The International Court of Justice

Share & spread the love

Overview

It is well known that there is a hierarchy of courts at different levels (i.e. Local, State, National) in order to settle the disputes arising within their jurisdiction but what about the disputes that arise between different nations, so in order to resolve such a problem and promote the amicable settlement of disputes, a World Court (by the name ICJ) is established.

The main notion behind this is to contribute to world peace and harmony. It is based on the ideals of Article 33 of the UN Charter which lists the following methods of Pacific settlement of disputes between states. It includes: -Arbitration, Negotiation, Mediation, Conciliation, Judicial Decision, Enquiry, and Good offices.

Initially, the Permanent Court of International Justice was established on 16 December 1920 under the League of nations, it was fully operative until 1945, but when the league of nations is dissolved owing to its failure, the Permanent Court of Justice was also redesigned and was named as International Court of Justice it was formally established in San Francisco Conference and started its operations in 1946 itself.

Presently, it is one of the fundamental organs of the United Nations. Provisions of Chapter 14 (Article 92 to 96 of the UN Charter) deals with ICJ in detail. It is seated at Peace Palace in The Hague (Netherlands) but Article 22 of the Statute of ICJ empowers the court to hold its sessions elsewhere wherever the court considers desirable to do so. Notably, it is the only UN principal organ not situated in New York.

The court’s primary function is to settle disputes submitted by sovereign states in accordance with the principles of international law. There are also various occasions on which the court renders its advisory opinion on legal matters submitted by any of the UN bodies or specialized agencies, as the name suggests the opinion tendered by ICJ is not binding.

All the 193 member states of the UN are parties to the jurisdiction of the Court. But any state which does not have UN Membership can also become party to the Court’s statute by complying with the procedure stated in Article 93(UN Charter).

Article 93 (2) of the UN Charter states: “A State which is not a member of United Nations may become a party to a statute of ICJ on conditions to be determined by General Assembly upon recommendation of Security Council”.

When any state becomes a party to the court’s statute either by reason of its UN Membership or by following Article 93 procedure, it can submit any dispute to which it is the party for the consideration of the court. And the court after considering each and every fact passes an appropriate and holistic decision.

You might be thinking that what types of disputes are bought before ICJ. Basically, disputes over treaties, diplomatic relations, human rights violations, etc. are dealt with by ICJ. Since September 2022 about 184 cases are entered the General List of ICJ. And India is a party to the cases on 6 occasions.

English and French are considered the official languages for conducting the proceeding before the court. When the judgment is passed it is the responsibility of the Security Council to enforce the decision as per UN Charter.

However, if permanent members (i.e., U.S.A, U.K, France, Russia, China) of the Security Council are not satisfied with the decision they can veto any such ruling.

Composition of ICJ

The ICJ consists of 15 judges which are elected for a tenure of 9 years. However, as per the statute of ICJ, 1/3 of members (i.e., 5 judges) will retire every 3 years. The retiring judges are eligible for re-election.  The elections of judges of ICJ are held by General Assembly and Security Council independently. And a candidate who obtains a majority vote in both General Assembly and Security Council is declared elected.

For being eligible, a person must possess the qualification required for appointment to the highest judicial office in their country. And in order to bring transparency and remove biases in decisions, no 2 judges can have the same nationality.

Geographical Distribution of Judges

The judges are elected from different regions in order to ensure equitable representation:

  • 3 judges from Asia
  • 3 judges from Africa
  • 5 judges from Western Europe and other states
  • 2 judges from Latin America and the Caribbean
  • 2 judges from Eastern Europe

Judges of Indian Origin

  • Sir Benegal Rau (1952–1953)
  • Nagendra Singh (1985-1988)
  • Raghunand Swarup Pathak (1989–1991)
  • Dalveer Bhandari (2012-present)

Offices of the court

The court consists of-

  • President- Administrative head of the court elected for the period of 3 years.

Article 32 (Statute of ICJ) states: If the president of the court is a national of one party to a dispute, then he/she shall not exercise the function of presidency in respect of that case, in such a case Vice-President will proceed the case.

Current President-Joan E Donoghue, since 8th February 2021

  • Vice-President
  • Members (judges)
  • Ad hoc judges-Article 31(Statute of ICJ) states: If a party has no national judge on the court, it may appoint a person to sit as a judge for a temporary period (i.e for a particular case).
  • Registry

History

The first institution which was established for the settlement of international disputes was the Permanent Court of Arbitration (by 1st Hague Conference, 1899). This conference basically gives the structural framework for arbitral proceedings. As a result of this conference, the Permanent Court of Arbitration was established in 1900 and started functioning in 1902.

But there are various loopholes in the procedure so, in order to enhance the efficiency of the PCA, the 2nd Hague Conference was convened in 1907. At this conference US & its allies passed a Joint proposal for a permanent court but due to differences, it was not passed. But this conference influenced the establishment of the Central American Court of Justice.

When WW I broke out there was massive destruction which forced the nations to establish a platform for peaceful settlement of disputes. Ultimately, the League of Nations came into existence.

And Article 14 of League’s Covenant called for the establishment of PCIJ, which would be responsible for adjudicating any international dispute submitted to it by the contesting parties, as well as to provide an advisory opinion upon any dispute or question referred to it.

And in December 1920, the Statute of PCIJ was unanimously adopted, the statute clarified each and every procedure that the court is required to follow. It also stated the mechanism by which judges are to be elected. In its long tenure of about 25 years, PCIJ has rendered various landmark judgments and also helped in removing ambiguities in International law.

The emergence of WW II considerably weakened the position of the PCIJ. When the League of Nations was dissolved owing to its failure, the Permanent Court of Justice was also dissolved. The last session of PCIJ was held in October 1945 and in 1946 it was formally dissolved. And then after the International Court of Justice was established.

Jurisdiction

Jurisdiction means the power/authority of a court to take cognizance or action upon the dispute. In relation to ICJ the jurisdiction is worldwide (i.e., extends to its members). The jurisdiction of ICJ is divided into the following types-

  • In contention jurisdiction
  • Special agreement or treaty-based jurisdiction
  • Incidental jurisdiction
  • Advisory jurisdiction

Some Cases before ICJ

  • Kulbhushan Jadhav Case, 2017 (India vs. Pakistan)
  • Russian genocide & invasion over Ukraine, 2022 (Ukraine vs. Russian)
  • Maritime delimitation in the Indian Ocean, 2014 (Somalia vs. Kenya)
  • Applications of Convention on the elimination of all forms of Racial discrimination case, 2018 (Qatar vs. U.A.E)

References:

ICJ’s official website (www.icj-cij.org)

Britannica Encyclopedia (www.britannica.com)

Book- International Law and Human Rights (S.K Kapoor)

This article has been submitted by Vinamra Verma.


Attention all law students!

Are you tired of missing out on internship, job opportunities and law notes?

Well, fear no more! With 45,000+ students already on board, you don't want to be left behind. Be a part of the coolest legal community around!

Join our WhatsApp Groups (Click Here) and Telegram Channel (Click Here) and get instant notifications.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Upgrad