THE INTERNATIONAL COURT OF JUSTICE

 INTRODUCTION
The International Court of Justice, also known as the World Court, is the main judicial organ
of the UN. It was established in June 1945 by the Charter of the United Nations and began
work in April 1946.The seat of the Court is at the Peace Palace in The Hague (Netherlands).
Of the six principal organs of the United Nations, it is the only one not located in New York
(United States of America). The Court’s role is to settle, in accordance with international law,
legal disputes submitted to it by States and to give advisory opinions on legal questions
referred to it by authorized United Nations organs and specialized agencies. The Court
decides disputes between countries, based on the voluntary participation of the States
concerned. If a State agrees to participate in a proceeding, it is obligated to comply with the
Court’s decision.

The impetus to create a world court for the international community developed as a result of
the atmosphere engendered by the Hague Conferences of 1897 and 1907. The establishment
of the Permanent Court of Arbitration, although neither permanent nor, in fact, a court,
marked an important step forward in the consolidation of an international legal system.
The Covenant of the League of Nations called for the formulation of proposals for the
creation of a world court and in 1920 the Permanent Court of International Justice (PCIJ) was
created. It stimulated efforts to develop international arbitral mechanisms.

 COMPOSITION OF ICJ

The ICJ is composed of fifteen members:

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.

The members of the Court are elected by the General Assembly and Security Council (voting
separately) from a list of qualified persons drawn up by the national groups of the Permanent
Court of Arbitration, or by specially appointed national groups in the case of UN members
that are not represented in the PCA. This provision was inserted to restrict political pressures
in the selection of judges. The elections are staggered and take place once every three years,
with respect to five judges each time.

Criticism-

This process has attracted much criticism on the grounds of attendant politicization but in the
circumstances, it is difficult to see a way to avoid this completely. The opinions of individual
judges can be crucial, particularly in sensitive cases, and the alteration in the stance adopted
by the Court with regard to the Namibia case between 1966 and 1971 can be attributed in
large measure to changes in the composition of the Court that took place in the intervening
period. Candidates must obtain an absolute majority of votes in both the Assembly and the
Council, and no two successful applicants may be of the same nationality.

 JURISDICTION OF ICJ

The International Court is a judicial institution that decides cases on the basis of international
law as it exists at the date of the decision. It cannot formally create law as it is not a
legislative organ. The Court has emphasised that, ‘it states the existing law and does not
legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify
its scope and sometimes note its general trend.

It has been emphasised that the ‘function of the Court is to state the law’51 and it can only
decide on the basis of law.52 The issue of judicial function was examined in an important
joint declaration by seven judges in Serbia and Montenegro v. UK, one of the cases brought
by what was originally the Federal Republic of Yugoslavia against NATO countries arising
out of the Kosovo conflict in 1999.

 ARTICLE 34 of the Statute-

Article 34 of the Statute of the Court declares that only states may be parties in cases before
the Court. This is of far-reaching importance since it prohibits recourse to the Court by
private persons and international organizations, save in so far as some of the latter may be
able to obtain advisory opinions. The Court is open to all states that are parties to the Statute.
Article 93 of the UN Charter provides that all UN members are ipso facto parties to the
Statute of the ICJ, and that non-members of the UN may become a party to the Statute on
conditions determined by the General Assembly upon the recommendation of the Security
Council.

Only states may be parties in cases before the Court.

  Dispute should be there

 It should be Legal Dispute

ICJ rejected challenges against its jurisdiction in the Nicaragua case and the case between
Nicaragua and Honduras, where it also specified that any possible ‘political motivation’ of an
application is irrelevant for the discharge of its judicial function.

Article 36 of the Statute-

1. The jurisdiction of the Court comprises 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 Statute may at any time declare that they recognize as
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:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute a breach of an international
obligation ;

d. 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.

Article 36 is consistently founded on the principle of consent. Example In the Corfu

Channel (Preliminary Objections) case, the Court inferred consent from the unilateral
application of the plaintiff state (th eUnited Kingdom) coupled with subsequent letters from
the other party involved (Albania) intimating acceptance of the Court’s jurisdiction.
Thus no State can be compelled to accept the jurisdiction of the ICJ. Art. 33 para. 1 UN
Charter explicitly sets forth that the parties to any dispute have the right to resort to methods
of settlement ‘of their own choice’.

Jurisdiction Provisions-

1) Special Agreement- The Court has jurisdiction under article 36(1) of its Statute in all
cases referred to it by parties, and regarding all matters specially provided for in the UN
Charter or in treaties or conventions in force. As in the case of arbitration, parties may
refer a particular dispute to the ICJ by means of a special agreement, or compromis,
which will specify the terms of the dispute and the framework within which the Court is
to operate. This method was used in the Minquiers and Ecrehos case, and in a number
of others.
2) Matters provided for in treaties and conventions- Article 36, paragraph 1, of the
Statute also provides that the jurisdiction of the Court comprises all matters specially
provided for in treaties and conventions in force. Such matters are normally brought
before the Court by means of a written application instituting proceedings.
3) Compulsory jurisdiction in legal disputes- The Statute provides that a State may
recognize as compulsory, in relation to any other State accepting the same obligation, the
jurisdiction of the Court in legal disputes. Such cases are brought before the Court by
means of written applications.
4) Forum prorogatum- If a State has not recognized the jurisdiction of the Court at the
time when an application instituting proceedings is filed against it, that State has the
possibility of subsequently accepting such jurisdiction to enable the Court to entertain the
case: the Court thus has jurisdiction as of the date of acceptance under the forum
prorogatum rule.
5) The Court itself decides any questions concerning its jurisdiction- Article 36,
paragraph 6, of the Statute provides that in the event of a dispute as to whether the Court
has jurisdiction, the matter shall be settled by the decision of the Court.

