International Court of Justice- Bridge between Nations
Author: Aditya Kumar
Co-Author: Priya Bhatnagar
ICFAI Law School, ICFAI University, Dehradun
Luc de Clapiers de Vauvenargues, a French Author has very well said that Men despise great research when they do not feel capable of great success. But it is normally seen that research is a result of the candidate’s feeling that he is really capable of undertaking the purposed research paper.
With the same conception in my mind, I have made an honest attempt to research on “International Court of Justice”. One of the most important courts at the universal level is the International Court of Justice (ICJ) with a well-known historical role in the peaceful settlement of disputes. Judges of the ICJ generally work under political pressure, though the Court has always been declared to be free from any political bias. This paper attempts to examine the impartiality and independence of ICJ judges concerning the nomination, selection process, and voting and if national politics influence the decision-making. However, there is another direction: how international law infiltrates into domestic law and how ICJ decisions affect the region. This paper also attempts to highlight how the court works competence of the International Court of Justice and how the court functions.
OVERVIEW OF THE INTERNATIONAL COURT OF JUSTICE
The International Court of Justice was established in 1945 by chapter 14 of the Charter of the United Nations, started functioning and began its work in 1946. It was considered as the principal organ of the United Nations or the UN and was the central institution for the peaceful settlement of legal disputes between or among states. Presently, the seat of the International Court of Justice is in The Hague, Netherlands but it may also hold its hearings elsewhere.
It succeeded the Permanent Court of International Justice that was established by the Covenant of League of Nations that operated between 1922 to 1940 but was dissolved in 1946.
The International Court of Justice according to its Statute is composed of 15 judges that are the representatives of the main forms of civilization and of the principal legal systems of the world. They are elected for terms of office of nine years by the General Assembly and the Security Council that came from a list of candidates that are nominated by government-appointed national groups of international-law experts and no two judges can come from the same country. The quorum constitutes nine judges and decides questions or disputes based on the majority decision of the present judges. The Court functions in accordance with its statutes that for the most part repeat that of its former tribunal of the Permanent Court of International Justice and its principal functions is to decide in accordance with its statutes, international law and legal disputes submitted to it by other states or known as “contentious jurisdiction.” The International Court of Justice also gives advisory opinions on legal questions submitted or referred to it by the General Assembly, Security Council, or other organs of the United Nations and other specialized agencies authorized by the General Assembly which are known as the “advisory jurisdiction.” HISTORY BEFORE THE COURTS OF JUSTICES
Before the Permanent Court of Justice and the International Court of Justice was created, its origins can be traced back to 1794 where the Jay Treaty between the United States of America and Great Britain was established. This Treaty of Amity, Commerce, and Navigation paved way for the establishment of the mixed three commissions that are composed of American and British Nationals that were in equal numbers whose task is to be able to settle a number of questions between countries which it cannot just be or cannot be resorted to negotiation. They reawakened the interest of arbitration even though they are not organs of a third-party adjudication but functioned as tribunals.
The Alabama Claims Arbitration in 1872 between the United States and the United Kingdom was considered as a decisive phase wherein under the Treaty of Washington of 1871, both countries, United States and the United Kingdom agreed to submit arbitration claims by the US for the alleged breach of neutrality by the UK during the American Civil War. Both the countries stated therein that certain rules would govern the duties of the neutral governments that were to apply by the tribunal, which consists of five members which they agreed upon that is appointed by the Heads of State of the United Kingdom, United States, Brazil, Switzerland, and Italy. The arbitral tribunal’s award ordered the United Kingdom to pay compensation that was duly conformed with. The proceedings served as a successful demonstration of the arbitration’s effectiveness in settling a major dispute that led developments in different directions in the nineteenth century onwards namely:
- Growth in the practice of insertion of clauses in treaties that provide recourse to arbitration if there are any circumstances that may lead to a dispute between parties.
- The conclusions of general treaties of arbitration for settling specific classes of inter-state disputes.
- Proposals in the creation of a permanent international arbitration tribunal to remove the need of a special ad hoc tribunal in deciding abatable disputes.
- Efforts in constructing a general law for arbitration
The Hague Peace Conference of 1899 marked the beginning of the third phase in the modern history of international arbitration regarding peace and disarmament that was discussed in participation by the smaller States of Europe, Mexico, and some Asian States that ended by adopting a convention on the Pacific Settlement of International Disputes which dealt with arbitration and other methods of pacific settlement such as tender of good offices and mediation.
