This article is scripted by Shruti Sharma BA.LLB of PDM University wrote this article during her internship in Le Droit India on the topic International Court of Justice.
The International Court of Justice: The International Court of Justice word is derived from the French language as Cour internationale de justice), also called the World Court.
- It is the only international court that adjudicates general disputes between nations and gives advisory opinions on international legal issues.
- It is one of the six organs of the United Nations
- It is located in The Hague, Netherlands.
- The International Court of Justice consists of a panel of 15 judges elected by the UN General Assembly and Security Council for nine-year terms.
- No more than one judge of each nationality may be represented in court at the same time, and judges collectively must reflect the principal civilizations and legal systems of the world.
- The International Court of Justice is the only principal UN organ not located in New York City.
- Its official working languages are English and French.
HISTORY OF FORMATION OF INTERNATIONAL COURT OF JUSTICE
The Second World War effectively put an end to the court, which held its last public session in December 1939 and issued its last orders in February 1940.
In 1942 the United States and the United Kingdom jointly declared support for establishing or re-establishing an international court after the war, and in 1943, the U.K. chaired a panel of jurists from around the world, the “Inter-Allied Committee”, to discuss the matter.
Its 1944 report recommended that:
- The statute of any new international court should be based on that of the PCIJ;
- The new court should retain an advisory jurisdiction;
- Acceptance of the new court’s jurisdiction should be voluntary;
- The court should deal only with judicial and not political matters
Several months later, a conference of the major Allied Powers—China, the USSR, the U.K., and the U.S.—issued a joint declaration recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security’’.
The following Allied conference at Dumbarton Oaks, in the United States, published a proposal in October 1944 that called for the establishment of an intergovernmental organization that would include an international court.
The meeting was subsequently convened in Washington, D.C., in April 1945, involving 44 jurists from around the world to draft a statute for the proposed court. The draft statute was substantially similar to that of the PCIJ, and it was questioned whether a new court should even be created.
During the San Francisco Conference, which took place from 25 April to 26 June 1945 and involved 50 countries, it was decided that an entirely new court should be established as a principal organ of the new United Nations.
The statute of this court would form an integral part of the United Nations Charter, which, to maintain continuity, expressly held that the Statute of the International Court of Justice (ICJ) was based upon that of the PCIJ.
Consequently, the PCIJ convened for the last time in October 1945 and resolved to transfer its archives to its successor, which would take its place at the Peace Palace. The judges of the PCIJ all resigned on 31 January 1946, with the election of the first members of the ICJ taking place the following February at the First Session of the United Nations General Assembly and Security Council.
In April 1946, the Permanent Court of Justice was formally dissolved, and the International Court of Justice, in its first meeting, was elected President José Gustavo Guerrero of El Salvador, who had served as the last president of the Permanent Court of Justice.
The court also appointed members of its Registry, mainly drawn from that of the PCIJ, and held an inaugural public sitting later that month.
The first case was submitted in May 1947 by the United Kingdom against Albania concerning incidents in the Corfu Channel.
The President and Vice-President are elected by the Members of the Court every three years by secret ballot.
The election is held on the date on which Members of the Court elected at a triennial election begin their terms of office or shortly thereafter.
An absolute majority is required and there are no conditions of nationality. The President and Vice-President may be re-elected.
The President presides at all meetings of the Court; he/she directs its work and supervises its administration, with the assistance of a Budgetary and Administrative Committee and various other committees, all composed of Members of the Court.
During judicial deliberations, the President has a casting vote in the event of votes being equally tied.
In The Hague, where he/she is obliged to reside, the President of the Court takes precedence over the doyen of the diplomatic corps.
The President receives a special supplementary allowance of US$25,000 per annum, in addition to his/her annual salary.
The Vice-President replaces the President in his/her absence, in the event of his/her inability to perform his/her duties, or in the event of a vacancy in the presidency. He/she receives a daily allowance for doing so. In the absence of the Vice-President, this role falls to the senior judge.
STRUCTURE OF THE INTERNATIONAL COURT OF JUSTICE
The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately.
To ensure a degree of continuity, one-third of the Court is elected every three years. Judges are eligible for re-election. Should a judge die or resign during his or her term of office, a special election is held as soon as possible to choose a judge to fill the unexpired part of the term.
All States parties to the Statute of the Court have the right to propose candidates. Such proposals are made not by the government of the State concerned, but by a group consisting of the members of the Permanent Court of Arbitration (see History) designated by that State, i.e. by the four jurists who can be called upon to serve as members of an arbitral tribunal under the Hague Conventions of 1899 and 1907. In the case of countries not participating in the Permanent Court of Arbitration, nominations are made by a group constituted in the same way. Each group can propose up to four candidates, no more than two of whom may be of its nationality, while the others may be from any country whatsoever, regardless of whether it is a party to the Statute or has declared that it accepts the compulsory jurisdiction of the ICJ. The names of candidates must be communicated to the Secretary-General of the United Nations within a time limit of his/her choosing.
Judges must be elected 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 Juris consults of recognized competence in international law.
The Court may not include more than one national of the same State. Moreover, the Court as a whole must represent the main forms of civilization and the principal legal systems of the world.
Once elected, a Member of the Court is a delegate neither of the government of his own country nor of that of any other State. Unlike most other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.
To guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfills the required conditions. This has never happened.
When engaged in the business of the Court, the Members of the Court enjoy privileges and immunities comparable with those of the head of a diplomatic mission. In The Hague, the President takes precedence over the doyen of the diplomatic corps, who is followed by the Vice-President, after which precedence alternates between judges and ambassadors. Each Member of the Court receives an annual salary consisting of a base salary (which, for 2023, amounts to US$191,263 and post adjustment, with a special supplementary allowance of US$25,000 for the President.
