Exim Bank Agricultural University

Bangladesh

An Assignment on International Court of Justice

Date of Submission 30 June 2020

Submitted to Submitted by
Md. Ramjan Hossain Md. Hasanul Momin Shawon
Lecturer, Department Of Law Reg no: LLB2018000689
Exim Bank Agricultural Batch: 13th Department Of Law
University Bangladesh Exim Bank Agricultural
University Bangladesh

Exim Bank Agricultural University, Bangladesh

House no: 69-69 Boro Indara Moor, Chapai Nawabganj 6300

Tel: 078153525-29 Email: Info@ebaub.edu.bd

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 INDEX
CONTENTS                                                                           
PAGE NO

International Court Of Justice

Introduction ……...………………………………………..……. 3
Organization and functioning of the court The
Judges…………………………..…………...…….……………… 4
Ad hoc judges ………………………………..…………………… 6
The Registry ………………………..............................……….. 7 
Role of the court …………………………..………………..…….. 9
Jurisdiction of ICJ………………..……………………………….. 10
International Law and International Jurisdiction.……….…….. 12
Judgments & Advisory Opinions. How to Find a
Judgment?............................................................................... 13
ICJ and the Security Council ……………………………………. 14
Criticisms of ICJ …………………………………………………. 15
Case study of ICJ …………………………………………………. 16
Recommendation ………………………………………………… 18
Conclusion………………………………………….……….……. 21

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 International Court of Justice

Introduction
The International Court of Justice (ICJ) is the principal judicial organ of
the United Nations. It was established by the UN Charter, signed on 26
June 1945 at San Francisco, in pursuance of one of the primary
purposes 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 operates under a Statute which forms an integral part of the
Charter, as well as under its own Rules. It started operating in 1946,
when it replaced the Permanent Court of International Justice (PCIJ),
which had been established in 1920 under the auspices of the League
of Nations. The seat of the Court is in the Peace Palace at The Hague. Of
the six principal organs of the United Nations, it is the only one not
located in New York.

In the field of public international law, the ICJ is the only judicial organ
with potentially both general and universal jurisdiction and it is often
called “the World Court”. All 193 members of the UN are automatically
party to the ICJ. The Court operates on equal footing with the other five
organs of the United Nations, namely to bring “by peaceful means, and
in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations

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whichmight lead to a breach of the peace”[1]. The official languages of
the Court are French and English1

Organization and functioning of the court The Judges

The Court is composed of 15 judges elected to nine-year terms of office
by the UN General Assembly and the UN Security Council (sitting
independently of each other). Only a majority in both of these organs
will guarantee that a judge be elected. Elections are held every three
years for one-third of the 15 seats, and retiring judges may be
re-elected. The Members of the Court do not represent their
governments once elected, but are independent magistrates who make
a solemn declaration to exercise their powers impartially and
conscientiously. In accordance with Article 2 of the Court’s Statute, the
Bench must be “composed of a body of independent judges, elected
regardless of their nationality from among persons of high moral
character, who possess the qualifications required in their respective
countries for appointment to the highest judicial offices, or are
jurisconsults of recognized competence in international law”.

All States parties to the Statute of the Court have the right to propose
candidates. These proposals are made not by the government of the
State concerned, but by a group consisting of the members of the
Permanent Court of Arbitration designated by that State, (i.e. by the
four jurists who can be called upon to serve as members of an arbitral
tribunal under the Hague Conventions of 1899 and 1907).

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Each group can put forward up to four candidates, of whom not more
than two may be of its own nationality, whilst the others may be from
any other country. The Court may not include more than one national
of the same State. In addition to which, the Court as a whole must
reflect the main types of civilization and the principal legal systems of
the world. This principle is reflected in the distribution of membership
of the Court among the principal regions of the world. Currently there
are 3 African judges, 2 judges from Latin America and the Caribbean, 3
from Asia, 5 from Western Europe and other States (in particular, the
USA, Canada, Australia and New Zealand), and 2 from Eastern Europe.
Although there is no entitlement to membership on the part of any
country, the Court has always included judges of the nationality of the
permanent members of the Security Council.

The current composition of the Court is as follows. President: Peter

Tomka (Slovakia); Vice-President: Bernardo Sepúlveda-Amor (Mexico);
Judges: Hisashi Owada (Japan), Ronny Abraham (France), Kenneth Keith
(New Zealand), Mohamed Bennouna (Morocco), Leonid Skotnikov
(Russian Federation), Antônio A. Cançado Trindade (Brazil), Abdulqawi
A. Yusuf (Somalia), Christopher Greenwood (United Kingdom), Xue
Hanqin (China), Joan E. Donoghue (USA); Giorgio Gaja (Italy), Julia
Sebutinde (Uganda), and Dalveer Bhandari (India).

