Introduction and Historical Perspective of ICJ
International Court of justice – ICJ is a principal organ under International law, created to resolve the disputes between the states. It bears a great responsibility in resolving International disputes. International Court of Justice is the successor of Permanent Court of Justice.
The idea to create an International court to deal with International dispute first arose during the Hague Convention. After the First World War and creation of League of Nation, the idea was converted into reality and Permanent Court of International justice was established. The court came into operation in 1922.
The purpose to create International court was to settle the disputes between states and to establish peace globally. When there is a dispute between two nations, the difficulty arises with regards to the jurisdiction. To resolve this issue, the international court was established.
Permanent Court of International justice ceased functioning in the Second World War from the year 1940. There were some limitations in PCIJ, so it was dissolved in 1940. During the San Francisco Conference, a discussion was made where the members felt a need of International Tribunal to resolve international disputes. It was decided to create International Court of Justice in the place of Permanent Court of Justice. ICJ came into operation in 1945.
Composition of International Court of Justice
The International court of justice is composed of 15 judges and not more than one judge shall be elected from one state. The judges are elected for a period of nine years. The judges represent the legal system of the world.
Judges should be a person of high moral standard and should possess the qualification that is required in their respective countries for the appointment of highest judicial offices or jurisconsults of recognized competence in International Law. During the term of office, no judges should engage in any political or administrative functions or any other occupation of professional nature.
The President and Vice President of the court are elected by the court for a term of three years. The court is assisted by a Registry and headed by a Registrar. Elections are held in every three years for five vacancies. Election is held simultaneously both in General Assembly and in the Security Council. Voting in each is done independently. In order to get elected, candidate must obtain majority of votes from each forum.
The court can also establish chambers composed of three or more judges. Such Chambers were constituted upon the request of the parties. The court can also establish a special chamber for environmental matters. A judgment given by a chamber is considered as a judgment of the Court.
The statute provides that where there is a judge of the nationality of one of the parties is sitting on the bench, and then in order to maintain equality, the opposing party may choose an Ad hoc judge of his nationality. Each of the party may choose such a judge of their respective nationality if both of them do not have its national judge sitting on the bench. The judges so chosen have the same rights and duties as the members of the court during the proceeding.
Jurisdiction of ICJ
The International Court of Justice possesses two kinds of jurisdiction.
- Contentious Jurisdiction
- Advisory Jurisdiction
It provides that the court can decide the case with the consent of both the parties. Court cannot initiate any proceeding merely because one party has filed a case. The consent of both the parties is required to initiate a proceeding.
Contentious Jurisdiction is classified into three categories.
- Voluntary Jurisdiction
- Ad hoc Jurisdiction
- Compulsory jurisdiction
Voluntary Jurisdiction is that jurisdiction where the parties by virtue of an agreement or treaty between them decided that if any dispute arises, it should be referred to the Court for settlement.
Ad hoc Jurisdiction is that jurisdiction where parties approach to the court which has no jurisdiction in the case.
Compulsory Jurisdiction is that jurisdiction in which the court is entitled to take up the case without the consent of the parties.
It provides that the court has jurisdiction to give advisory opinion to the parties. The court only gives advice to the party. It does not require the consent of the party as no proceeding is initiated. The court gives advice when any International institute asked for the opinion of the court. The opinion is not binding on the parties.
Law Applied by the Court
The International Court of Justice decides the matters in accordance with the International Law. According to the statute, the court can apply;
- International Conventions which are recognized by the member states.
- International Custom.
- General principle of law recognized by civilized states.
- Judicial Decision and teaching of highly qualifies publicist of various nations.
- The court can also apply the principle of equity if the parties are agreed to it.
Enforcement of Judgment
International Court of Justice aims to resolve the dispute between nations. The state parties in case of any dispute approach to ICJ to resolve the matters. The judgment given by the court is binding on the parties.
Each member of the United Nation has to comply with the decision of the International Court of Justice in any case to which it is a party.
If any party fails to comply with the decision of the court, the other party may recourse to the Security Council. The Security Council may if it deems necessary can make recommendations or measures to be taken to give effect to the judgment.
Contribution of International Court of justice in International Law
International Court of Justice was established with a view to resolve international matters and to maintain international peace. Though the court cannot contribute directly towards the international law, it has contributed indirectly through the clarification and development of rules of the principle of International Law.
