The ICJ: A Beacon of Global Justice

The International Court of Justice (ICJ): A Beacon of Global Justice

Introduction:

The International Court of Justice is an organ of the United Nations inasmuch as its Statute forms an integral part of the Charter of the U.N.

The result is that all the members of the United Nations are ipso facto parties to the Statute. In this sense only it differs from the Permanent Court of International Justice inasmuch as the latter was legally not an organ of the League of Nations and its Statute constituted a separate international agreement different from the Covenant. The Statute is almost a literal copy of the Statute of the Permanent Court of International Justice. It was Established in 1945, the ICJ is seated in The Hague, Netherlands, and serves as a forum for resolving legal disputes between states. 

This article provides an overview of the ICJ, its structure, jurisdiction, and a detailed analysis of notable cases it has decided, showcasing its indispensable contribution to the development of international law and the promotion of global peace and justice.

Brief History of The International Court of Justice

The Second World War interrupted the work of the Permanent Court of International Justice, mainly due to the invasion of Holand by Germany, but its work in the period between the two wars raised a new vista of hope in its capacity to develop International Law and to achieve pacific settlement of disputes. Its judgments bear eloquent testimony to its sincere efforts in easing international tension by elucidating thorny questions of International Law. The Permanent Court of International Justice was finally dissolved by the final Assembly of the League of Nations in April 1946. Prior to this, the Charter of the United Nations had already provided for the establishment of the International Court of Justice as one of the principal organs of the United Nations. The present Court met for the first time at The Hague on April 3, 1946. 

Article 92 of the Charter specifically provides that the International Court of Justice shall be the principal judicial organ of the U.N. which shall function m accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice.

You may also read The International Criminal Court: History and Creation

Organization of The International Court of Justice

The Jurisdictions of The ICJ

The ICJ has two types of jurisdiction: contentious cases and advisory opinions. In contentious cases, states bring disputes before the Court voluntarily by accepting its jurisdiction or through special agreements. The Court's decisions in contentious cases are binding and final. Advisory opinions, on the other hand, are given on legal questions referred by UN organs and specialized agencies. While advisory opinions are not binding, they carry significant weight in guiding the actions of the requesting entities.

The Court exercises jurisdiction over States which are parties to the Statute and over other States who deposit with the Court’s Registrar a declaration signifying their acceptance of the Court’s jurisdiction in accordance with the Charter and Statute and Rules of the Court, undertaking to comply in good faith with the Court’s decisions and accepting the obligations under Article 94 of the Charter. Article 94 of the United Nations Charter reads thus: 

“Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” 

The jurisdiction of the Court is divided into three parts, viz.,

• (1) voluntary;
• (2) optional compulsory or obligatory; and
• (3) advisory.

(a) Voluntary Jurisdiction 

Article 36 of the Statute of the Court provides that its jurisdiction comprises all ¢ases which the parties refer to the Court by agreement. The agreement to refer the dispute may be made by both the parties or one party only may refer the matter to the Court and the other party may signify his assent to the reference. 

(b) Optional Compulsory and Obligatory Jurisdiction 

Paragraph 2 of Article 36 provides that the States, who are parties to the present Statute, may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: 

• (a) the international treaty, 
• (b) any question of International Law, 
• (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and 
• (d) the nature and extent of the reparation to be made for the breach of an international obligation. 

The declaration referred to above made by the States provides for compulsory jurisdiction by agreement, in as much as the Court can exercise jurisdiction only when both parties to the dispute have made the declaration as provided in paragraph 2 of Article 36. Oppenheim, therefore, terms this jurisdiction as optional and compulsory. 

The Statute provides that declarations made under the old optional clause in the Statute of the Permanent Court of International Justice shall be deemed to be acceptance of the compulsory jurisdiction of the present Court. At the time of the formation of the present Court, the declarations of 17 States were still in force, which were transferred to it. Most of the declarations are subject to a condition of reciprocity or contain some reservations. 

The Court has also compulsory or obligatory jurisdiction where the parties concerned are bound by a treaty convention under which they agreed to refer the matter to a tribunal to have been instituted by the League of Nations or to the Permanent Court of International Justice and by virtue of Article 37 of the Statute such matters are automatically referred to the International Court of Justice. 

