UNIVERSITY INSTITUTE OF LAWS

PURC, LUDHIANA

ASSIGNMENT ON

Write note on role of international court of justice under public

international law and its evolution. Discuss its current relevance.

Submitted for the subject of Public International Law

Submitted To-: Submitted By-:

Dr. Rajnish Saryal Abhinav Mittal

80/20F

B.A.LLB (7th sem.)

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 ACKNOWLEDGEMENT
“It is not possible to prepare a project report without the assistance and
encouragement of other people. This is one certainly no exception”.

At the outset of this assignment, I would like to extend my sincere and heartfelt
gratitude to all people along the way. No words can adequately express my sense
of gratitude; still, I express my heartfelt indebted to my teacher Dr. Rajnish Saryal
for his conscientious and guidance to accomplish this assignment and I extend
my gratitude to him for giving me this opportunity and for always believing and
encouraging me to set higher goals.

I also acknowledge my gratitude towards my family and special thanks to all my

friends for their guidance and support.

Abhinav Mittal

80/20f

B.A.LLB (7th sem.)

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 INDEX
S.NO. CONTENTS Page No.
1 Introduction 4
2 Evolution 4-6
3 Composition &Appointment of Judges 6
4 Role Of ICJ 6-8
5 Landmark Cases 8-10
6 Relevance Of ICJ on International Law 10-11
7 Criticism Of ICJ 12
8 Conclusion 13

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 INTRODUCTION
A legal dispute can arise whenever two or more parties have different interests in
mind and cannot come to a common ground. This principle applies to
international law as well wherein disputes between states are resolved by the
International Court of Justice (ICJ). The International Court of Justice has its seat
at Hague, Netherlands. It had been established in 1945 and began its functioning
from 1946. International Court of Justice plays a really important role within the
settlement of international disputes with accordance to international law. The
court settles the disputes which are associated with nations only, not between the
individuals and its procedure is governed by the statute referred to as the Statute
of International Court of Justice.

The establishment or maintenance of public order needs two basic pillars: the
existence of a proper law and the machinery for enforcing it, including the
sanctions behind the law. In the international sphere, order cannot be maintained
if there is no existence of a well-defined and well-codified public international
law and an effective agency to enforce it.

EVOLUTION-:

The first permanent institution established for the purpose of settling international
disputes was the Permanent Court of Arbitration (PCA), which was created by
the Hague Peace Conference of 1899. Initiated by the Russian Tsar Nicholas II,
the conference involved all the world's major powers, as well as several smaller
states, and resulted in the first multilateral treaties concerned with the conduct of
warfare. Among these was the Convention for the Pacific Settlement of
International Disputes, which set forth the institutional and procedural framework
for arbitral proceedings, which took place in The Hague, Netherlands. A second
Hague Peace Conference in 1907, which involved most of the world's sovereign
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states, revised the convention and enhanced the rules governing arbitral
proceedings before the PCA. During this conference, the United States, Great
Britain and Germany submitted a joint proposal for a permanent court whose
judges would serve full-time. As the delegates could not agree as to how the
judges would be selected, the matter was temporarily shelved pending an
agreement to be adopted at a later convention.

The Hague Peace Conferences, and the ideas that emerged therefrom, influenced
the creation of the Central American Court of Justice, which was established
in 1908 as one of the earliest regional judicial bodies. Various plans and proposals
were made between 1911 and 1919 for the establishment of an international
judicial tribunal, which would not be realized in the formation of a new
international system following the First World War.

The credit of beginning the system of settling international disputes through

judicial decisions goes to the ‘Permanent Court of International Justice'
(PCIJ) which was established under the “League of Nations”. Before its work was
interrupted by World War Il', the Court rendered 29 judgments in contentious
cases and delivered 27 advisory opinions. The PCIJ held its final session in
October 1945 and on January 30, 1946 all of its judges tendered their resignations.
The ICJ may be looked upon as the successor to the PCIJ. The provisions of the
Statute of the ICI are similar to that of the Statute of the PCI except for a few
changes, most of which are purely formal. Article 92 of the UN Charter expressly
lays down that the Statute of the ICJ is based upon the Statute of the PCI.
Furthermore, when the new Court met, it adopted the Rules of the Court of its
predecessor without any substantial change.

Establishment of the ICJ: The UN Charter provides for the establishment of the
ICJ as one of the principal organs of the UN. The ICJ is an organ of the UN,
inasmuch as its Statute forms an integral part of its Charter. The result is that all
the members of the UN are ipso facto parties to the Statue of the ICJ. In this

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sense only it differs from the PCIJ, inasmuch as the latter was legally not an organ
of the League of Nations and its Statute constituted a separate international
agreement different from the Covenant. ICJ is constituted in accordance with the
provisions of the Statute of the ICJ, as annexed to the Charter of the UN, of which
it forms an integral part. All the members states are under an obligation to comply
with the decision of ICJ in the cases of which they are parties.