So, the court contributes to the international law in two ways;
- By settling the disputes
- By developing rules for International law
The court has contributed immensely towards the International law despite the fact that it cannot create any new law, the court can interpret, clarify, amend the rules of International law through its Judgments.
The decision of the court has also contributed in the way of guidelines to the states that they have to follow for their international conduct.
Landmark Judgments by ICJ
International Court of Justice has rendered some landmark judgments which have set guidelines for International law. The Court has played a vital role in developing laws against the use of force and to protect Human Rights.
Nicaragua vs. United States [1986 I.C.J. 14]
The case involved military and paramilitary activities carried out by United States against Nicaragua. Nicaragua has approached to the International Court of Justice against United States.
Nicaragua has alleged that in 1979 there government was replaced by a new government and US supported the new government initially but after that their attitude was changed. In 1981, US stopped its aid to Nicaragua and decided to plan and undertake activities against Nicaragua. Armed activities were carried out against the new government and Nicaragua alleged that US is the main culprit behind this activities because US is effectively in control of Contras. Nicaragua also alleged that some attacks against the new government were directly headed by US to destroy the new government. Nicaragua attack included the mining of Nicaragua ports, and other ports, oil installation and a naval base. Nicaragua alleged that aircrafts belonging to United States flew over Nicaragua territory to gather intelligence and to intimidate the population.
United States initially refused to accept the jurisdiction of ICJ over this issue and refused to be present at the proceeding. The United States however in a hearing stated that the attacks were in course of self – defense as guaranteed by Article 51 of UN Charter.
The court has investigated into the matter and held that US violated its customary international law obligation not to use force against any state when it directly attacked Nicaragua and the court also stated that the US could not justify its action on the basis of collective self-defense.
The court also found that the United States also carried out high altitude flight over Nicaragua territory and certain low altitude flights complained of as causing sonic booms. It held that a State’s sovereignty extends to its internal waters, territorial sea and air space above its territory. Extension from the territorial limit violates the Customary International Law.
Belgium vs. Senegal [ICJ GL No 144, ICGJ 437(ICJ 2012)]
This case was filed under the International Court of Justice against the judicial decision of Senegal which is a violation of the Convention against Torture and Inhuman Treatment.
The Former Dictator of Chad, Hissene Habre is accused of political killing and torture when he ruled Chad. After that, he fled to Senegal. Seven victims of his torture filed a criminal complaint against him in the Senegal Court where the court initially started the investigation but due to political interference, the court dismissed the case that it did not have jurisdiction over this case.
Other victims, including Belgium citizens filed a case in Belgium against Habre where Belgium Court has requested Senegal court for his extradition. Senegal court due to lack of jurisdiction referred the matter to African Union for a decision how Habre should be tried. AU asked Senegal to prosecute Habre and Senegal agreed to it but raised obstacle to obstacle in trial.
Belgium filed an application against Senegal in International Court of justice after Senegal failed to extradite Habre and continued to stall in the trial.
The International Court of Justice issued its ruling with the majority of judges finding Senegal in violation of the Convention against torture by failing to make inquiry in the case and by failing to submit the case to competent authorities for prosecution. The court finally held that Senegal must without any further delay submit the case of Hissene Habre to its competent authority for the purpose of prosecution if it does not extradite him.
International Court of Justice aims to resolve the issue between nations and to maintain peace in the world. In every country, there is a judicial system, an arbitration to resolve its matters within its territory. But when the dispute involves two countries or more than two countries then difficulty arise as which country has jurisdiction to deal with the matter and this constitutes another dispute. Therefore, to tackle with this difficulty, the International Court of Justice was created. Its purpose is to settle the disputes between countries who are members of the UN. Even non-member state can also appeal to ICJ. International Court of Justice has immensely contributed towards international law by not only resolving the disputes but it has also interpreted laws and given clarity to them through its judgments. ICJ has provided landmark judgments on various social issues in the world. ICJ, as a principal judicial organ has contributed a lot to maintaining peace in the world.
By – Anusha Vijayvargiya
New Law College, BVDU, Pune
- Public International Law and UNO – Dr. Jyoti Ratan and Dr Vijay Ratan
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