Court of Justice Statute,

ICJ decides cases with regards to international law. This is to say, that the court should apply; a) international conventions and agreements; b) international customs; c) general codes accepted as law; and d) judicial decisions.[10] With the goal that nations can enforce legal rulings, there is an assumption of forcing legitimate national decisions. Apparently, such an assumption is not recognized globally.

The inadequate international administrative tool to enforce ICJ judgments against nations, however, some have alleged that the case of ICJ is similar to public law as well as constitutional functions of local courts.

The International Court is also tasked with the obligation to formulate the private international law. While the international court has played a comparatively modest and significant role in the creation of the international law, looking ahead, this obligation is expected to increase. 

The porousness of national boundaries as an outcome of globalization, leads horizontally, to the snowballing interaction between domestic legal structures, culminating in more private global legal issues happening. However, it equally shrinks, vertically, the conventional distance between the spheres of public and private universal law. At some point, the ordering of the diversity of private law orders and arrangements the central obligation of the private international law- is slowly but surely also an issue of interest for public international law[11]

For instance, this has been made probable through the concession and wider acceptance of The Hague Conventions and other international, regional and two-pronged instruments on the transnational private law. However, standards of transnational public law are gradually cooperating with, influencing and reporting to norms of private international law, especially where they are exemplified in transnational instruments.

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With international law enforcement, the ECJ makes ruling on the actions submitted by 1) member nations, institution or legal individual; 2) making preliminary judgments upon requests of tribunals of members, on the interpretation of Union Laws; and 3) make decisions in other cases as stipulated in treaties. In addition, the ECJ reviews the legitimacy of legislative acts and the Council of Commission.

In this case, the ECJ provides uniform and precise interpretation of law while ensuring that all members adhere to it.  Besides the predisposition of governments interpreting the law based on their interests, it a new regulation as such not widely recognized.

Review international administration and legitimacy 

Both courts are involved in the reviews, on one hand; ICJ considers foreign policy, and on the other ECJ reviews the legitimacy of European acts. ICJ listens to challenges to the judgment of administrators in cases submitted by individuals affected by such decision.[12] Based on the standard of assessment, the court checks to ensure that administrative decision complies with the law, and the administrators have a valid basis for their understanding.

In addition, the ICJ has the power to assess the rulings of national managers responsible for enforcing international regulations. In developing and developed nations, the ICJ authorizes a local action as lawful. On the other hand, ECJ regularly reviews widespread applications for common regulatory laws. Nevertheless, in cases where nations creatively deduce international law for fostering national agenda, foreign administrators can act as a type of global enforcement structure for decision formulation.     

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These administrative reviews allow nations to construe uniformly transactional, regulatory laws, providing a platform for domestic courts and administrators concerning new and complex legal problems. They also offer legal preparation especially for private individuals that do not succeed, therefore, help states protect their actions from criminal allegations. On the contrary, ECJ reviews the legitimacy of European acts, and agencies to provide legal impacts. Annulment proceedings can be submitted to decision formulation institutions, members or under certain conditions by a person.                                                                                                                      

The objective of such actions is annulling acts of institutions that are not related to stipulations of treaties, exceeding their rights or fail to adhere to the laid down procedure. If the action turns out to be adequately funded, ECJ pronounces the issue as void. Thus, annulment proceedings are the basis for evaluating compliance of European legislator acts to treaties and legitimacy of Commission judgments and resolving inter-institutional conflicts influencing power decentralizingon every institution from treaties. The controlling legitimacy of the institutions’ actions connects ECJ to constitutional jurisdiction.[13]

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Reinforcing legal process

The ECJ plays the role of strengthening legal structure by developing various institutional frameworks, amending inter-institutional as well as member states uniformly. The court solely is dedicated on these provisions while widening the catalog to protect the rule of law and supporting the prevailing conditions of the institutional uniformity. ECJ’s fundamental rights jurisprudencepresents a recognized role in the constitutional process.

Also, though the treaties did not contain anything on legal structure, the court progressively fleshed out a bill of rights in various cases including Staunder (1969) and Omega (2004) that is waiting to be integrated into law. Apart from reinforcing constitutional framework, the ECJ mandated to ensure there is a legal basis for the European law as well application duty of loyal cohesion.[14]                                           

The universal values of European law have for several years been replacing due to EU lack of fundamental rights process. Without a doubt, the general values are important in guaranteeing that constitutional courts at national level recognize the influence of European law. The duty of loyal co-operation is vital in the creation of legal rules. However, its significance is fundamental in the legal process like EU, where laws are used in similar institutions.    

