The International Court of Justice: As a Partner in Preventive Diplomacy.

The International Court of Justice (ICJ) plays a part in the peaceful settlement of international disputes, in furtherance of the first purpose of the United Nations: "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace". The Court fulfils this role not only by its function of adjudication of international disputes - disputes which, if unresolved, might lead to a breach of the peace but, far more often, disputes which are an element of the routine interaction of international relations. On occasion, the Court's judicial activity is complemented by political methods of dispute settlement by the parties to the dispute and by UN organs other than the Court, which is "the principal judicial organ of the United Nations".

The ICJ is not a substitute for the UN Security Council. The treasured ideal of the early peace movement of this century - that resort to international adjudication would prevent the outbreak of war - proved to be unrealistic. Far from international adjudication generally preventing war, it is peace that conduces to the settlement of inevitable international disputes by adjudication. The Permanent Court of International Justice flourished in the 1920s, in a decade of detente, and declined in the 1930s, with the rise of international tensions provoked by the Axis Powers. Since the end of the cold war, the ICJ has had a heavier docket than ever before.

International disputes often comprise various aspects: political, legal, economic, social and other. Some disputes may be best settled if legal and other methods of settlement are deployed in a complementary way; at the same time, a court - not least an international court - must act in response solely to legal considerations. The ICJ has shown itself able to work together with political organs of the United Nations while preserving its judicial integrity. At times, recourse to the Court has promoted a negotiated settlement of the dispute by the parties themselves. Indeed, on occasion, the mere threat of recourse to the Court,express or implied, by one party to a dispute has moved the other party towards a negotiated solution.

The ICJ and the Security Council may act as partners in the maintenance of international peace and security. While the UN Charter confers on the Council "primary responsibility for the maintenance of international peace and security", the Court may and on several occasions has become involved in the same dispute. The Court then deals with and resolves legal aspects of the dispute; the Security Council handles the political aspects.

This complementarity was illustrated by concurrent recourse to both the Council and the Court when United States diplomats were held hostage in Teheran. It was confirmed again in the case concerning Military and Paramilitary Activities in and against Nicaragua, where the ICJ held that: "The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can, therefore, perform their separate but complementary functions with respect to the same events."

There have been a number of other instances in which the Court and the Security Council acted together. The conflict in Bosnia and Herzegovina is one of them. While the Council was seeking to achieve a political solution to the conflict. Bosnia brought to the Court the grave legal question of whether the Federal Republic of Yugoslavia was acting in breach of the Convention on the Prevention and Punishment of the Crime of Genocide. The Court. in an Order indicating provisional measures (i.e., an interim injunction), called on Yugoslavia to "take all measures within its power to prevent commission of the crime of genocide". The Council, in turn, took note of this Order, which was followed by another reiterating provisional measures and a judgment rejecting Yugoslavia's objections to the Court's jurisdiction. The Court found Yugoslavia's counter-claims of genocide admissible. Hearings on the merits of the case are planned in the year 2000. This will be the first trial in history of charges of genocide brought by a State against another State.

Another recent instance of parallel proceedings in the Court and the Security Council concerned a border dispute between Cameroon and Nigeria. When armed incidents involving both States occurred in a border area - the Bakassi Peninsula - both the Organization of African Unity and the Security Council were seized with the dispute. At the same time, Cameroon brought the dispute before the Court and requested it to indicate provisional measures. As a result, the Council, through a statement of its President. and the Court, in an Order indicating provisional measures, called on the parties to respect a ceasefire and to take the necessary steps to return their forces to the positions they had held before the outbreak of the fighting.

But even where the Security Council is not involved, political methods of dispute settlement and adjudication can be employed complementarily with much benefit. The successful settlement of a long-lasting boundary dispute between El Salvador and Honduras. is in point. While bilateral negotiations and a mediation process conducted by a former President of the ICJ had succeeded in bringing about a measure of political settlement, both States submitted to a Chamber of the Court a series of decisive legal elements of their dispute, which related to the boundary lines in four determined frontier zones and to the legal situation of certain islands and maritime areas.

