The International Court of Justice (ICJ)


THE INTERNATIONAL COURT OF JUSTICE (ICJ)
By: Pan Mohamad Faiz K.W.
[1]

Brief Introduction

The need for the establishment of a Permanent Court to solve international disputes was felt in the First Hague Conference. It was in the Second Hague Peace Conference, the USA proposed for the establishment of such a Court. The Permanent Court of International Justice (PCIJ) was established in 1921 under the covenant of the League of Nations. After its dissolution, the new International Court of Justice (ICJ) started functioning on 18 April 1946 with headquarters at the Hague.

ICJ is the principal judicial organ of the UNO. The rules concerning the ICJ are set out in a Statue annexed to the UN Charter. All members of the UN are ipso facto parties to the Statue of ICJ. The member States are under an obligation to comply with decision of ICJ in the cases to which they are parties.

The function of the ICJ was conceived primarily to decide legal disputes between State parties when they agree to submit their dispute to it. The ICJ was not given the power of judicial review over the actions taken by other international organs. Thus, the absence of compulsory jurisdiction over States and lack of power of judicial review makes it a weaker Court than the municipal courts.

Art. 34 (1) of the Statue provides that “only States may be parties before the Court.” But the international organization may be requested to provide information relevant to cases before the Court. International organizations bring a claim in contentious litigation before the Court. Individuals and corporations totally lack any locus standi as parties before the Court. The individuals can bring claims only through their own Governments.

Organization of ICJ

The court consist of 15 judges who are elected regardless of their nationality, from among persons of high moral character who posses the qualifications required for the appointment to the highest judicial office of their own States, or, who are jurisconsults of repute in international law. But, no two judges shall be elected from the same State.

The system of election based on the “Root-Phillimore plan” devised in 1920. The list persons to be elected as the judges are prepared by the national groups in the Permanent Court of Arbitration on the request of Secretary General of U.N. No national group shall nominate more than four persons. The Secretary General then prepare the list of nominees in alphabetic order from which judges are to be elected by the General Assembly and Security Council, each voting independently, but simultaneously (by absolute majority).

These two organizations keep in mind that the judges elected are representatives of “main forms of civilization” and “principal legal system of the world”. Under a short of “gentlemen’s agreement”, the judges elected on regional basis and as per present practice 3 from Africa, 3 from Asia, 2 from Latin America, 2 from Eastern Europe and 5 from Western Europe and other countries are elected. The casual vacancies due to death or resignation are also filled in the same manner.

One third, i.e. 5 judges are elected, once in every three years. Thus, once elected a judge enjoys tenure of 9 years and is also eligible for re-election. The seat of the Court is at the Hague, though it can also sit elsewhere if it considers necessary. The quorum of the Court is nine judges. The judges elect a President and a Vice-President from among themselves, to preside over the Court for a period of three years.

The decisions regarding the disputes before the Court are taken by majority of votes of judges and in case there is a tie, the President of the Court exercises his casting vote. The salary and allowances of judges are determined by the General Assembly. Each judge of the Court receives an annual salary. The judges enjoy diplomatic privileges and immunities.

No judge of the Court may exercise any political or administrative function or engage in any other occupation of a professional nature. The judges of the nationality of each of the parties retain right to sit in the case before the Court. If the Court includes upon the bench a judge of the nationality of one of the parties, any other party may choose a person to sit as a judge. This, ad hoc judges could be appointed so.

The statue also provides for the information of three types of chambers: the chambers of summary procedure, chambers for dealing with particular categories of cases, like labour or environment, and chambers for dealing with a particular case.

Though the judgment of the Court is “final and without appeal”, yet a State party may appeal for revision of judgment under certain circumstances. The Court’s decision has no binding force except between parties and in respect of that particular case only. Art. 38 (1) of the Statue of ICJ directs the Court to apply international law to disputes derived from international conventions, international customs, general principles of law, and subject to Art. 59, judicial decisions and teachings of the most highly qualified publicist.

Jurisdiction of ICJ

The access to the Court is open to State which are parties to the Statue and Charter, as well as to the non-members who are admitted to UN under Art. 92 (2) of the Charter. The States, which are not parties to the Statue, can have access to the Court if they fulfill the conditions laid down by the General Assembly in each case and upon the recommendation made by the Security Council. Such State must deposit a declaration with Registrar of the Court accepting the jurisdiction of the Court, and contributing towards expenses of the Court. The court enjoys types of jurisdictions, namely (1) Contentious, and (2) Advisory.

1. Contentious Jurisdiction

It comprises the following kinds of cases:
a. All cases which the parties refer to it.
b. All matters specially provided for in the Charter of the United Nations.
c. All matters specially provided for in the treaties and conventions on force.

In all contentious cases, the Court can exercise it jurisdiction only with the consent of the State parties to the dispute, which convey their consent through notification in bilateral agreement known as ‘compromise’. But since the 1980s, the usual method of notifying their joint consent is through a ‘Special Agreement’, instead of a ‘compromises’.

A unilateral reference of a dispute to the Court by one State party without prior Special Agreement can also be made under the “Principle of Prorogatun”, provided the other State party or parties convey their assent to voluntary submission to the jurisdiction of Court either after the case is referred or subsequently. However, if the consent of the other State party or parties is not forthcoming either after the case is referred or subsequently, the Court cannot exercise jurisdiction over such a case.