The post-adjustment multiplier changes every month and is dependent on the United Nations exchange rate between the United States dollar and the euro.
On leaving the Court, judges receive an annual pension which, after a nine-year term of office, is equal to half the annual base salary.
JURISDICTION OF INTERNATIONAL COURT OF JUSTICE
As stated in Article 93 of the UN Charter, all 193 UN members are automatically parties to the court’s statute. Non-UN members may also become parties to the court’s statute under the Article 93(2) procedure, which was used by Switzerland in 1948 and Nauru in 1988, before either joining the UN. Once a state is a party to the court’s statute, it is entitled to participate in cases before the court. However, being a party to the statute does not automatically give the court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the three types of ICJ cases: contentious issues, incidental jurisdiction, and advisory opinions.
- Contentious issues
Duration: 3 minutes and 8 seconds.First gathering after the Second World War, Dutch newsreel from 1946
In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases; individuals, corporations, parts of a federal state, NGOs, UN organs, and self-determination groups are excluded from direct participation, although the court may receive information from public international organizations. However, this does not preclude non-state interests from being the subject of proceedings; for example, a state may bring a case on behalf of one of its nationals or corporations, such as in matters concerning diplomatic protection.
Jurisdiction is often a crucial question for the court in contentious cases. The key principle is that the ICJ has jurisdiction only based on consent. Under Article 36, there are four foundations for the court’s jurisdiction:
- Compromise or “special agreement”, in which parties provide explicit consent to the court’s jurisdiction by referring cases to it. While not true compulsory jurisdiction, this is perhaps the most effective jurisdictional basis.
- Compromissory clauses in a binding treaty. Most modern treaties contain such clauses to provide for dispute resolution by the ICJ.
- Optional clause declarations accepting the court’s jurisdiction. Also known as Article 36(2) jurisdiction, it is sometimes misleadingly labeled “compulsory”, though such declarations are voluntary.
- Article 36(5) provides for jurisdiction based on declarations made under the Statute of the Permanent Court of International Justice. Article 37 similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ.
Additionally, the court may have jurisdiction based on tacit consent (forum prorogation). In the absence of clear jurisdiction under Article 36, jurisdiction is established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. This arose in the 1949 Corfu Channel Case (U.K. v. Albania), in which the court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction.
- Incidental jurisdiction
Until rendering a final judgment, the court has the competence to order interim measures for the protection of the rights of a party to a dispute. One or both parties to a dispute may apply the ICJ for issuing interim measures. In the Frontier Dispute Case, both parties to the dispute, Burkina Faso and Mali, applied to the court to indicate interim measures. Incidental jurisdiction of the court derives from the Article 41 of its Statute. Similar to the final judgment, the order for interim measures of the court is binding on state parties to the dispute. The ICJ has the competence to indicate interim measures only if the prima facie jurisdiction is satisfied.
- Advisory opinion
An advisory opinion is a function of the court open only to specified United Nations bodies and agencies. The UN Charter grants the General Assembly or the Security Council the power to request the court to issue an advisory opinion on any legal question. Organs of the UN other than the General Assembly or the Security Council require the General Assembly’s authorization to request an advisory opinion of the ICJ.
In principle, the court’s advisory opinions are only consultative but they are influential and widely respected. Certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, but inherently they are non-binding under the Statute of the court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the court’s authoritative views on important issues of international law. In arriving at them, the court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states.
POPULAR JUDGEMENTS OF THE INTERNATIONAL COURT OF JUSTICE
ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE (UKRAINE v. RUSSIAN FEDERATION: 32 STATES INTERVENING)
General background Application filed by Ukraine on 26 February 2022 Article IX of Genocide Convention invoked as basis of jurisdiction
- Found that Russia’s failure to investigate facts relating to individuals who had allegedly committed an offense in violation of Article 2 ICSFT violated Article 9(1) of that Convention.
- Rejected all other claims made by Ukraine with ICSFT.
- Found that Russia violated its obligations under the 2017 Order of the Court with limitations on the Mejlis and its failure to refrain from action that might aggravate or extend the Parties’ dispute.
- Rejected all other claims made by Ukraine with the 2017 Order.
Kulbhushan Jadhav Case
Kulbhushan Jadhav, an Indian naval officer, was arrested in March 2016 by Pakistani security forces in Balochistan province after he reportedly entered from Iran.
- He was sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017.
- On May 9, 2018, ICJ stayed his death sentence after India had moved a petition before the UN body to seek justice for him, alleging violation of the Vienna Convention on Consular Relations by Pakistan.
- In February 2019, India said Pakistan’s continued custody of Indian national Kulbhushan Jadhav without any consular access should be declared “unlawful” as it was an egregious violation of the Vienna Convention.
- In 2019, the ICJ directed Pakistan to review the conviction order of Kulbhushan Jadhav and, until then, put his death sentence on hold. ICJ also asked Islamabad to allow New Delhi consular access at the earliest. This is a major diplomatic and legal victory for India in the Jadhav case.
- In 2019, Pakistan granted consular access to Jadhav in line with the ICJ ruling.
Article 33 of the United Nations Charter lists the following methods for the pacific settlement of disputes between States: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, and resort to regional agencies or arrangements, to which should also be added good offices. Some of these methods involve the services of third parties. For example, mediation places the parties to a dispute in a position in which they can resolve their dispute thanks to the intervention of a third party. Arbitration goes further, in the sense that the dispute is submitted to the decision or award of an impartial third party so that a binding settlement can be achieved. The same is true of judicial settlement (the method applied by the International Court of Justice), except that a court is subject to stricter rules than an arbitral tribunal, particularly in procedural matters.