Composition & Appointment of Judges

The judges of ICJ are elected on the basis of the Root-Phililmore Plan given in
1920. Accordingly, the judges are elected by the General Assembly and Security
Council from a list of persons drawn up by the member states of UNO. Out of
fifteen, five judges are elected every three years and continuity is maintained.
There is a close co-ordination between General Assembly and Security Council
in electing the judges of ICJ. The art.9 of the Statute of ICJ says that electors must
keep in mind not only that the persons to be elected should individually possess
the required qualifications, but also that in the ICJ the representation of all the
main forms of civilization and of the principal legal systems of the world should
be assured. The members of the ICJ are elected for every nine years and may be
re-elected. A judge cannot be dismissed unless it is the unanimous opinion of the
other members of the court that he has ceased to fulfil the required conditions.

Role of International Court of Justice

1. To resolve disputes-: The court’s primary role is to pass judgment upon

disputes between sovereign states. According to Article 38(1) of the Statute,
the Court shall decide the disputes submitted to it in accordance with
international law as are submitted to it and shall use the sources
of international law in following order:
a) International Conventions (and treaties), whether general or particular,
establishing rules expressly recognized by the contesting States;

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b) International customs, as evidence of a general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
2. Advisory opinion-: According to Article 65 of the Statute, the ICJ may give
an advisory opinion on any "legal question" to anybody which has been
authorised in accordance with the UN Charter or in accordance with the
Statute. Article 96(1) of the UN Charter lays down that the Security Council
and the General Assembly may request to the Court to give an advisory
opinion on any legal question. In addition to them, other organs of the UN and
specialized agencies may also request for an advisory opinion on 'legal
questions' arising within the scope of their activities if so authorized by the
Assembly. These bodies may seek the advisory opinion only on legal
questions. But there is a difference in the seeking of advisory
3. Binding force of the decisions of the Court: According to Article 59 of the
Statute, the decisions of the Court shall not have a binding force except upon
the parties to a dispute, and only in respect of a particular dispute between
them. This Article, therefore, means that the previous judgments of the court
are not binding either upon the States or upon the court itself. In other words,
they are not precedents yet it would be wrong to conclude that they have no
value at all. In fact, the previous decisions influence the future decisions of the
Court. States are under no compulsion to recognize its jurisdiction or confer
the same on it, but once their consent to it has been established it is incumbent
upon them to comply with its decisions. A judgment of the court is final and
without appeal.
4. Comply to court’s decision: The member states have to comply with the
decision of the court and they have to sign the charter in that respect, where
they are party to any such case which is before the court. The decision of court

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 are issued as bilingual documents, with the English and French versions and
it is delivered in the public.
But when any party did not fulfil the judgment of the court than in that case a
state can move to the Security Council.
5. Furthering peace as an essential community interest: The maintenance or
restoration of peace and the quest for sustainable peace have been part of
international legal thought for a long time. International courts are an
important component of the operating system of international law, which
exercise an increasing influence on interpreting and developing the normative
content of international law. The ICJ has managed to play a constructive role
within the institutional framework of the UN with regard to the maintenance
of peace by first recognizing the latter's international legal personality;
secondly, by laying the legal basis for peace-keeping and other quasi-military
operations of the UN, and, thirdly, by interpreting the concurrent functions of
the General Assembly and the Security Council in matters related to the
maintenance of international peace and security.
By settling inter-State disputes and rendering advisory opinions to the main
organs of the UN and its specialized agencies the ICJ has contributed in
maintaining or restoring international peace and security, alongside the main
organs of the UN.

Landmark cases before International Court of Justice (ICJ):

ICJ has dealt with a number of cases right from its establishment and have given
landmark judgments in the process. Some of them are listed below:
1. Corfu Channel Case (1947-49)

It dealt with state liability for maritime damages. This case also discussed the
theory of innocent passage. In this case, two British Warships had collided with
mines in the Corfu Channel in Albanian Sea which resulted in loss and destruction
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to both life and property. In response to this, the British Navy did a search
operation without Albania’s approval in the Albanian sea and also sought for
reparations from Albania for the loss incurred. Albania however counter-claimed
that the UK had violated its territorial seas.

Decision of the ICJ

Albania had to reimburse the UK for the loss of life and property and was held
liable on the grounds that it had continued surveillance of the Channel and
therefore such an incident should have been averted.

2. Nicaragua v. United States of America (1986)

This case is one of the most famous examples of the enforcement powers of the
ICJ and the UN. In this case, the Court had ruled that the U.S had supported the
rebel groups in Nicaragua as covert-war efforts against the then Nicaraguan
government which was a violation of the International Law. The Court ordered
the US to pay war reparations to Nicaragua but the US refused to do so and also
pulled out from the compulsory jurisdiction. When Nicaragua approached the
UNSC for enforcement of the ICJ order, the US vetoed the enforcement action.