The 1899 Convention also created a provision for the creation of permanent machinery that would enable arbitral tribunals to conduct its work and is known as the Permanent Court of Arbitration. It consists of a jurist that was designated by countries that agreed and participated in the Convention. The Convention created at The Hague, a permanent Bureau that functions in relation to a court registry and a secretariat that laid down a certain set of rules of procedure that governs the conduct of an arbitration. The Permanent Court of Arbitration represented a method in facilitating the creation of arbitral tribunals and was established in 1900 that began operating in 1902.
A few years later in 1907, the Second Hague Peace Conference was held wherein the States of Central and South America were also invited, which revised the Convention and improved the rules regarding the arbitral proceedings. It confined itself in recommending States that they should adopt a draft convention for the creation of a tribunal court of justice as soon as the agreement reached respecting the selection of the judges and the constitution of the court. This court has never been established but has shown certain fundamental ideas that were useful and led to be the source of inspiration in drafting the Statute of the Permanent Court of Justice years later.
After such proposals that were disregarded, the Permanent Court of Arbitration took its place or residency in the Peace Palace thanks to Andrew Carnegie’s gift that made a positive contribution in the development of international law. Notable cases that were decided during the span function of its machinery were the Carthage and Manouba cases of 1913 regarding the seizure of vessels, the Timor Frontiers of 1914 and the Sovereignty over the Island of Palmas of 1928. These cases had thrown into relief the shortcomings of the Permanent Court of Arbitration.
The work of the two Hague Peace Conferences and its given ideas during its time gave spark and inspired statesmen and jurists that also gave them influence in creating the Central American Court of Justice which operated during 1908 to 1918 and other plans and proposals that were submitted during 1911 to 1919 by both international and national bodies as well as by governments for establishing an international judicial tribunal that culminated the creation of the Permanent Court of International Justice in the framework of the international system that was set up after the end of the world war 1.
WHO MAY USE THE COURT?
The ones who may use the Court are the states that have access to the courts and accepted its jurisdiction. Access to the court is granted to all states that are considered parties to the statue of the court. All members of the United Nations are automatically considered as part or parties to the Statute of the Court. And as an exception to the mentioned rule, the courts may also be open to states that are not parties to the Statute of the Courts.If a member of the United Nations fails to adhere to a judgment of the court, an appeal for assistance may be made to the Security Council. It is the Security Council that determines the conditions under which the court shall be open to states that are not parties to the Statute of the Court in its resolution of October 1946.
The cardinal rule in international courts is that the states cannot be compelled to submit disputes unless they have consented to the international adjudication before a dispute had arisen between states or after such. States may also limit their acceptance in different disputes and may affix different conditions or reservations to their acceptance.
THE JURISDICTION OF THE COURT
Broadly speaking there are two types of the jurisdiction of the Court Contentious Jurisdiction, and Advisory Jurisdiction.
That jurisdiction of the Court on the footing of which the Court decides any case with the consent of the parties to the case is called ‘Contentious Jurisdiction.’ It is the fundamental principle of international law that without the consent of any party to any case, the same shall not be referred to mediation or arbitration. The same rule is, with some restrictions. is applicable to the jurisdiction of the Court. In other words, the Court is not entitled to institute any proceeding merely because one party files a case, rather the consent of both the parties is necessary that dependent is also required to give consent to the case. Contentious Jurisdiction is of three kinds which are mentioned as under:
- Voluntary Jurisdiction.
- Ad hoc Jurisdiction.
- Compulsory Jurisdiction.
i). Voluntary Jurisdiction: Thatjurisdiction which the parties by virtue of an agreement or treaty consult with the court is called Voluntary Jurisdiction. When the parties to any treaty or any contract stipulate that if any situation of the dispute arises in respect of such treaty or contract the dispute shall be referred to the Court for settlement, this type of jurisdiction of the Court is said to voluntary jurisdiction. Thus, involuntary jurisdiction of the parties to a dispute gives their consent for the jurisdiction of the Court in advance.
ii). Ad hoc Jurisdiction: Thatjurisdiction of the Court when the parties, in the happening of the dispute, confers on Court and in which the Court has no right to take up the case, is said to be Ad hoc Jurisdiction.
iii). Compulsory Jurisdiction-Compulsory Jurisdiction means that kind of jurisdiction which the Court enjoys without the assent of the parties. In classic international law, there is no concept of the Compulsory Jurisdiction of the Court, but recently it has been contended that now the time has reached to confide the Court with the compulsory jurisdiction. In the case of Compulsory Jurisdiction, the Court is to be empowered to take up a case without the assent of the parties like municipal Courts. But once again, the application of the Compulsory Jurisdiction at the universal level depends on the acquiescence of the Nation States. The procedure for the Compulsory Jurisdiction of the Court has been laid down too.