Judges come from very different professional backgrounds and have

varying expertise. Some are professors, others national judges, former

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diplomats or former legal advisers to their national governments. This
mix of professional experience is enriching for the Court in its decisions
making processes. In situations where the Court does not include a
judge possessing the nationality of a State party to a case, that State
may appoint a person to sit as a judge ad hoc for the purpose of the
case. Judges ad hoc sit on terms of complete equality with elected
judges for those particular proceedings. Once elected, judges ad hoc
take the same oath as the Members of the Court.2

Ad hoc judges
Article 31 of ihe statute sets out a procedure whereby ad hoc judges sit
on contentious cases before the Court. This system allows any party to
a contentious case to nominate a judge of their choosing. H is possible
that as many as seventeen judges may sit on, one case. This system
may seem strange when compared with domestic court processes, but
its purpose is to encourage states to submit cases to the Court. For
example, if a state knows it will have a judicial officer who can
participate in deliberation and offer other judges local knowledge and
an understanding of the state perspective that state may be more
willing to submit lo the Court jurisdiction.3

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3
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The Registry
The Court has its own secretariat, the Registry, which is headed by the
Registrar, Mr. Philippe Couvreur from Belgium. He was elected, in
accordance with Article 22 of the Rules of Court, in a “secret ballot from
among candidates proposed by Members of the Court” for a term of
seven years. Registrars may be re-elected; Mr. Couvreur is currently
serving his second term of office.

The Registrar carries out diverse duties, set out in Article 26 of the
Rules of Court, with the assistance of some 120 staff members. He is
responsible for all departments and divisions of the Registry. His role is
threefold: judicial, diplomatic and administrative.

The Registrar’s judicial duties notably include those relating to the

cases submitted to the Court. The Registrar performs, among others,
the following tasks: (a) he keeps the General List of all cases and is
responsible for recording documents in the case files; (b) he manages
the proceedings in the cases; (c) he is present in person, or represented
by the Deputy-Registrar, at meetings of the Court and of the Chambers;
he provides any assistance required and is responsible for the
preparation of reports or minutes of such meetings; (d) he signs all
judgments, advisory opinions and orders of the Court, as well as
minutes; (e) he maintains relations with the parties to a case and has
specific responsibility for the receipt and transmission of certain
documents, most importantly applications and special agreements, as
well as all written pleadings; (f) he is responsible for the translation,

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printing and publication of the Court’s judgments, advisory opinions
and orders, the pleadings, written statements and minutes of the public
sittings in every case, and of such other documents as the Court may
direct to be published; and (g) he has custody of the seals and stamps
of the Court, of the archives of the Court, and of such other archives as
may be entrusted to the Court (including the archives of the Permanent
Court of International Justice and of the Nuremberg International
Military Tribunal).

The Registrar’s diplomatic duties include the following tasks: (a) he

attends to the Court’s external relations and acts as the channel of
communication to and from the Court; (b) he manages external
correspondence, including correspondence relating to cases, and
provides any consultations required; (c) he manages relations of a
diplomatic nature, in particular with the organs and States Members of
the United Nations, with other international organizations and with the
Government of the country in which the Court has its seat; (d) he
maintains relations with the local authorities and with the press; and
(e) he is responsible for information concerning the Court’s activities
and for the Court’s publications, as well as for press releases, among
other things.

The Registrar’s administrative duties include: (a) the Registry’s internal

administration; (b) financial management, in accordance with the UN’s
financial procedures, and in particular preparing and implementing the
budget; (c) the supervision of all administrative tasks, including

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printing; and (d) making arrangements for such provision or verification
of translations and interpretations into the Court’s two official
languages (English and French) as the Court may require.4

Role of the court

The Court has a twofold role:

1. to settle, in accordance with international law, legal disputes

between States (contentious function); and

2. to give advisory opinions on legal questions referred to it by duly

authorized UN organs and agencies (advisory function). 5

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Jurisdiction of ICJ
A. Contentious Jurisdiction:
The jurisdiction of ICJ founded upon the consent of the parties is known
as the contentious jurisdiction. In Nicargua case (1986) ICJR, the ICJ
held that it is a fundamental principle that the consent of the state
parties to a dispute is the basis of the courts jurisdiction in contentious
cases. However, the consent need not be in any particular form and
and in certain circumstances the court will infer it from the conduct of
the parties. In Corfu Channel Case (1948) ICJR between UK and Albania,
the court inferred consent from the unilateral application of the
plaintiff state U.K coupled with subsequent letters from the other party
Albania. It is known as the doctrine of forum prorogatum.

