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From time immemorial mankind has been endeavoring to maintain peace and justice in the world. This dream of an ideal world was pursued by many freedom fighters and other officials. Many attempts have been made to hold up structures denoting the significance of the term ‘justice’ and ensuring its true implementation. Few among them are the League of Nations, United Nations, International Criminal Court, World Health Organization. The effigy of justice explained in this article is the International Court of Justice. The successor of the Permanent Court of International Justice (PCIJ), this association mainly deals with the international issues requiring judicial settlement. The word itself suggests that the expectation from such a court is it to be wholly at the service of the international community without being inclined towards any particular sect or community.
It was established in the hope that the nations, in times of a legal battle, resolve to this institute to attain an equitable conclusion through an amicable procedure. Amid the serious tension growing among different nations, the functioning of the International Court of Justice secures the peaceful settlement of the international disputes and fuels the implementation of legal doctrine. The cases entertained here are considered to be sources of international law in some way and elucidate the provisions of the Statute of the ICJ and instruments like the marine law, domestic relations, etc. This article encloses the formation, powers and functions, jurisdiction and the feasibility of the binding force of the International Court of Justice.
Formation of The ICJ
International Court of Justice, French ‘Cour Internationale de Justice’ is the principal judicial organ of the United Nations. Established in 1945, the groundwork for the establishment of the ICJ is very vast and comprehensive. The system of arbitration and negotiation date way back from the emergence of courts. The system of concluding legal disputes in a peaceful manner through a permanent bench of judges applying strict judicial provisions was not known. The Hague Peace Conference of 1899 was the spark generating a fire among the officials to establish a permanent instrument designed to deal with the settlement of international issues through arbitration. This gave birth to the machinery called the Permanent Court of Arbitration (PCA) in 1900. But the method of arbitration was considered to be too specific in its working. The Conference wanted a structure with a jurisdiction more general than the PCA.
It was in Article 14 of the Covenant of the League of Nations that the Council of the League was given the responsibility to prepare the blueprint of the Permanent Court of International Justice. This time, the institute was not only subjected to the hearing and settlement of cases of international character, but also lay down advisory opinion about any case or question introduced to it by the Assembly of the League of Nations. After the adoption of the Statute in December 1920, in September 1921, most of the member States officially signed a protocol ratifying the Statute, bringing it into force. The permanent seat of the Court was in The Hague.
Notwithstanding the fact that the PCIJ paved solutions for many insurmountable problems, like the election of the judges for the tribunals, there was a deterioration in the functioning of the Court. It organized its last sitting on 4th December, 1939. In the absence of a structure guarding international peace and security, Nations felt the need to fill this void. As a result, the Four Powers i.e., China, the USSR, the United Kingdom and the United States issued a joint declaration recognizing the urgent need. This declaration led to the publication of proposals at Dumbarton Oaks for the establishment of a general international organization, comprising an international court of justice. The San Francisco Conference adopted the draft Statute of the International Court of Justice, and commanded for the establishment of a new court which would be on equal footing with the other organs of the United Nations such as the General Assembly, the Security Council, etc. The Statute of the new court was based upon that of the PCIJ. Hence, the Statute of the International Court of Justice was formed in June, 1945 and the ICJ was established in 1946.
Powers and functions of the ICJ
Article 2 of the International Court’s Statute states the Bench must be “composed of a body of independent judges, 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 term of the judges is 9 years and there are 15 judges on the bench in total. For every 3 years, elections for the are held for one third of the fifteen seats (i.e. 5seats). All members of the International Court should be from different countries. There is no provision prohibiting the re- election of the judges. All the state parties to the court statute possess the right to propose the candidates. The governments of the states, party to the statute of the court, do not propose the candidates. The power is vested in the group consisting of the members of the Permanent Court of Arbitration appointed by the respective state. The group of members of the permeant Court of Arbitration consists of four jurists who can be called upon to serve as a member of an arbitral tribunal under The Hague Conventions 1899 and 1907.
The members of the United Nations General Assembly and United Nations Security Council elect the judges of the International Court. The two councils seat independently of each other. Only by a majority in both of the organs and the meeting of the qualifications mentioned in Article 2 of the International Court’s Statute ensures the elevation of the candidate to Judge. Once elected, the Members of the International Court do not represent their respective countries or governments and are independent magistrates. They make a solemn declaration to exercise their powers conscientiously and impartially.
