ZAMBIAN OPEN UNIVERSITY

DEPARTMENT OF LAW

Name Mike Mwale

Email address mikemwale777@gamail.com

Student ID 21981799

Program Bachelor of Laws (LLB)

Course name International Law II

Course code LL322

Year Third Year

Semester Two

Assignment number one

Date of submission 25th March, 2022

Mode of learning Full-Time

Cell 09660992893

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 QUESTION

With reference to authority discus the functions of the international court of justice and the
role played by UN Security Council enforcing its decisions.

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INTRODUCTION

The international court of justice is the judicial organ of the United Nation which is involved
with the matters that arises among the nations across the world. It is established under the UN
Charter. The main function of the court is to give advisory opinions to the General Assembly
and Security Council as well as adjudicating on the matters arising between the member
states of the UN. The court has no power to enforce its decisions, therefore Security Council
which is another principal organ of the UN has the power to enforce the decision by
compelling the part to adhere to the decision of the court and impose sanctions on the part
that fails to do so. Therefore, this paper will discuss the capabilities of the international court
of justice and the function of the Security Council in implementing the decisions of the court.

THE INTERNATIONAL COURT OF JUSTICE

Following the First World War which took place among 1914 and 1918 and caused the
establishment of League of Nations established through the Paris peace convention in 1919. It
changed into the first world intergovernmental organization that geared toward keeping peace
and collective protection. However, article 14 of the League of the Nation’s covenant
proposed for the establishment of the permanent court of justice that would be mandated with
the obligation for adjudicating any international dispute submitted to it through the disputing
parties and gives an advisory opinion on matter given to it through the League of Nations 1.
Later in 1933 the permanent court started shunning away their activities because of global
tension and isolationism, eventually the outbreak of Second World War ended the court. In
1942 the United Nations and United Kingdom expressed interest and aid to establish
international court following the war.” Inter-Allied Committee discuss a number of matter
which inter alia consists of in its recommendations that the statue of any new international
court will be primarily based on that of the permanent court of justice, that the new
international court shall keep its advisory jurisdiction. And that the court has to only deal
with judicial matters and political matters only. The international court of justice as referred
to above is the judicial organ of the United Nations which is located in Netherlands. It is
hooked up below article sixty four of the United Nations Chapter 2. The Chapter offers for its
status quo and the responsibilities to be discharged by it. The court consists of 15 judges, who
are elected for the phrases of workplace of 9 years by the UN General Assembly and the
Security Council.
1
Article 14 of the League of Nation Convention
2
Article 16 of the UN Charter

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Article 2 of the statute of the international court of justice presents that the court will be
composed of a frame of impartial judges, elected regardless of their nationality from among
folks of excessive ethical person, who have the qualifications required in their respective
nations for appointment to the judicial positions or are jurisconsults of diagnosed competence
in international law. The contributors of the United Nation 193 in overall are automatically
part of the international court of justice. The modern composition of the bench include of 3
African judges, 2 judges from Latin America and the Caribbean, three from Asian states and
two for Eastern European states3.

Articles 16 to 18 offers with the independence of judges…it provides that judges shall not
hold another position while holding the judicial position at the international court of justice.
Members of the court their own interpretation of the rules and allow them to take part outside
arbitration and hold another post as long as there is no conflict of interest. Furthermore, the
judge can be dismissed by a unanimous vote of the other members of the court. There have
been some instances where the independence of the judges has been puzzled. In Nicaragua
case (United States v Nicaragua), the USA had issued a communiqué suggesting that it
couldn’t present touchy material to the courtroom because of the presence of the judges from
the soviet bloc4.

Furthermore, judges may deliver a joint judgment or deliver their own opinions separately.
The decisions and advisory opinions are by majority and in the event of an equal division, the
vote of the president becomes decisive which was the case in Legality of the Use by a state of
nuclear weapons in armed conflict an opinion which requested by world health organization .
The judges may as well give separate dissenting opinions.

Article 31 of the statute of the international court of justice provides for the procedure
whereby ad hoc judges sit on contentious cases before the court. The system allows any party
of contentious case ( if at all does not have one of that party’s nationals sitting on bench) to
select one additional person to sit as a judge on that case only…however, the number of the
judges nay sometimes be seventeen. For example in the case Canada v United States (Gulf of
Maine case) where the parties clearly stated that they would withdraw the case unless the
court appoint ad hoc judges ton the chambers acceptable to the parties. However, the
limitation is that no two or more judges may have the same nationality.

3
www.icj.com
4
Nicaragua v United States

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FUNCTIONS OF THE INTERNATIONAL COURT OF JUSTICE

Furthermore, as mentioned above the international court of justice is the principal legal organ
of the United Nations. Basically it has two major functions. (1) To settle dispute between
international states. Disputes are submitted by the states and are adjudicated upon in
accordance with international law. (2) To deliver advisory opinions on legal questions given
to it by United Nations organs or other specialized agencies. Only states are subject to
international court of justice, this is because states are major subjects of international law.
However, a state cannot be sued before the international court unless it consents to that
particular action. The court resolves the disputes in three different ways such as settled by the
parties using diplomatic resolutions outside the court anytime before the proceedings. Either
state can enter a Nolle prosequi ( discontinue the proceedings) and withdraw a complain at
any time or rather the court can give a verdict in accordance with international law as
stipulated in international conventions, treaties, customs, general principles recognized by
both parties, judicial precedents or writings of eminent writers. The decisions of the court are
binding on the state parties. As the court is also empowered to deliver advisory opinions,
these opinions are not binding on the parties they are only consultative. The international
court of justice does not have enforcement powers. This entails that the court cannot enforce
its decisions, however, the decisions are enforced by Security Council, which will be
explained hereunder.