Advisory Jurisdiction means that jurisdiction of the Court by which it may only give an advisory opinion on a question of law. This does not require the assent of the parties to a case but when any International Institute (General Assembly or Security Council) asks the Court to give an advisory opinion on the question. This opinion or advice is not binding on the parties. The case may be referred by an international organization or by any organs within the scope of their activities.
COMPETENCE OF THE COURT
1. Only states may be the parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules, may request of the public international organization’s information relevant to cases before it and shall receive such information presented by such organizations on their own initiative.
3. Whenever the construction of the constituent instrument of a public international organization adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.
1. The Court shall be open to the state parties to present Statute.
2. The conditions in which the Court shall be open to other states shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to any case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such a state is bearing a share or part of the expenses of the Court.
1. The jurisdiction of the Court comprises of all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present the Statute may at any time declare that they recognize compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
- the interpretation of a treaty;
- any question of international law;
- the existence of any fact which, if established, would constitute a breach of an international obligation;
- the nature or extent of the reparation to be made for the breach of an international obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.
HOW THE COURT WORKS
In this part shall the process on how the International Courts of Justice be explained wherein bringing a case to the court means referring a matter to an independent and impartial adjudicative body that makes its decision on the basis of objective legal criteria.
The Court will weigh the given evidence that was submitted to it by the parties and the applicable relevant rules, procedures and principles of international law, shall also be considered in order to provide a well-reasoned and just judgment or the said case.
The Court’s procedure consists of a written and an oral part. Both parties have equal opportunities to present their arguments on the Court’s jurisdiction as well as the admissibility and the merits of the case in hand. During the proceedings or the institution of the action by the parties, a party may request before the Court for them to have an opportunity to rule on the merits of the case, to order provisional measures for the prevention of imminent and irreparable damage from being caused to the rights in dispute. And until and unless it is discontinued, the proceedings may be concluded by a judgment given by the Court and these judgments given by the Court shall be binding upon the parties, it will be final and without the right to appeal. The parties must abide by the proclaimed judgment and if a party fails to comply with the judgment given, the provision in the charter of the United Nations for recourse by the Security Council shall be applied. Example of this is in the case-Nicaragua v. United States, ICJ 1996, where the United States previously accepted the compulsory jurisdiction of the court, then after such acceptance, the United States was found guilty for having planted mines and explosives in the Nicaraguan bays in support of the rebels called as contras and called on the United States to cease and desist from unlawful use of force and to compensate Nicaragua with reparations. The United States further did not pay them such reparations.
Another case is Mexico v. United States, ICJ, March 31, 2004, wherein the complaint of Mexico against the United States, who is one of the signatories to the protocol on the Vienna Convention on Consular Relations, had violated Sec. 36 of the Vienna Convention for not informing the Mexican nationals of their rights to communicate thru consul to their government and to be visited by the former and also ordered the United States to reconsider and review the death sentences that was imposed on the Mexican nationals by the US courts, rendered in violation of their said rights. So to prevent themselves, the United States from compliance with the decision given by the International Court of Justice, withdrew from the protocol so the decision of the Court will not amount to be binding upon them.
The International Court of Justice as the principal organ of the United Nations should be taken very seriously especially the given judgment of the Court. The case-law of the International Court of Justice is relied upon by domestic courts, other international courts and tribunals, legal advisers and scholars in the field of international law and the International Law Commission in relating to the promotion of the progressive development of the international law and its codification.
The Court may also re-look cases either through interpretation or for revision. Interpretation and revision is provided in the provisions of statute wherein in it is mentioned there that, in case of a disagreement as to the meaning, nature, and scope of a judgment, the Parties may request the Court to construe it. The request for interpretation may be submitted through the means of application of one or more of the parties or through a special agreement. And before a court to be able to entertain a request for interpretation, there must be a dispute as to the meaning and scope of the judgment. In the Chorzow Factory Case of 1927, it is held that under that provision, “it should be sufficient if the two governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court.” The interpretation that the Court will render must be kept within the confinement of the judgment in which it is the object of the requested interpretation.