(c) Advisory Jurisdiction 

The Court may also act as an adviser on points of law referred to it by the Security Council or the General Assembly. (Art. 65). The other organs of the United Nations and the Specialised Agencies, when empowered by the General Assembly, can also ask for advisory opinions on legal questions. The relevant Article on this point is Article 96 of the Charter, which reads thus: - 

• The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 
• Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

Most of the agreements that enable certain specialized agencies to work in close contact with the United Nations contain provisions that authorize these agencies to request advisory opinions of the International Court of Justice on legal questions arising within the scope of their activities. In the matters, the advisory jurisdiction of the Court has been invoked: 

(a) Admission of a state to membership in the United Nations 

During 1946 and 1947, many States were refused admission to the membership of the United Nations mostly on account of the use of veto by the Soviet Union in the Security Council. In the case of the ex-enemy States of Eastern Europe Soviet Russia suggested that she would refrain from using her veto if other members of the Council allowed the applications of those States which had the support of the Soviet Government. The General Assembly referred to the Security Council on November 17, 1947, the question of whether a member of the United Nations called upon to vote on the admission of a State to membership in the United Nations, could or could not make its consent to the "admission dependent on the admission of other States to membership in the United Nations. The Court by nine votes to six answered the question in the negative.

(b) Competence of the General Assembly for the Admission of a State to the United Nations. 

On November 22, 1949, the General Assembly adopted a resolution asking the International Court of Justice to give its advisory opinion on the question of whether the General Assembly could by its own decision admit a State to the membership of the United Nations in case the Security Council failed to make the recommendation.

The Court by 12 votes to 2 answered the question in the negative. 

(c) Reparation for injuries suffered in the service of the United Nations 

The United Nations Mediator in Palestine, Count Folke Bernadotte, while serving as the head of the truce team, was assassinated on September 17, 1948. The United Nations General Assembly thereupon submitted to the International Court of Justice for an advisory opinion on the question of whether in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State has or has not the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused

• (a) the United Nations, and
• (b) to the victim or to persons entitled through him?

The Court gave an affirmative answer to both parts of the question. 

Immunities of The Judges 

The members of the Court, when engaged in the business of the Court, enjoy diplomatic privileges and immunities. The agents, counsel, and advocates of parties before the Court also enjoy the privileges and immunities necessary for the independent exercise of their duties. The salaries, allowances, and compensation of the members of the Court and the Registrar are free of all taxation. 

The Law to be Applied by The Court 

Article 38 of the Statute provides that the International Court of Justice, whose function is to decide in accordance with International Law such disputes as are submitted to it, shall apply:  

• (a) international conventions, whether general or particular establishing rules expressly recognized by the contesting States; 
• (b) international custom, as evidence of a general practice accepted as law; 
• (c) the general principles of law recognized by civilized nations; 
• (d) subject to the provisions of Article 59, judicial decisions, and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 

According to Article 59 of the Statute, the decision of the Court has no binding force except between the parties and in respect of that particular case. 

The procedure of The Court 

Cases are brought before the Court either by a notification of the special agreement or by a written application addressed to the Registrar. The full Court sits for the decision of a dispute unless otherwise provided in the Statute. A quorum of nine Judges constitutes the Court. All questions, including the judgment, are decided by the majority. In the event of an equality of votes, the President or the Judge who acts in his Place has a casting vote. The judgment is final and without appeal. The judgment may be revised by the Court only upon the discovery of some fact of such a nature as to be a decisive factor, which factor was when the judgment was given, unknown to the Court and also to the party claiming revision and provided such ignorance was not due to negligence. Reasons are given for the judgment. As stated above, judgments of the Court are not legally binding in subsequent cases and each judgment stands on its own merits. The Court can with impunity disregard its own previous decisions if it thinks fit to do so. The official languages of the Court are French and English, but the Court can authorize the use of another language also.

The procedure with regard to the hearing of cases consists of two parts, viz., written and oral. The written proceedings consist of the communication to the Court and of the presentation of written cases and counter-cases along with papers and documents filed in support of the same. The oral proceedings consist of a hearing by the Court of witnesses, experts, agents, counsel, and advocates. 

Interim or Provisional Measures 

Article 41 of the Statute of the Court provides for provisional measures which the Court might indicate pending the decision of the dispute. It reads: 

“The Court shall have the power to indicate if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” 

Execution of Judicial Decisions

This brings us to the question of the execution of the decisions of the International Court of Justice. The Statute of the Court makes no provision for the enforcement of judicial decisions. All that Article 94 of the Charter of the United Nations provides is 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.” 

Cases Before the International Court of Justice

(1)  Haya Dela Torre’s Case 

Victor Raul Haya de la Torre, a Peruvian national and a political leader accused of having instigated a military rebellion, was granted asylum in the Colombian Embassy in Lima. On the matter being referred to the International Court of Justice, the Court observed that although the Havana Convention expressly prescribed the surrender of common criminals to the local authorities no obligation of the kind existed in regard to political offenders. If, however, reiterated its earlier view that asylum had been irregularly granted and that, although on this ground Peru was entitled to demand its termination, Colombia was not bound to surrender the refugee. 

