January 18, 2021

International Court of Justice

International law

Introduction- What is International Court of Justice (ICJ)?

International Court of Justice (ICJ) also known as World Court is the principal judicial organ of United Nation (UN). It is among one of the Six Principal Organs of United Nation. ICJ was established in year 1945 and began its operation in April, 1946. The court has its seat in The Hague, Netherlands. International Court of Justice is the successor of Permanent Court of International Justice (PCIJ). Principal Court of Justice dissolved in 1946 which was established by the league of nation in 1920. When second war came to end, both the league and PCIJ were succeeded by the United Nation and ICJ, respectively.

International Court of Justice is the only principal organ among the six principal organs of United Nations which is not located in New York (United States of America). International Courts of Justice operates on the basis of International Laws.

The primary function of the court is to pass judgements upon the disputes between States. If the state does not consent to an action, it can not be sued before the International Court of Justice.

Formation of International Court of Justice:

International Court of Justice was founded on 26 June 1945, at San Francisco, California, United States. It is the successor of Permanent Court of International Justice (PCIJ). As it is said that the heavy bloodshed because of First World War lead to the formation of League of Nations, established under the Paris Peace Conference of 1919 which emerged as the first worldwide intergovernmental organization which aimed to maintain peace and security.

In 1920 the League of nation unanimously adopted the statue of the Permanent Court of International Justice. Unlike the ICJ, the PCIJ was neither the part of League of Nations nor the member of the League of Nation automatically a party to its statute.

In 1933, due to peak in international tension between various countries, the PCIJ began to decline in performing its activities, subsequently with the Second World War it put an end to its functioning. PCIJ held its last order on February 1940.

In 1942, the United States of America and United Kingdom jointly supported for re-establishment of a worldwide international justice platform.

In1943, United Kingdom chaired the panel of jurists from all over the world named – “Inter-Allied Committee”, to discuss the same matter of establishment of International Court.

In 1944 reports, the panel recommended following points:

1. The Court is supposed to deal only with the judicial matter and should not deal with the political matter.

2. The statute of establishing worldwide International court should be based on the statute of Permanent Court of International Justice.

3. The acceptance to the jurisdiction of new International Court should be voluntary.

4. The new International court should retain an advisory committee.

With more conferences and decision, consequently the Permanent Court of International Justice convened for the last time in October 1945. All the judges of PCIJ resigned on 31st January, 1946 and PCIJ formally dissolved in April, 1946.

The firsts of International Court of Justice:

  • The election of first members of the International Court of Justice took place on February, 1946.
  • The first elected president of International Court of Justice was José Gustavo Guerrero of El Salvador. He was also the last president of Permanent Court of International Justice.
  • The first case of International Court of Justice was submitted in May 1947.
  • The first nation to submit the case was United Kingdom against Albania concerned to the incidents of the Corfu Channel.

Power and Function:

The International Court of Justice is composed of 15 judges, elected for the term of 9 years by United Nations General Assembly and the Security Council. The process is assisted by a registry and its administrative organ. The official Language of ICJ are English and French.

It has following two function:

1. ICJ settles the legal disputes submitted by States, in accordance with International Law.

2.ICJ advises on the legal questions referred to it by authorized UN organs and other specialized agencies.

Current Composition of the Court:

Hon’ble Justice Abdulqawi Yusuf is the president of International Court of Justice since 6th day of February 2018. His tenure with the leading position will end on 5th day of February 2021. Hon’ble Jurist Xue Hanqin is the Vice President of International Court of Justice with same tenure as of the President of ICJ.

Jurisdiction:

All the member of United Nations are automatically parties to the statute of International Court of Justice. This rule is discussed in Article 93 of the United Nation Charter. Countries which are not a member of United Nation can also become parties to the statute of International Court of Justice under the procedure mentioned on Article 93 (2) of United Nation Charter.[1]

The history has the living example for the same: Switzerland was not the member of United Nation so it used the procedure under Article 93 (2) of United Nation Charter to become a party to the statute of International Court of Justice. When a state becomes the party to the Court’s Statute, the state gets entitled to participate in cases before the court, but, being a party to the statute of the court does not automatically give the court jurisdiction over disputes involving those parties.

There are three types of ICJ cases in which the issue of Jurisdiction is considered:

1. Contentious Issues-

States are the only party in Contentious cases. No Corporation, Individuals or Non-Governmental Organizations (NGOs) etc can be included as a party in contentious cases. International Court of Justice gives a binding ruling between the concerned states which agree to the ruling of the court.

2. Incidental Jurisdiction-

The court is entitled to deliver interim measure for protection of the rights of parties concerned in a dispute until the final judgment is held. Incidental Jurisdiction of the court is discussed on article 14 of the statute of the court.

3. Advisory Opinions-

Advisory Opinions is that function of the court which is open only to some particular United Nation bodies and agencies. The United Nation Charter grants a power to General Assembly or the Security Council in which it can request the court to issue an advisory opinion on any legal question, but the other organ of United Nation do not have this power and they may not request for an advisory opinion. According to the principle, the advisory opinions of the courts are only for consultative purpose but actually they are highly influential and widely respected.

Do International Courts of Justice laids down binding decision?

A. This is the very frequently arising doubt in mind of most of the people. This aspect is discussed in Article 94 of United Nation Charter which states that, The Judgements which are delivered in the disputes between states by International Courts of Justice are binding to the parties concerned. However, There is no mentioning of enforcement by the court to its decisions which shows that the decision laid by the courts are binding but the court cannot enforce it decision.

Article 94 also states that:

“If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment”[2]

Conclusion:

International Court of Justice plays a superior role to dissolve the dispute arising between the states and helps to maintain peace and harmony around the world. Though the seat of the court is at The Hague, Netherland, but the sessions can be held wherever the court considers to do so.

The Court applies the international Law which is specifically summarized in Article 38 of the International Court of Justice Statute. The court also applies the international custom, international convention and the principle of justice and equity.

The International Court of Justice has also the power to make its own rules and regulation for smooth working. The procedure which are to be followed by the court are set out in the Rules of Court of the International Court of Justice 1978 (as amended on 29 September 2005).

References


[1] Article 93 of UN Charter.

[2] https://www.britannica.com/topic/International-Court-of-Justice


Author Details: Gourav Mundra (Hidayatullah National Law University)

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