Advisory opinion

An advisory opinion is the non binding reasoning or suggestion of the international court of
justice on a matter presented to it by the General Assembly or Security Council. The UN
Charter gives the general assembly and Security Council the power to request for the
advisory opinion from the court regarding the matter that fall in the ambit of their activities.
The fact that the advisory opinions are not binding on the parties, it does not mean that they
are of no legal effect, because the legal reasoning embodied in them reflects the court’s
authoritative view on important issues of international law and the court follows the same
procedure that governs it’s binding judgments delivered in contentious cases submitted to it
by sovereign states5.

SECURITY COUNCIL

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www.icj.com

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Security Council is one of the predominant organs of the United Nations mandated with
responsibility to ensure that there is international peace and protection, making hints for
admission of latest members of the United Nations in addition to approving any amendments
to the United Nations constitution. The powers of the Security Council include inter alia
making international peacekeeping operations, making international sanctions, giving a pass
beforehand of army movement. It must be stated that Security Council is the most effective
organ of the United Nations that gives binding resolutions on member states.

For the foregoing, Security Council has 15 member states of which 5 are everlasting which
include China, France, the Soviet Union, United States and United Kingdom and other non-
everlasting member who are voted for by way of the overall meeting to serve for 2 years.

ENFORCEMENT OF ICJ DECISIONS BY THE SECURITY COUNCIL

Article 94 of the UN Charter presents for that all the organs of the United Nations have to
observe or adhere to the decisions of the court. However, if the parties fail to conform, the
problem could be taken before the Security Council for enforcement of that decision. This
action has been criticized in any such manner that if the choice is in opposition to one of the
everlasting participants of Security Council, the resolution on enforcement will constantly be
vetoed as it became the case in Nicaragua case (United States v Nicaragua)6 wherein
Nicaragua had brought the matter to the attention of the United States of noncompliance with
the court’s decision before the Security Council. Security Council is the only organ of the
United Nations that may pressure the state member to conform with the decision of the court,
if the Security Council refuses to put into effect the decision there is no different way which
may be used to implement it. If either part fails to carry out the duties given by the
international court of justice, Security Council will make recommendations or determine
what measures have to be given the non compliance part. The decision or judgment of the
court is binding, final and without appeal and, through signing the charter, a state member
need to observe any decision of the international court of justice, therefore, the Security
Council may additionally impose sanctions to the non-compliance parties such us
condemnation by other states, financial sanctions, trade embargo and other different
sanctions.

Norway had made an offer at some stage in the san Francisco convention and the meeting of
the committee III, that a clause be inserted in the UN Charter which states that “.“to enforce
6
Nicaragua case [United Nations v Nicaragua]

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by appropriate means the execution of any final decision in a dispute between states delivered
either by the permanent court of international justice (currently known as international court
of justice) or any other tribunal whose jurisdiction in the matter has been recognized by the
state members to the dispute.”” The suggestion was denied, it was not adopted. Therefore,
another proposal was put cross similar to that of Norway. The different proposal by Cuba
read “the members of the league agree that they’ll perform in full good faith any ward or
decision that is so rendered”. The notion by using Cuba took impact in any such way that in
an instance where the parties fails to stick to the duty incumbent upon it under a judgment
rendered by the court, the Security Council shall make guidelines or decide upon measures to
taken to enforce the judgment. If the problem of enforcement and non-compliance comes up
before the court, the Security Council will first see if the non-compliance would be a risk to
international peace and safety or not, if it is discovered that it’s far a hazard to global peace
and security, article 94(2) of the UN Charter might be invoked by means of the Security
Council7.

Furthermore, chapter of the UN charter empowers the Security Council to enforce the rulings.
It should be noted that the enforcement of the rulings is subject to the veto power of the five
permanent members of the council. For example the conflict between Russia and Ukraine, if
the international court makes any ruling to compel Russia to stop attacking Russia, the court
will not be able to enforce its decision. The Security Council will come in but because the
Russia is part and parcel of the UN Security Council it will veto the ruling making
ineffective8.

CONCLUSION

In conclusion, the international court of justice as explained in the passage above, is the
principal who has the jurisdiction to adjudicate on the matter submitted to it by the UN states
members. It has the power to give advisory opinions to the matters given to it by the UN
General Assembly, the decision and advisory opinions of the international court of justice are
not binding on the parties. Although the role of the international of justice is to adjudicate and
provide advisory opinions, it can not enforce it decisions on the party that do not comply with
the decisions. Therefore, the Security Council comes in to enforce the decisions by giving
sanctions such as trade embargo and military actions. However, even though the Security
Council has the power to enforce the decisions of the court, the permanent members of the
7
For argument in this regard see Mosler, H., & Oellers-Frahm, K.H., “Article 94”, p. 1177.
8
Russia v Ukraine

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Security Council can veto the decision which makes it difficult for the disputing part to
comply with the decisions.

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BIBLIOGRAPHY

BOOKS

Elizabeth, A. and J. law (1998). Oxford Dictionary of law (10th edn). New York: OUP.

Shaw, M.N [2000], international law (6thed). New yoke: Cambridge university press.

CASES

Nicaragua v United States

CONVETIONS

United Nations Charter

League of Nations Convention

Statute of the international court justice

WEBSITE

www.icj.com

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