In Cameroon vs. Nigeria (2002) ICJR, the ICJ stated that it is a well-
established principle that the Court will exercise jurisdiction over a
state only with its consent and therefore cannot decide upon legal
rights of third states not parties to the dispute. In East Timor case
(1995) ICJR, the ICJ held that it could not rule on the lawfulness of
Indonesia's conduct with regard to East Timor as Indonesia is not a
party to the dispute.

Apart from this kind of contentious jurisdiction, quite a large number of

bilateral and multilateral treaties contain a clause awarding jurisdiction
to the ICJ with respect to questions that may arise from the
interpretation and application of the agreements. For instance, in
Bosnia vs. Yugoslavia (1996) ICJR, the ICJ founded its jurisdiction upon
Art.9 of the Genocide Convention. Similarly, in Nicaragua vs. US (1984)

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ICJR, the court founded its jurisdiction on the basis of a treaty provision,
Art. XXIV (2) of US-Nicaragua Treaty of Friendship, Commerce and
Navigation, 1956 providing for submission of disputes over the
interpretation or application of the treaty.

Further in Nicaragua vs. Honduras (1988) ICJR the ICJ observed that the
existence of jurisdiction was a question of law and dependent upon the
intention of the parties. The Court found such intention between the
parties on the basis of Art.31 of Pact of Bogota, 1948.

B. Compulsory Jurisdiction:
Art. 36(2) of the Statute of ICJ is of great importance in extending the
jurisdiction of ICJ. It says that the state parties to the present statute
may at any time recognize as compulsory the jurisdiction of ICJ in all
legal disputes concerning;

(a) the interpretation of a treaty,

(b) any question of international law,

(c) the existence of any fact amounting to breach of an international

obligation and

(d) the nature or extent of reparation (damages) to be made for the

breach of an international obligation. This provision was intended to
operate as a method of increasing the Courts jurisdiction, by gradual
increase in its acceptance by more and more states.

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C. Advisory Jurisdiction:

The International court of Justice also has advisory jurisdiction and in its
advisory jurisdiction the Court may give advice to the General
Assembly, Security Council or any member state as the case may be.
Recently the Court in its advisory jurisdiction decided the Legality of
wall built by Israel case wherein Israel allegedly in the exercise of its
right of self defence from the terrorist attacks of Hamas group in
Palestine. But the Court observed that the said wall is against the well
established cannons of international law. However as this decision is
not absolutely binding as such, Israel has continued with further
construction of the said wall.6

International Law and International Jurisdiction

At the end of the 19th century, governments met at the First Peace
Conference at The Hague and decided to codify international law in
treaties. Furthermore,they reached an agreement lo establish the first
permanent international court, the Permanent Court of Arbitration.
Article 14 of the Covenant of the League of Nations provided for the
creation of a judicial body entrusted with two kinds of jurisdiction:
contentious and advisory were clearly envisaged. In 1921, the
predecessor of the Imcrnaiioruil Court of Justice (1C.I). the Permanent
Court of International Justice (PC1J) materialized. The PC1.I was
dissolved in 1946 at the same time as the League' of Nations.

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The 1CJ is an organ of the United Nations and the Statute of the
International Court of Justice forms an integral part of the Charter of
the United Nations. The court has functioned since 1945. It does not
have compulsory international jurisdiction, and its main function
remains to decide in accordance with international law all disputes
submitted to it, 16 (Article 38).7

Judgments & Advisory Opinions. How to Find a Judgment?

Within Ihe limits of its ratione materiae, as mentioned above, the ICJ
has both contentious and advisory jurisdictions. For the last sixty years
it has had the opportunity 10 render hundreds of opinions which, due
to numerous print and online sources are relatively easy to research.

The judgments of the Court are binding in law, although states do not
always comply with the 1C.) judgments. However, as statistics show -
see Paulson,

Colter, "Compliance with Final Judgments of the International

Court of Justice since 1987" 98 Am. J. Int'l. L. 434, 458-459
(2004) - while the overall percentage of full compliance by states has
decreased since 1987 from 80% from 1946 to 1987 to 60% from 1987
to 2004, partial compliance has probably increased. Furthermore, the
ICJ continues to be perceived as fulfilling its role a part of the United
Nations system of maintaining peace and security.