Similarly, ICJ is in charge of strengthening the constitutional process by enforcing international laws and nullifies unlawful international actions.[15] Also, ICJ is regarded as a constitutional organ since it has the capability to make laws of constitutional significance.

Basically, in reinforcing legal process, the ICJ promotes the culture of constitutional compliance when the acts of a nation are regarded as ipso facto invalid. To effective foster legal agreement, the ICJ depends on the public views to pressure political leaders to respect rulings.

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Promote integration and global community

While ECJ promotes integration, ICJ fosters global community. According to Article 7 European Court has empowered ECJ to perform duties entrustedto Community, demonstrating that without a doubt it has a remitto not only protect but also promote the rule of law. The European legal principles foster this step proving that ECJ is lawfully in charge of developing pro-integration process and required to provide rulings to reinforce and enhance the Community or Union legal structure.  In the global community, the ICJ hears cases regarding maritime boundary, trade law, human rights, international criminal law and different tribunals formed to listen to a given case.

Interface and judicial dialogue

ICJ and ECJ are in charge of ensuring there is an interface in the trends of legal discussion. For instance, the ever-growing jurisprudence demonstrates that ECJ uses ICJ case-law as a tool for interpreting international practices relevant to its duties[16]

In the recent past, ECJ  used the North Sea Continental Shelf ruling to show that member states have independent rights regarding the nearby continental shelf, hence acts done on the continental shelf be considered as attempts of applying the European Union law. In the continental shelf, the ICJ made a ruling that coastal nations have the rights to extend their territory under the sea to exploit water resources.                                                                                                                       

In a bid to promote judicial discussion, both ICJ and ECJ are involved treaty of law. It is significant to note that treaty of law is important to EU because it is not a party to the law of treaties of Vienna Conventions[17]. Moreover, in the 2015 Evans Case, both courts used case law as the basis for guaranteeing that the rule depicts customary law.

By and large, in ensuring an interface in the judicial dialogue, ECJ, and ICJ when making a ruling involving public international law, in particular, ECJ instead of using on its interpretation of international law, it refers to ICJ decisions. Therefore, ECJ has comprehensively used ICJ as a platform for interpreting international law necessary in performing its roles.[18]

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Conclusion

In this paper, it became clear that the ECJ plays a critical role in resolving disputes between member states. The ECJ is also mandated with interpreting the European law and ensuring it is followed to the latter. On the other hand, the ICJ ensures the order is observed among the UN member states. Still the court has jurisdiction within the EU members. The ICJ offers checks on the exercise of transnational authority in their administrative and constitutional review functions.

The managerial analysis is a safeguard mechanism against prejudice or political interference in the application of the law. The ECJ, for instance, is dubbed as the court of justice in the EU. In the event of a conflict of interest, the ECJ institutes annulment proceedings. Indeed, both the ICJ and ECJ play a critical function[19].

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References

Klabbers, J. The validity of EU norms conflicting with international obligations. International law as law of the European Union. Martinus Nijhoff Publishers, Leiden and Boston, 2012.

Fathan, S. Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations. Indonesian Journal of International Law, 3(1), 2005.

Eckes, C. The Court of Justice’s Participation in the Judicial Discourse: Theory and Practice. The European Court of Justice and External Relations-Constitutional Challenges Hart Publishing, Oxford, 2014.

Rachovitsa, A, ‘Fragmentation or unity of public international law’revisited: analyzing the European Convention on Human Rights when the European Court takes cognizance of public international law norms (Doctoral dissertation, University of Nottingham),  2013.

Jacobs, F.G. Judicial dialogue and the cross-fertilization of legal systems: The European Court of Justice. Tex. Int’l LJ, 38, 2003.

Dolzer, R. and Schreuer, C. Principles of international investment law. Oxford University Press, 2008.

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De Búrca, G. The European court of Justice and the International Legal order after Kadi’(2010). Harvard International Law Journal, 51, p.1.

Rosas, ‘The European Court of Justice and Public International Law’, in J. Wouters, A. Nollkaemper and E. de Wet (Eds.), The Europeanization of International Law – The Status of International Law in the EU and its Member States, The Hague: T.M.C. Asser Press, 2008, pp. 71 2011.

Mendez, M. ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’, European Journal of International Law, 2010, pp. 83-104

Bickerton, C. European Union Foreign Policy: From Effectiveness to Functionality,   Palgrave, 2011 (forthcoming), Chapter 4.

Martin Shapiro, „The European Court of Justice‟, in Paul Craig & Gráinne de Búrca (eds.), The Evolution of EU Law, Oxford: OUP, pp. 321-347, at 332.