Aside from interpretation, the other method wherein the Court may open a case is through a request for revision of a judgment as provided by the concerned Statute. An application for revision of a judgment may be filed only if its discovery is based on a fact that is taken as a decision that when such judgment is delivered, it was unknown to the Court and to the party claiming such revision, and the lack of knowledge was not due to negligence. The indifference with the requests for interpretation, there is a time-limit or specified period for filing the said request, that is the application for revision that must be made within six months upon discovery of the new fact.The notion of revision of judgments clearly shows the concept of res judicata, and in Article 61 of the Statute makes it clear that such revision procedures are in the form of exceptional nature, especially to the principle that is expressed in the Article 60 that such judgments of the Court are final and without appeal.
The revision procedure has been used in very limited instances or situations throughout the history of the International Court of Justice.
In the situation that relates to gravity and urgency, the International Court of Justice may indicate or apply provisional measures of protection in pursuant to Article 41 of its Statute, in order to prevent or avoid irreparable harm. It also has a binding character.
The court may also render judgment in certain disputes between states, and with the authorization of the General Assembly, it may deliver advisory opinions to any organ of the United Nations and its agencies.
In the case concerning Questions Relating to the Obligation to Prosecute or to Extradite (Belgium versus Senegal, order of 28 May 2009) − where the Court decided not to indicate provisional measures − I warned, in my dissenting opinion (para. 97), that the basic right at issue pertained to the realization of justice, and the fact that the binding character of provisional measures of protection is in present scenario beyond question, on the sole basis of the res interpretata of the ICJ, does not mean that we have reached a culminating point in the evolution of the ICJ case-law on this particular matter.
As to its function to give advisory opinions, it was held by the International Court of Justice in accordance to the Article 96 of the Charter of United Nations and Article 65 of its Statute that as part of its functions to give advisory opinions in relation to legal questions submitted to it, enables the entities of the United Nations to seek guidance and directions from the Court in order to conduct its activities in accordance with the law. Such opinions given by the International Court of Justice are merely advisory and is not binding. They are considered as a guide that may be used by the United Nations. The consent of the States is not a compulsory condition in order for the Court to give such opinions. The acceptance or non-acceptance of it shall be determined by the internal law of such an institution. It was observed by the Court during 1950 that, “The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases. The situation is actually different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between the States. The Court’s reply is and has to be only of an advisory character: as such, it has no binding force. It follows that no State, whether it be a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable and appropriate in order to obtain enlightenment as to the course of action it should take. The Court’s opinion is given not to the States, but to the organs which are entitled to requestit; the reply of the Court, itself an organ of the United Nations, represents its participation in the activities of the Organization, and, also in principle, should not be refused.”
In its opinion on the Legality of the Construction of the Wall in the Occupied Palestinian Territory, The International Court of Justice was asked if what are the legal consequences that arise from the construction of the wall that was built by Israel, its occupying power, in the Occupied Palestinian Territory, that included in and around East Jerusalem in consideration of the rules and principles of international, which included the Fourth Geneva Convention of 1949 and other relevant Security Council and General Assembly resolutions. The International Court of Justice answered the given question against Israel and cited the rules of international law that supported its conclusions, the relevant rules, and principles of international law.
The International Court of Justice also gave its opinion regarding the Legal Consequences of the Construction of a wall in the Occupied Palestinian Territory, wherein it considers a legal question may also have a political aspect, but such political aspect or characteristic may not deprive it of being a question of legality and deprive the Court of a competence that is expressly conferred on it by its Statute, the court cannot just refuse in admitting the legal characteristic of a question that invites it in the discharge of an essentially judicial task.
The International Court of Justice observes that certain rules and principles can be found in the Charter of the United Nations Charter and such other treaties, customary international laws, and resolutions that are relevant and is adopted in pursuant to the Charter by the Security Council or the General Assembly.
Regarding intervention, in accordance with the Statute of International Court of Justice, if a State has an interest of a legal nature that could affect the decision of a case, it may submit a request to the Court for it to be permitted to intervene. It shall be for the court to decide upon the request. It also mentioned that whenever the construction of a convention in which the states other than those concerned in the case are parties in question, the Registrar must notify all such states forthwith and further every state which is notified has the right to intervene in the proceedings, but if it uses this right, such construction given by the judgment will be equally binding upon it. And with regards to its application in the permission to intervene, in the case of Territorial and Maritime Dispute in Nicaragua v. Columbia, 2011and in the case in relation to Jurisdictional Immunities of the State in Germany v. Italy: Greece intervening, 2010-2012. It was held in the latter case that for the first time in its history, the International Court of Justice, granted the faculty intervention to a third party, Greece (as a non-party) transcending the traditional tendency of bilateralization to the arbitral past experience.