The ICJ: The Procedure before the Court How to Find the Court Rules
The Statute ot'lhe ICJ contains the relevant rules regarding the

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procedure before the Court: "Competence of the Court"
(Arts. 34-38), "Procedure" (Arts. 39-64), "Advisory
Opinions" (Arts. 65-68).8

ICJ and the Security Council

Article 94 establishes the duty of all UN members to comply with
decisions of the Court involving them. If parties do not comply, the
issue may be taken before the Security Council for enforcement action.
There are obvious problems with such a method of enforcement. If the
judgment is against one of the permanent five members of the Security
Council or its allies, any resolution on enforcement would then be
vetoed. This occurred, for example, after the Nicaragua case, when
Nicaragua brought the issue of the U.S.'s non- compliance with
the Court's decision before the Security Council. Furthermore, the
most effective form to uiku action for the Security Council - coercive
action under chapter VII of the United Nations Charter - can only be
justified if international peace and security are at slake. The Security
Council has never done this so far. The relationship between the ICJ and
the Security Council, and the separation of their powers, was
considered by the Court in 1992 in the Pan Am case. The problem was
that these sanctions had been authorized by the Security Council, which
resulted with a potential conflict between the Chapter VII functions of
the Security Council and the judicial function of the Court. The Court
decided, by eleven votes to five, that it could not order the requested
provisional measures because the rights claimed by Libya, even if
legitimate under the Montreal Convention, prima facie could not be
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regarded as appropriate since the action was ordered by the Security
Council. In accordance with Article 103 of the UN Charier, obligations
under the Charter took precedence over other treaty obligations.
Nevertheless the Court declared the application admissible in 1998 18 .
A decision on the merits .9

Criticisms of ICJ
This law-related article does not cite its references or sources. You can
hel including appropriate citations, which can be found through legal
research. The International Court has been criticized with respect to its
rulings, its procedures, and its authority. As with United Nations
criticisms as a whole, many of these criticisms refer more to the general
authority assigned to the body by member states through its charter
than to specific problems with the composition of judges or their
rulings. Major criticisms include:

•”Compulsory” jurisdiction is limited to cases where both parties have

agreed to submit to its decision, and, as such, instances of aggression
tend to be automatically escalated to and adjudicated by the Security
Council.

• Organizations, private enterprises, and individuals cannot have their

cases takento the International Court, such as to appeal a national
supreme court ruling.U.N. agencies likewise cannot bring up a case
except in advisory opinions (a process initiated by the court and non-
binding). Other existing international thematic courts, such as the ICC,
are not under the umbrella of the International Court.
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• The International Court docs not enjoy a full separation of powers,
with permanent members of the Security Council being able to veto
enforcement of even cases to which they consented in advance to be
bound.

Case study of ICJ

Corfu Channel (United Kingdom of Great Britain and Northern
Ireland v. Albania)

This dispute gave rise to three Judgments by the Court. It arose out of
the explosions of mines by which some British warships suffered
damage while passing through the Corfu Channel in 1946, in a part of
the Albanian waters which had been previously swept. The ships were
severely damaged and members of the crew were killed. The United
Kingdom seised the Court of the dispute by an Application filed on 22
May 1947 and accused Albania of having laid or allowed a third State to
lay the mines after mine-clearing operations had been carried out by
the Allied naval authorities. The case had previously been brought
before the United Nations and, in consequence of a recommendation
by the Security Council, had been referred to the Court.

In a first Judgment, rendered on 25 March 1948, the Court dealt with

the question of its jurisdiction and the admissibility of the Application,
which Albania had raised. The Court found, inter alia, that a
communication dated 2 July 1947, addressed to it by the Government

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of Albania, constituted a voluntary acceptance of its jurisdiction. It
recalled on that occasion that the consent of the parties to the exercise
of its jurisdiction was not subject to any particular conditions of form
and stated that, at that juncture, it could not hold to be irregular a
proceeding not precluded by any provision in those texts.

