Author: Meenakshi Raj
International Court of Justice (ICJ)
To solve international disputes, a need for the establishment of a Permanent Court was felt at the First Hague Conference. In the Second Hague Peace Conference, a proposal by the USA was given for the establishment of such a court. After the culmination of a long process, The Permanent Court of International Justice (PCIJ) was established in 1921. After The Permanent Court of International Justice dissolved, the new International Court of Justice started functioning from April 18, 1946, having its headquarters at the Hague.
What is the International Court of Justice?
The dictionary defines the word international as ‘ something that exists or is carried on between nations’. The word court means ‘a body of people presided by authorities like judges or magistrates, acting as a tribunal in civil and criminal cases. Lastly, the word justice says ‘fairness, equity, and genuine respect for people’.
The International Court of Justice or sometimes called The World Court is the principal judicial organ of the UNO that functions primarily to decide legal disputes between State parties when they agree to submit their disputes to it. The rules concerning the ICJ are set out in the Statute annexed to the UN Charter where all the members of the UN are ispo facto parties to the Statute and are under the obligation to comply with the ICJ in which they are parties.
Composition of the International Court of Justice:
The ICJ consists of 15 judges who are elected from among persons with high moral character and who possess the qualifications to be appointed for the same, irrespective of the fact that no two judges can be elected from the same State. Once a judge is elected, he enjoys a tenure of 9 years and is also eligible for re-election. The judges elect a President and a Vice-President from among themselves, to precede over the court for a period of 3 years.
The system of electing a person as a judge is based on the ‘Root-Phillimore plan’, devised in 1920, where the list of persons to be elected is prepared by the national group in the Permanent Court of Arbitration on the request of the Secretary-General of UN who then prepares the list of nominees to be elected by the General Assembly and Security Council, each voting independently, but simultaneously.
The organizations to be kept in mind while selecting the judges are:
- Main forms of civilization.
- Principal legal systems of the world.
Jurisdiction of ICJ:
The essence of the jurisdiction of the International Court of Justice lies in the fact that the judicial methods of settlement of disputes are just one method of several peaceful methods of settlements and the UN Charter of the ICJ solves these disputes by judicial methods. Moreover, the whole international law is based upon the doctrine of mutual respect of sovereignty as well as the theory of consent (implied or express) and thus, in that light, it becomes very important that in order to take a matter for the jurisdiction, the states should agree to such jurisdiction.
The jurisdiction of ICJ has been categorized into two types:
- Advisory jurisdiction – According to Art. 96, if a matter is referred to the ICJ, it may give opinions 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. The states and individuals cannot refer a matter to the ICJ.
The advisory jurisdiction is designed primarily to assist the General Assembly and Security Council in the discharge of their duties of conciliation over disputes submitted by them, by rendering them an authoritative legal opinion.
Ordinarily, the Court cannot refuse to render advisory jurisdiction, but it may do so when:
- The main point of the legal question referred to relates to a controversy between certain states and any one of these states is not present before the court.
- The question referred to involves other than legal aspects or is embarrassing.
In the Corfu Channel Case (ICJ,1949), the ICJ did not express an opinion on the right of passage of warships through the territorial sea. It limited its observation to the case of ‘straits’.
- Contentious jurisdiction – It comprises of the following types of cases:-
- All cases which the parties refer to.
- All matters specially provided for in the treaties and conventions in force.
- All matters specially provided for in the Charter of the United Nations.
It is essential for the contentious jurisdiction to first establish that jurisdiction has been conferred upon the ICJ either expressly or impliedly by the concerned states. In all such cases, the Court can exercise its jurisdiction only with the consent of the State parties to the dispute, which convey their consent through a notification in a bilateral agreement known as a ‘compromise’ or a ‘special agreement’.
Difference between Advisory and Contentious Jurisdiction-
The difference between the two is that in case of advisory jurisdiction, the opinion is not binding and moreover formal adversarial proceedings are not held. On the other hand, in the Contentious jurisdiction, adversarial proceedings are held as well as the decision of the ICJ is binding upon the parties to that dispute with regard to that particular matter.
Source of Law (Article 38):-
- The Court whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states.
- International custom, as evidence of a general practice accepted as law.
- The general principles of law recognized by civilized nations.
- Subject to the provisions of Art. 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary, means for the determination of rules of law.
- This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
Commonly referred to as the ‘Rohingya genocide case’, The Gambia v Myanmar case is currently being heard by the International Court of Justice. In November 2019, Gambia initiated the case against Myanmar by lodging an application consisting of 45 pages alleging Myanmar to have committed mass murders, rape, and destruction of communities against the Rohingya group.
The Gambia also submitted a request, indicating the provisional measure of protection. A public hearing was kept by ICJ and was described as a remarkable spectacle, relating to which the ICJ issued an Order indicating provisional measures ordering Myanmar to prevent the genocidal acts against the Rohingya Muslims till the time the case is pending. A procedural notice was issued on the same date setting filling deadlines for The Gambia’s Memorial and for Myanmar’s responsive Counter-Memorial.
Critical Appraisal of ICJ:-
With the progress of the 21st century, the global survival of ICJ is very critical. After over 6 decades of existence, the influence of ICJ as a Court is declining. ICJ is the ‘principal judicial organ’ of the UN having two main functions, to assist in the resolution between the states and to give advice whenever needed. Although established under the UN Charter, the Court is not governed by the Charter, the Statute of the ICJ, the Rules and Procedures adopted by the judges, and amended from time to time.
ICJ is at a crossroads bracing with the disputes arising in today’s time – terrorism, human trafficking, environmental issues, and many more, requiring the attention of the court.
With old ways/ techniques of dealing with the matters, ICJ today is having a hard time to cope up with the current scenario.
ICJ and Human Rights:-
Historically being a small part, the International Court of Justice is now making a significant contribution to Human Rights. In certain cases, Human Rights are being given a huge weightage. This requires a concerted effort at the national, regional, and international levels by the State.
India moved to ICJ in Kulbhushan Jadhav’s case on May 8, 2017, who is on a death row by Pakistan, on charges of spying for India’s intelligence agency, and the New Delhi consular is not being accessible to Jadhav. India awaits ICJ’s favorable verdict as Kulbhushan’s rights as a human are being violated and he has been given the death penalty by Pakistan without a fair trial.
With the recent developments in international law and various judgments of the ICJ, we can see a shift in the role of the organization in maintaining international order. Whereas earlier it was only concerned about States, today the Court gives equal importance to individuals as a subject of international law. The organization has successfully helped to fulfill the objective of the UN to ensure international peace and security in the world.