This judgment of the Chamber successfully resolved a dispute of exceptional complexity. Recourse to the ICJ has also helped parties to a dispute to resume political negotiations and to achieve a mutually agreed settlement. Disputes sometimes have their origin in a disagreement over a particular legal question. The dispute may then build up over the years, becoming more and more politically charged, which makes it increasingly difficult for the parties to find a negotiated solution. Once the dispute is submitted to the Court, the parties are obliged to reduce and transform their sometimes over-stated political assertions into factual and legal claims. This process sometimes has alleviated tensions and led to a better and fuller understanding of the opponent's claims. Negotiations resumed and led to a settlement even before the Court reached a decision.

A recent illustration is the case concerning the Aerial Incident of 3 July 1988 between the Islamic Republic of Iran and the United States of America, arising out of the shooting down of an Iranian Airbus by a United States cruiser. The written proceedings before the Court gave the parties the opportunity to study each other's claims and arguments, and to consider bridging their differences. Negotiations recommenced and a final settlement was reached.

In the case concerning Passage through the Great Belt between Finland and Denmark, the Court actively encouraged the parties to resume negotiations with a view to achieving "a direct and friendly settlement". The dispute was settled days before expedited hearings on the merits were scheduled to start.

A somewhat different function of the Court emerged for the first time in the North Sea Continental Shelf cases. Negotiations between Germany, the Netherlands and Denmark on the delimitation of the continental shelf in the North Sea had come to a standstill over a disagreement on a crucial legal question. The parties then decided to submit this legal question to the Court, which rendered its decision; the parties were then able to resume their negotiations based on the Court's findings. The Court thus provided the parties with legal answers on the basis of which they could negotiate a mutually satisfactory settlement of the dispute.

The ICJ fulfilled a related, though not mainly preventive, function in the recent case concerning the Gabcikovo-Nagymaros Project. Hungary and Slovakia were unable to agree on certain legal aspects of a broader dispute concerning a treaty project for the joint construction of dams on the River Danube.

They submitted to the Court for resolution the legal aspects of the dispute, which had deeply divided them at the political level and had brought the negotiations to a standstill. Their special agreement to do so provided expressly for negotiations to resume immediately after the transmission of the judgment and also authorized the parties to request an additional judgment from the Court should the negotiations fail. The ICJ not only provided the parties with the requested legal answers, but also made recommendations for the ensuing settlement of the dispute. It observed that both parties, in their bilateral negotiations on the implementation of its judgment, "can profit from the assistance and expertise of a third party". As the ensuing negotiations threatened to come to a new standstill, Slovakia requested the Court to establish time-limits within which negotiations should be brought to a conclusion. While the Court has as yet seen no need to rule on this request, it nevertheless started to monitor a renewed negotiating process by requesting both parties to report on any progress made.

Contentious proceedings are not the only way to submit legal aspects of a dispute to the Court. Article 96 of the UN Charter entitles the General Assembly and the Security Council to "request the International Court of Justice to give an advisory opinion on any legal question". In the Court's advisory proceedings on Certain Expenses of the United Nations, the Court elucidated the assessment authority of the United Nations, as well as the authority and relationship of the Assembly and the Council. It further significantly developed the authority of the Council in its advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia. These and other opinions of the ICJ on the authority of the United Nations have contributed to the capacity of the Organization to act - a capacity which may bear upon its ability to exercise preventive diplomacy. Moreover, certain advisory opinions of the Court, such as that relating to the Palestine Liberation Organization's offices at United Nations Headquarters, have contributed to resolving disputes which, if unsettled, could have posed serious political problems.

All in all, the ICJ has a role as a partner in preventive and persuasive diplomacy. It not only facilitates the peaceful settlement of international disputes; through its judgments and advisory opinions, the Court clarifies and confirms the legal obligations of States - obligations which of themselves are elements of the architecture of the maintenance of international peace and security.