A second Judgment, rendered on 9 April 1949, related to the merits of

the dispute. The Court found that Albania was responsible under
international law for the explosions that had taken place in Albanian
waters and for the damage and loss of life which had ensued. It did not
accept the view that Albania had itself laid the mines or the purported
connivance of Albania with a mine-laying operation carried out by the
Yugoslav Navy at the request of Albania. On the other hand, it held that
the mines could not have been laid without the knowledge of the
Albanian Government. On that occasion, it indicated in particular that
the exclusive control exercised by a State within its frontiers might
make it impossible to furnish direct proof of facts incurring its
international responsibility. The State which is the victim must, in that
case, be allowed a more liberal recourse to inferences of fact and
circumstantial evidence ; such indirect evidence must be regarded as of
especial weight when based on a series of facts, linked together and
leading logically to a single conclusion. Albania, for its part, had
submitted a counter-claim against the United Kingdom. It accused the
latter of having violated Albanian sovereignty by sending warships into
Albanian territorial waters and of carrying out minesweeping
operations in Albanian waters after the explosions. The Court did not
accept the first of these complaints but found that the United Kingdom
had exercised the right of innocent passage through international
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straits. On the other hand, it found that the minesweeping had violated
Albanian sovereignty, because it had been carried out against the will
of the Albanian Government. In particular, it did not accept the notion
of “self-help” asserted by the United Kingdom to justify its intervention.

In a third Judgment, rendered on 15 December 1949, the Court

assessed the amount of reparation owed to the United Kingdom and
ordered Albania to pay £844,000.10

Recommendation
The modern proliferation of international courts and tribunals and the
increasing use of binding third party adjudication to settle international
disputes have neither achieved significant developments in
international environmental law nor advanced the state of global
environmental governance. In order to prevent further deterioration of
natural resources and achieve environmental justice, the international
community needs to rethink the existing alternatives for the
improvement of the international judicial system. The International
Court of Justice (ICJ or the "World Court") is the principal
judicial organ of the United Nations and has general authority over any
international law question, including environmental issues. The Statute
of the Court includes many conservative procedural provisions, such as
the ability of each state to determine whether it chooses to be subject
to the decisions of the Court. Each state also has the option to accept
ICJ jurisdiction based on a set of limitations and conditions.

10
https://www.icj-cij.org/en/case/1

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Furthermore, only states themselves can represent their interests
before the court, and non-state actors therefore have no standing.
Despite these substantial limitations, the authority of the ICJ is singular
within the international judicial system. UN member-states have
committed to

undertake to comply with the decisions of the Court, and the UN

Security Council is authorized to assist the Court by enforcing its
decisions. An important additional procedural step took place in 1993,
when the Court established a special seven-member standing Chamber
for Environmental Matters to play a more proactive role in
environmental disputes. However, because the members of the
Chamber are not required to hold any particular expertise on
environmental matters, it is doubtful whether the establishment of the
Chamber will contribute as essentially as expected to the development
of innovative and meaningful environmental jurisprudence. The
Chamber has yet to hear case. In its decisions, ICJ has reaffirmed
principles of international environmental law, such as Principle 21 of
the Stockholm Declaration and Principle 2 of the Rio Declaration.
However, the judgments have heen criticized by academia and civil
society as conservative and environmentally insensitive. The Court did
not adopt progressive legal interpretations that might have led to
important developments of the body of international environmental
law and regulation of critical environmental issues. The ICJ has also
been criticized for its minimalist approach to decision-making; several
notable cases have been dismissed on procedural grounds. In these
cases, the dissenting opinion found the majority to be too reductionist
and posititivist in its legal method and concluded that the ICJ had the
duty to undertake a more proactive and flexible approach, in order to

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make a contribution to some of the seminal principles of the evolving
corpus of international environmental law. Dispute settlement is
identified as a principle function of the World Trade Organization
(WTO). The WTO dispute settlement process begins with

consultations and proceeds with GATT conciliation or mediation

services. A parry may request that the dispute be heard by a panel,
which receives submissions from all interested parties and issues a
report. The Dispute Settlement Body (DSB) adopts the panel's
report unless there is joint opposition to such adoption. Any of the
parties to the dispute may appeal the panel's decision to the
Appellate Body, a standing body of seven members. Parties are
required to implement the panel ruling within a reasonable period of
time. If ruling is not implemented, the injured party may be
compensated and retaliatory measures may be undertaken. Several
steps were undertaken during the Uruguay Round to improve the
effectiveness of the dispute settlement process. Finally, the WTO panels
are not required to take into consideration international law regimes
such as international environmental agreements and the customary
international law. WTO agreements have created a seif-contained and
self-referential regime. Despite efforts to achieve consistency between
existing multilateral environmental agreements and the trade regime,
these two have not been adequately integrated.11

Conclusion:

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In this manner ICJ within it's limited jurisdiction has resolved important
international disputes and thereby has contributed in ensuring
international peace and security. However, it's jurisdiction needs to be
rationalised by creating a wing for conducting those involved in
terrorist activities and in violation of human rights. It will be a better
alternative to special courts like ICTY, ICTR and International Criminal
Court.12

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