With China passing its "Anti-Secession" Law on March 14, and the recent dispute with Japan over the Diaoyutais (釣魚台), some people are suggesting we broach our situation to the International Court of Justice (ICJ). So what exactly does the court do?
The ICJ is actually one of the six major organs of the UN, the other five being the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat. The court itself is the UN's primary judicial organ, mandated to ensure the peaceful solution of international disputes. It plays a vital role in the UN's collective security organization.
It is the highest international court, but as it is located in the Hague in the Netherlands, and not in New York, where the UN's headquarters can be found, it has often been mistakenly believed to operate independently of the UN.
The court has 15 judges of different nationalities, elected in separate sittings by the General Assembly and the Security Council. The judges, in addition to having the necessary moral atttributes, must also have the qualifications required in their own countries for the highest judicial offices, or be of recognized competence in international law. The court should also reflect the traditions and principal legal systems of the world.
The judges have a tenure of nine years, with re-elections for a third of these held every three years. It is possible for a judge to be elected for subsequent terms. During their service in the ICJ, they are given diplomatic privileges, including immunity.
The court has dual functions.
The first is in deciding on court cases brought before it. Only nations can act as plaintiff, and they can only bring cases against other nations. Any organization other than a nation, any group or individual cannot bring a case before the court. Also, the jurisdiction of the court must be either expressly or tacitly recognized by the defendant nation in controversial cases.
All member states of the UN qualify to act as plaintiffs. Non-member states, and this includes Taiwan, can be made a special case, but this is contingent on the recommendation of the UN General Assembly, having gone by the Security Council. These decisions are made on a individual basis.
The second function the court performs is advisory. The UN General Assembly and Security Council may seek the opinion of the international court for any legal questions that arise. Any legal queries concerning the specific areas of other UN organs, or other specialist bodies, can also be referred to the court, having secured the approval of the General Assembly. Such referrals must be presented clearly.
Should Taiwan decide to take any case to the ICJ, or seek a consultation on any issue, it will face one procedural obstacle after another. First, it will have to get past the General Assembly and the Security Council, and China is sure to put up barriers from within against such an action.
Chen Lung-chu is chairman of the New Century Foundation and professor of law at the New York Law School.
Translated by Paul Cooper