Neville Brown L, Tom Kennedy, Brown & Jacobs. The Court of Justice of the European Communities, London: Sweet & Maxwell 2000, p. 344

David Anderson & Marie Demetriou, References to the European Court (Second Edition), London: Sweet & Maxwell 2002, pp. 177-180.

Damian Chalmers, Christos Hadjiemannuil, Giorgio Monti, Adam Tomkins, EU Law: Text and Materials, Cambridge: Cambridge University Press 2006, p.       301.

Kokott & Cheryl Saunders (eds.), The Future of the European Judicial System in a Comparative Perspective, Baden-Baden: Nomos 2006, pp. 83-90.

Buergenthal, T “Proliferation of International Courts and Tribunals: Is It Good or Bad?” Leiden Journal of International Law (2001), 14: 267-275.

Hafner, G. “Pros and Cons Ensuing from Fragmentation of International Law”, Michigan Journal of International Law Vol. 25(2004), pp. 849- 863.

Martinez, S “Towards an International Judicial System”, Stan.L Rev. Vol. 56(2) (2003), pp. 429-529.

Stephens, T. “Multiple International Courts and the ‘Fragmentation’ of International Environmental law”, Sydney Law School Legal Studies       Research Paper No.07/14 (2007), pp. 227-271, at 23

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[1] C Eckes, The Court of Justice’s Participation in the Judicial Discourse: Theory and Practice. The European Court of Justice and External Relations-Constitutional Challenges Hart Publishing, Oxford, 2014.

[2] S. Cheryl (eds). The Future of the European Judicial System in a Comparative Perspective,

Baden-Baden: Nomos 2006, pp. 83-90.

[3] S Martinez, “Towards an International Judicial System”, Stan.L Rev. Vol. 56(2) (2003), pp. 429-529.

[4] T Stephens, “Multiple International Courts and the ‘Fragmentation’ of International Environmental law”, Sydney Law School Legal Studies Research Paper No.07/14 (2007), pp. 227-271.

[5] A. Rosas, ‘The European Court of Justice and Public International Law’, in J. Wouters, A. Nollkaemper and E. de Wet (Eds.), The Europeanisation of International Law – The Status of International Law in the EU and its Member States, The Hague: T.M.C. Asser Press, 2008, pp. 71 2011.

[6] J Klabbers, The validity of EU norms conflicting with international obligations. International law as law of the European Union. Martinus Nijhoff Publishers, Leiden and Boston, 2012, pp.111-132.

[7] G. Hafner, “Pros and Cons Ensuing from Fragmentation of International Law”, Michigan Journal of International Law Vol. 25(2004), pp. 849- 863.

[8] T. Buergenthal “Proliferation of International Courts and Tribunals: Is It Good or Bad?”, Leiden Journal of International Law (2001), 14: 267-275.

[9] F.G Jacobs, Judicial dialogue and the cross-fertilization of legal systems: The European Court of Justice. Tex. Int’l LJ, 38, 2003, p.547.

[10] L. Neville Brown, Tom Kennedy, Brown & Jacobs. The Court of Justice of the European Communities, London: Sweet & Maxwell 2000, p. 344

[11] A Rachovitsa, Fragmentation or unity of public international law’revisited: analysing the European Convention on Human Rights when the European Court takes cognisance of public international law norms (Doctoral dissertation, University of Nottingham),  2013.

[12] G De Burca, The European court of Justice and the International Legal order after Kadi’. Harvard International Law Journal, 2010.

[13] M. Mendez, ‘The Legal Effect of Community Agreements: Maximalist Treaty Enforcement and Judicial Avoidance Techniques’, European Journal of International Law, 2010, pp. 83-104

[14] S. Martin, The European Court of Justice‟, in Paul Craig & Gráinne de Búrca (eds.), The Evolution of EU Law, Oxford: OUP, pp. 321-347.

[15] R, Dolzer and C, Schreuer. Principles of international investment law. Oxford University Press, 2008

[16] P. Schiff Berman, ‘A Pluralist Approach to International Law’, The Yale Journal of International Law2007, pp. 301-329.

[17] S Fathan, Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations. Indonesian Journal of International Law, 3 (1), 2005.

[18] D. Chalmers, C. Hadjiemannuil, G.  Monti, and A. Tomkins, EU Law: Text and Materials, Cambridge: Cambridge University Press 2006, p. 301

[19] C. Bickerton, European Union Foreign Policy: From Effectiveness to Functionality, Palgrave,2011 (forthcoming), Chapter 4.

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