To maintain the geographical balance of composition of members of the court, and to ensure no particular region has a higher number of members there are member seats allotted to the region. More specifically, the West Europe and Western nations, typically the members of the NATO (North Atlantic Treaty Organization) have 5 judges. Eastern Europe, South America and the Caribbean countries have 2 members respectively. Asian and African Nations countries have 3 members each to represent their region in the composition of the members of the court. While there is no statute or article stating so, each permanent member country of the UN Security Council has a member from their nation. When two parties have a dispute and they do not have a member from their nation, both the parties are eligible to appoint one ad hoc judge each. The ad-hoc judge can be of any nationality.
The election for the office of the president and vice president of the Court is held every three years. The president is a member of every bench the court sits in and he/she has a wide range of duties and powers conferred upon. Th president directs and supervises the administration of the International Court. Each year, the president is called upon to give a report to the United Nations General Assembly on the activities of the court.
The Judicial, Diplomatic and Administrative deliberations and actions are supervised by the Registrar of the Court. She/he is the head of the court secretariat. The elections for the office of the Registrar is held every 7 years and is elected by the United Nations General Assembly. The International Court of Justice is a tool used by the United Nations to keep, promote and restore world peace. To achieve these goals, the court regularly hosts visits of head of states and dignitaries, which are supervised by the registrar.
The International Court of Justice acts as a world court. The nature of its jurisdiction is three-fold.
- Contentious Jurisdiction – The consent of both the parties is a prerequisite for this form of jurisdiction. In the Nicaragua case, the court held that in contentious matters the consent of the parties is the basis of the court’s jurisdiction. Nevertheless, the consent would not have a particular form and the court, in some cases, will deduce it from the conduct of the state parties. Apart from this, the court also holds the jurisdiction over the interpretation of the provisions of the agreements signed between nations as treaties or bilateral agreements.
- Compulsory Jurisdiction – Article 36(2) of the Statute of the ICJ provides it with the compulsory jurisdiction over the state parties under the following conditions:
- Matter regarding international law
- Interpretation of a treaty
- Existence of any international obligation
- Degree and nature of damages for the breach of the international obligation
- Advisory Jurisdiction – This form of jurisdiction is provided to all the essential organs of the U.N. and any member state as the provided case. Presently, this could be seen in the case of Israel and the wall built by it for protection from terrorists. It has resumed the construction as the judgement is not binding in nature.
Binding force of the decisions
Article 94 of the United Nations Charter provides that “each member of the United Nations comply with the decision of (the court) in any case to which it is a party. Hence, the decisions of the court are binding. Moreover, there is no alternative of an appeal. If there is a dispute regarding the interpretation of any law, the only solution for the party is to request for a revised interpretation. In case any fact, previously unknown, emerges, either party may content for a revised judgement.
The decisions are virtually implemented and if it is otherwise, the violated state may, under Article 94 of the Charter of the United Nations, approach the Security Council and take measures and recommendations. This article is rarely invoked, since the moral and ethical high position the court maintains is respected over the world. To ensure the same, the Court strives to keep its decisions unbiased and skewed to the minimal.
The role of the International Court is to provide solutions and answers to various organs and agencies of the United Nations. Since its establishment, majority of the advisory oriented questions came from the United Nations General Assembly. These legal opinions and solutions are not binding and are advisory in nature.
The International Court of Justice performs the task of delivering international justice in the name of the UN. The court has been referred to many a times in case of environmental issues, mainly concerned with the harm of transboundary. In case of advisory opinion, the court leaves its mark by analyzing the case and bringing out the best possible solution for it. This can be seen through the fact that although the decision is not binding, yet it’s agreed upon by the parties. The bigger picture here shows us that the court not only strengthens the international law and backs it up, but also contributes to its growth.
Thus, it must be viewed and treated as a general machinery for maintaining peace and security. The achievements of the court and its flawless working mirrors the rigid working of the United Nations and establishes its authority in the eyes of the nations. As comprehended above, the powers and functions of the court works according to a solid structure and a rigid procedure. The selection of the judges is made precise to elect the ones experienced and skilled in their field. This institute of righteousness has walked a long path in providing justice in the international world. After spending years of improvement in its provisions, the makers of the Statute have presented the world with the most suitable machinery for justice. Its high time that nations adhere to its working and appreciate its existence.
Author: Kirti Sharma from Hidayatullah National Law University, Raipur.
Editor: Akshat Mehta from Institute of Law, Nirma University.