Article 36(2)- This article has been of great importance in extending the jurisdiction of the
International Court. Article 36(2), the so-called ‘optional clause’, stipulates that:
The states parties to the present Statute may at any time declare that they recognise as
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:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation.
 ADVISORY JURISDICTION
 In addition to having the capacity to decide disputes between states, the ICJ may give
advisory opinions. Article 65 of the Statute declares that ‘the Court may give an
advisory opinion on any legal question at the request of whatever bodymay be
authorised by or in accordance with the Charter of the United Nations to make such a
request’, while article 96 of the Charter notes that as well as the General Assembly
and Security Council, other organs of the UN and specialised agencies where so
authorised by the Assembly may request such opinions on legal questions arising
within the scope of their activities.
 Since States alone are entitled to appear before the Court, public (governmental)
international organizations cannot be parties to a case before it. However, a special
procedure, the advisory procedure, is available to such organizations and to them
alone. This procedure is available to five United Nations organs, fifteen specialized
agencies.

 Contrary to judgments, and except in rare cases where it is expressly provided that
they shall have binding force, the Court’s advisory opinions are not binding. The
requesting organ, agency or organization remains free to decide, as it sees fit, what
effect to give to these opinions.

 Despite having no binding force, the Court’s advisory opinions nevertheless carry
great legal weight and moral authority. They are often an instrument of preventive
diplomacy and help to keep the peace. In their own way, advisory opinions also
contribute to the clarification and development of international law and thereby to the
strengthening of peaceful relations between States.
  Legality of the Threat or Use of Nuclear Weapons Adv Opinion.

Example-

In the Western Sahara case, the ICJ gave an advisory opinion as regards the nature of the
territory and the legal ties therewith of Morocco and Mauritania at the time of colonisation,
notwithstanding the objections of Spain, the administering power.

The Court declared that ‘the reply of the Court, itself an “organ of the United Nations”,
represents its participation in the activities of the organisation, and in principle should not be
refused’. Similarly, the Court emphasised in the Reservations to the Genocide Convention
case, that the object of advisory opinions was ‘to guide the United Nations in respectof its
own action’.

Proliferation of courts and tribunals- (BOOK me tha)

The proliferation of judicial organs on the international and regional level has been one
characteristic of recent decades. It has reflected the increasing scope and utilisation of
international law on the one hand and an increasing sense of the value of resolving disputes
by impartial third party mechanisms on the other. It is now possible to identify an accepted
international practice of turning to such mechanisms as a reasonably effective way of settling
differences in a manner that is reflective of the rule of law and the growth of international co-
operation. The importance of this practice to the evolution of international law is self-evident,
as the development of legal rules and the creation of legal institutions with accompanying
compulsory adjudication go hand in hand.

Role of the Court- (Additional)

 There are a variety of other issues currently facing the Court. As far as access to it is
concerned, it has, for example, been suggested that the power to request advisory
opinions should be given to the UN Secretary- General and to states and national
courts, while the possibility of permitting international organisations to become
parties to contentious proceedings has been raised.
 The Court possesses no express power of judicial review of UN activities, although it
is the principal judicial organ of the organisation and has in that capacity dealt on a
number of occasions with the meaning of UN resolutions and organs.362 In the
Lockerbie case,363 the Court was faced with a new issue, that of examining the
 relative status of treaty obligations and binding decisions adopted by the Security
Council
 The decisions and advisory opinions of the ICJ (and PCIJ before it) have played a
vital part in the evolution of international law. Further, the increasing number of
applications in recent years have emphasized that the Court is now playing amore
central role within the international legal system than thought possible two decades
ago.

 OTHER MODES OF DISPUTE RESOLUTION

 Diplomatic and adjudication: With wars leading to wide bloodshed and loss to
economies of the States involved in the conflict it became imperative to develop some
diplomatic and peaceful means of dispute resolution. This lead to development of
Peaceful methods of Dispute Settlement under International Law which with passage
of time became a fundamental limb of international relations. Chad and libya,
mavrommatis case

 Negotiation- This is regarded as the oldest and the simplest form of settling disputes.
When the disputant parties settle the dispute themselves by discussion or by adjusting
the disagreement, the process is called a negotiation. India and Sri Lanka had settled
their boundary dispute in the year 1974 by the negotiation method. In 1976, India and
Pakistan settled their pending boundary disputes in the Simla Conference through the
negotiation method. The Farraka Barrage gunfire issue, between India and
Bangladesh, was also settled with this method.

 Good office and mediation- Mediation and Good offices come into picture when
parties are not willing to go for the negotiation method or they fail to reach a state of
settlement through a healthy negotiation. A third person assists them in resolving their
legal matters. A famous example of mediation is when the Soviet Premier Kosygin
settled the dispute between India and Pakistan by signing the Tashkent Agreement in
1966.
 Inquiry- One of the most common obstacles that prevent the successful settlement of
disputes in International Law is the ascertainment of the facts, as it has been observed
for the years that different views are put forward by the disputant parties. A majority
of International disputes get stuck because of the unwillingness and inability of the
parties to agree to the facts.

 Regional arrangements: form of international institutions: AU, OAS, Arab

League, EU