The Court also exercises compulsory or obligatory jurisdiction over following types of cases:

a. Where the State parties to a treaty have agreed that the Court shall have jurisdiction over the disputes arising under the treaty; or, where a treaty, which is in force, has a provision also come under compulsory jurisdiction of the ICJ. For example, disputes arising out of the working of the specialized agencies like the I.L.O. give compulsory jurisdiction to the ICJ.

b. The Statue in Art. 36 (2), known as “Operational Clause” provides “the States parties to the present Statue may at any time declare that they are recognized as compulsory subjects ipso facto, and the same obligation” the jurisdiction of the Court in all legal disputes: relating to (1) interpretation of a treaty (2) any question of international law (3) the existence of any fact which, if established, would constitute a breach of an international obligation; (4) the nature and extent of reparation to be made for the breach of an international obligation.

Such declaration under ‘Optional Clause’ by States may be made, with the Secretary General of UN, either unconditionally or on condition of reciprocity on the part of several or certain States, or for a specified time only. Under the reciprocity principle, a State accepts the Court’s jurisdiction vis-à-vis any other State only in so far as that State has also accepted it.

The States can also make such declarations subject to certain reservation. The reservations may be regarding the following: Past disputes; Disputes for which other methods of settlement are available; Question within the domestic jurisdiction of a State; Dispute arising in time of war or hostilities. But the too many reservations which are “merely escape clauses or consciously designed loopholes” prompted Starke to say “such a system of ‘optional’ compulsory jurisdiction verges on absurdity”.

c. The disputes regarding application or interpretation of trusteeship agreement between a trustee and another member of UN.

d. The Statues of certain Specialized Agencies of the UN contain provisions to refer their disputes with other specialized agencies to the Court.

At one time, it was thought that another category of compulsory jurisdiction existed, namely, where under Art. 36 of the UN Charter, the Security Council recommends the parties to a dispute to refer their case to the Court if the dispute is of a legal character. But after the decision of the ICJ in the Corfu Channel Case [Preliminary Objection (1948)], it is now settled that if a Member State had not accepted the jurisdiction of the ICJ under a special agreement or under a treaty or convention under a declaration made according to Para 2 of Art. 36 of the Statue, compulsory jurisdiction cannot be exercised by the Court.

The Statue does not provide any method for enforcement of the decision in the decisions in the contentious cases, which is a major weakness of ICJ. However, under Art. 94 of the Charter, each member of UN undertakes to comply with the decision of the Court in a case to which it is a party. If a State party to a dispute does not fulfill its obligations as per the decision of the Court, the other State party has a right to approach the Security Council which may decide how the decision can be made effective.

2. Advisory Opinion

The ICJ may give an advisory opinion on any legal question, at the request of anybody authorized by, or in accordance with, the Charter of the UN, to make such a request. According to Art. 96 of the Charter, the General Assembly and the Security Council may request the advisory opinion of the Court on any legal question. Other organs of the UN may also do so, if authorized by the General Assembly. An advisory opinion lacks the binding force of a judgment as in contentious case. But, States may, by treaty or agreement, undertake in advance to be bound by advisory opinion on certain questions.

The advisory function is designed primarily to assist the General Assembly and Security Council in the discharge of their duties of conciliation over disputes submitted to them, by rendering them an authoritative legal opinion. Strictly speaking, the Court’s opinion is not given to States, but only to organs entitled to do so. However, States are permitted, along with international organizations to participate in proceedings before the Court.

The Court should not decide upon the merits of a dispute between States by way of an advisory opinion. It may be noted that the absence of consent of a State or States does not prevent the Court from giving an advisory opinion on a legal question, the solution of which may clarify a factor in a dispute between States or between a State and an international organization, without affecting the substance of the dispute.

Ordinarily the Court cannot refuse to render advisory opinion, but it may do so when: (a) The main point of the legal question referred involves other than legal aspects (viz. political or purely academic question), or is embarrassing. However, it may not refuse to give an advisory opinion where the interpretation of a treaty provisions is concerned, even though such a question and request are of a political nature.

Though the advisory opinion lacks the binding force, yet the agencies, which sought such opinion, have invariably treated the opinions wit respect and as authoritative statements of law. Advisory opinions have a great persuasive value.

Oppenheim has rightly said:
“The advisory jurisdiction has in fact proved to be much fertile and more important than was originally contemplated. The number of advisory opinions given by the Court almost equals that given by way of judgments.”

The “clientele” of the ICJ is much larger (some 187 States are parties to the Statue) than that of its predecessor i.e. PCIJ. However, it is credited with more instances of non-compliance with its judgments and orders were all complied with. The judgments in the Corfu Channel Case, the Fisheries Jurisdiction Cases, Nicaragua Case, etc. have not been complied with.

ICJ and Human Rights:

In spite of the impressive record of the United Nations in setting the norms of human rights, and setting up the international and regional machinery for their observance and enforcement, their violations are rampant. This requires some political will and concerted efforts at the national, regional and international levels by the State. There must be perennial vigilance.

Though the concept of “domestic jurisdiction” has not remained absolute in the matter of human rights violation, the national sovereignty is still a formidable obstacle in the enforcement of human rights. Furthermore, the protection of human right is closely dependent upon many other factors, viz. international peace and security, and the economic and social development of nation, which require close cooperation between the States.

The ICJ is nor a human rights court in the contemporary sense of that term. The Statue of the court provides, in Art. 34, that: “Only States may be parties in cases before the Court.” If follows that individuals, corporations, NGOs, etc. may not be parties to contentious cases before the court. Moreover, the focus of the large majority of contentious cases between States, and advisory opinions given by the Court has not been on human rights questions.

In comparison, the European Court of Human Rights, the Inter-American Court of the Human Rights and some other international judicial bodies provide for adjudication of human rights. Therefore, the World Court’s statue should also be suitably amended to cognize human rights question by modifying Art. 34.

[1] Writer is a Postgraduate Student of Master of Comparative Law (M.C.L.) at Faculty of Law, University of Delhi and Master of Political Science at Indira Gandhi University.

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