The International Courts of Justice or the ICJ is the body that the United Nation had created as its principal judicial organ that handles primarily international disputes or cases among States and International Organizations. It was established after the Permanent Court of International Justice or the PCIJ after the outbreak of war that started in 1939 that caused serious problems to the Permanent Court of International Justice. It generally functions in accordance with its Statutes, the international laws, and cases submitted to it by other states. And the scope of its jurisdiction is the ones or the states that had consented to the settlement of their dispute in the said court. The International Court of Justice in accordance with its Statute comprises 15 judges that are the representatives of the main forms of civilizations and of the principal legal systems of the world. They are elected for terms of office of nine years by the General Assembly and the Security Council.
In this paper, the above-mentioned subjects and the other topics shall be discussed thoroughly and in a detailed manner wherein the history of the ICJ, its functions, jurisdiction, and the basis for its actions in the cases submitted to it will be explained for better understanding and for others to have an idea of the dealings of the International Court of Justice and on how it was established before.
As it has discussed ICJ is one of the best judicial bodies for the resolution of international disputes provided that it is given the jurisdiction and power. Jurisdiction and power mentioned in its statute have been subjected to many flaks. The main feature of the jurisdiction- the consent of the states- creates an end number of jurisdictional problems.
The peaceful settlement of disputes by the International Court of Justice using its most pragmatic methods was identified and critically analyzed in this paper with supporting journal references. The United Nations and International Court of Justice’s primary aim is to overcome national and International disputes between parties in a very peaceful and professional manner using the available methods. These methods more or less tend to follow similar rules and patterns and the end result is towards solving disputes. Further ICJ leaks out on certain powers that are essential for a world court. It is powerless before the Security Council resolution. The fact that the ICJ’s decisions are not effectively enforceable is a huge barrier for its contribution to the settlement of disputes. Finally, I have suggested, in order that the purpose of a world court to be fulfilled the ICJ should be given the compulsory jurisdiction, power to review the resolution of the Security Council, international organizations to give the legal personality before ICJ. It should be noted that the implementation of these suggestions depends on the willingness of the international community.
- Agpalo Ruben, Public International Law, Rex Book Store, (2006) Page No. 33, 56-89
- Bernas, Joaqin , Introduction to Public International Law, Rex Book Store (2009) Page No.19-28
- The jurisdiction of the International Court of Justice: Model clauses and Templates. (8:45p.m, 24th Oct.)
- S. Rosenne, The Law and Practice of the International Court, International court of justice ICJ (8:45p.m, 24th Oct.) http://www.infoplease.com/encyclopedia/history/international-court-justice.html
- Pax, Thomas J, Nicaragua v. United States in the International Court of Justice: Compulsory Jurisdiction or Just Compulsion?, (9:00p.m, 24th Oct.) http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1426&context=iclr
- Antônio Augusto Cançado Trindade, Statute of the International Court of Justice,Historical Antecedents and Lessons from the Past(9:00p.m, 24th Oct)
- League of Nations, Covenant of the League of Nations(9:00p.m, 24th Oct.)
- Statute of the International Court of Justice, Organization of the court, (9:30p.m, 25th Oct)
 Article 35, par. 1, Statute of the International Court of Justice
 Article 93, par. 2, Statute of the International Court of Justice
Article 35, par. 2, Statute of the International Court of Justice
 Article 94, par. 2 Statute of International Court of Justice
Article 60, Statute of International Court of Justice
PCIJ, Chorzów Factory case (Interpretation of Judgments Nos. 7 and 8), PCIJ, Series A, n. 13, 1927
On revision procedures at the ICJ, cf., e.g., R. Geiss, “Revision Proceedings before the International Court of Justice”, 63
Res Judicata is a matter that has been adjudicated by a competent court and may not be pursued further by the same parties.
Article 60, Statute of International Court of Justice states that: The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.
 Article 41, Statute of International Court of Justice states that:1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
Antonio Augusto Cançado Trindade, Statute of the International Court of Justice, p. 11
Article 96, UN Charter states that: a. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.
b. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
Article 65, Statute of International Court of Justice.
 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950
 Legality of the Threat or Use of Nuclear Weapon, I.C.J. Reports 1986 (I), p. 234, par. 13.
 Article 62, Statute of Court of Justice
 Article 63, Statute of Court of Justice
Cf. ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, I.C.J. Reports 2011
ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, I.C.J