3. The Rohingya Genocide 2017

The Rohingya Genocide is a chain of persecutions by the Myanmar government

and the Buddhist community of Myanmar against the community of Muslim
Rohingyas. The Myanmar military and police cracked down on Rohingya
Muslims and failed to check the growing Islamophobic sentiments against them.
This resulted in thousands of Rohingyas being killed, refugees fleeing to other
countries, destruction of Rohingya villages, schools and businesses, wide-scale
violation of human rights by the military and gang rapes and other sexual violence
against women and girls of the Rohingya community. The Gambia (or Republic
of The Gambia) had brought a case against Myanmar for the Rohingya genocides.

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It was noted by the ICJ that thousands of Rohingya refugees were made stateless
due to state-sponsored violence.

The court observed that the Rohingyas were a ‘protected group’ under Article II
of the Genocide Convention. They stated that despite Rohingya Muslims living
in Myanmar prior to independence, they were ‘made stateless by the 1982
Citizenship Act and disfranchised in 2015 from electoral processes.

The bench ruled that Myanmar must keep in mind the duties given under the
Genocide and ensure all acts of prejudice against Rohingya Muslims are stopped.

Relevance of ICJ to the international law:

The International Court of Justice is very much relevant in the current times as it
contributes in the expansion of the International Law. In view of various decisions
of the court, it can be concluded that International Court of Justice has played a
significant role to the development of International Law. This court has made
certain pronouncements on territorial disputes and on diverse issues like asylum,
nationality, trusteeship, fishery rights, law of the sea, the right of passage, the
status of foreign investments and even in respect of sovereignty and the non-use
of force. In dealing with all these issues, the court contributed to the development
of International Law in two ways. Firstly, it interpreted and applied the existing
rules in such a way so as to resolve issues affecting. the life of the nations. For
example, it decided the cases relating to maritime zones. Further, the court
condemned colonisation and reaffirmed the principle of self-determination as
provided under U.N. Charter.

Secondly, where no rule of international law existed, the court

evolved certain new principles. For instance, in Reparation case, the Court stated
that United Nations is an international person. The U.N.O. has been exercising
and enjoying functions and rights which can only be explained that it has
international personality and capacity to work on the international sphere. The

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U.N.O. can now bring claim in respect of injuries to its employees and agents
through the International Court of Justice.

In this way, the International Court of Justice has been able to make progressive
development of International Law in following ways: firstly, when there is no
International treaty or convention on a particular point in dispute, the court under
Article 38 of the Statute of the International Court of Justice, can apply general
principles of law recognised by the civilised States and thereby contribute to the
progressive development of International Law. Secondly, the International Court
of Justice clarified the vague rules of International Law. The court contributed
directly towards ensuring respect to International Law.

In view of above discussion and decisions, it becomes crystal clear that the
International Court of Justice has contributed to the development of International
Law in various ways and its role has been of the principal judicial organ of the
world community for deciding cases to be based on equity, justice, reason,
and common sense.

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Criticism of International Court of Justice:

The following points are common criticisms of the ICJ-

 The ICJ has been accused of being biased. Judges usually rule in favour of
states which their own country looks favourably upon. Bias also plays a great
role in voting for the President and Vice President of the bench.
 The ICJ can only rule on cases where both the states have given their consent.
Thus, even if there is a case where the authority of the ICJ is much needed,
the ICJ cannot do anything unless they get consent from the other states
involved.
 Only states can seek recourse under the ICJ, not organisations, private
enterprises or even individuals. Thus, in cases where minority groups are
being exploited by their state, the individuals of these minority communities
cannot seek recourse under the ICJ.
 Other International courts like the International Criminal Court are not under
the umbrella of the ICJ. Thus, conflicting opinions from various international
courts make it difficult for the international community to collectively enforce
peace.
 The ICJ does not enjoy the separation of powers and is sometimes at the mercy
of the Security Council. Permanent member states can veto attempts to enforce
the decision of the ICJ.

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 CONCLUSION

The International Court of Justice, right from its time of establishment, has
resolved countless conflicts and restored a sense of justice to the international
community through different methods and judgements. There is no doubt that the
ICJ emerged as a saviour to the legal rights of the international community after
two horrific world wars. Over time, ICJ has also adapted itself to the changing
domains of international law. More and more cases emerge from newer issues
pertaining to environmental law, human rights and so more. With all the changes,
it is certain that with interactions amongst states, conflict of opinions and views
shall always arise. However, every international conflict can be expressed in legal
conflicts including instances where the violations of the law are also justified in
legal terms. With ICJ as the central institution, the rule of law shall continue to
be the pillar of support that the international community needs to co-exist
peacefully. There exists criticisms that claim the existence of bias within ICJ.
Further instances like States representing the concerns and representing their
individuals concerns are allowed but there is no express mechanism for situations
wherein the State support for minorities or the grieved is absent. However, when
all ways fail before humanity and humans revert back to war-like mechanisms,
international law exists as a last possible resort in such situations. To achieve this,
the International Court of Justice is not to be under-estimated as not only the
Court carries significant weight of trust in the International community but also
has the power to bring about a change.

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 References

 https://academy4sc.org/video/international-court-of-justice-worlds-
highest-court/.
 https://blog.finology.in/Legal-news/landmark-cases-international-law.
 https://www.icj-cij.org/court.
 https://www.icj-cij.org/history

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