(2) Anglo-Norwegian Fisheries Case 

A Royal decree defining precisely the extent of the zone reserved for Norwegian fishermen on that part of the coast which extended from the Finish frontier to a point on the southern side of the opening of the Vestfjord was promulgated on the 12th July 1935. The Government of the United Kingdom applied to the International Court of Justice on the 28th of September 1949, for declaring the principles of International Law which could be applied in defining baselines and by reference to which the Government of Norway was entitled to delimit a fisheries zone so as to reserve it exclusively for its own nationals, the Court held that the method employed for the delimitation of the fisheries zone by the Royal Norwegian Decree of the 12th July, 1935, was not contrary to International Law and that the baselines fixed by the said Decree in the application of this method were not contrary to International Law. The Court further held that Norway like all other States was entitled to determine not only the breadth of her territorial sea but also the manner in which it was to be reckoned in accordance with the general principles of the existing law of nations.

(3) Case Concerning the Rights of Nationals of The United States of America in Morocco 

On the 28h October 1950, the French Government sought a declaration before the International Court of Justice that the nationals of the United States in Morocco were not entitled to any preferential treatment and were subject to the laws and regulations in force in Morocco, in particular, those relating to imports not involving an official allocation of currency. 

The Government of the United States of America raised a preliminary objection that the provisions of the Residential Decree of December 30, 1948, if applied to United States citizens, violated International Law. The Court unanimously held that the Residential Decree was discriminatory in its nature as it exempted France from the control of imports without allocation of currency and subjected the United States to such control. The rights which were conferred on the United States by the Act of Algeciras could not be taken away by the Residential Decree of December 30, 1948.

(4) Nuclear Weapons Advisory Opinion (1996):

The General Assembly sought the ICJ's opinion on the legality of the threat or use of nuclear weapons. The Court concluded that while the use of nuclear weapons may be lawful under exceptional circumstances, states must abide by the principles of proportionality and necessity. The opinion highlighted the importance of disarmament and the obligation to negotiate in good faith toward nuclear disarmament.

(5) the Rohingya Genocide

The Rohingya Genocide refers to the systematic persecution of Rohingya Muslims by the Myanmar government and the Buddhist community. Thousands of Rohingya were killed, while others faced displacement, destruction of their homes, and widespread human rights abuses, including sexual violence. The Gambia brought a case against Myanmar at the International Court of Justice (ICJ), highlighting the state-sponsored violence that rendered Rohingya refugees stateless. The ICJ recognized the Rohingya as a "protected group" under the Genocide Convention and ruled that Myanmar must fulfill its obligations to prevent further prejudice and acts of violence against the Rohingya community.

The ICJ's landmark decision emphasizes the need to address the Rohingya Genocide and hold those responsible accountable. It serves as a reminder of the international community's duty to protect human rights and prevent such atrocities. The case highlights the urgency of ensuring justice for the Rohingya and working towards a more inclusive and compassionate world.

Role of The International Court of Justice in the Administration of Justice:

The ICJ plays a crucial role in the administration of justice at the international level in several ways:

Resolving Disputes:

The primary function of the ICJ is to resolve legal disputes between states. Its decisions provide authoritative interpretations of international law and serve as precedents for future cases. By offering a peaceful avenue for dispute settlement, the Court helps maintain international peace and security.

Developing International Law:

Through its judgments, the ICJ contributes to the development and clarification of international law. The Court's decisions, based on the principles of customary international law, treaty law, and general principles of law, enhance the coherence and predictability of the international legal system.

Ensuring State Compliance:

As the ICJ's decisions are binding on the parties involved, the Court plays a vital role in ensuring state compliance with international law. Its authority and enforcement mechanism, backed by the UN Security Council, encourage states to adhere to their legal obligations.

Providing Advisory Opinions: 

The ICJ also offers advisory opinions on legal questions referred to it by UN organs and specialized agencies. These opinions assist in clarifying complex legal issues, guiding the actions of requesting entities, and promoting a consistent interpretation of international law.

Promoting Peaceful Settlement of Disputes:

By providing a neutral and impartial platform for dispute resolution, the ICJ encourages states to seek peaceful avenues for settling their differences. The Court's decisions often contribute to the resolution of conflicts and the prevention of further escalation, fostering international stability and cooperation.

Upholding Human Rights and Humanitarian Law:

The ICJ's decisions have addressed various human rights and humanitarian law issues. By adjudicating cases related to genocide, war crimes, and human rights violations, the Court reinforces the importance of upholding human dignity, justice, and the rule of law.

Strengthening the Rule of Law:

The ICJ's existence and its commitment to the rule of law demonstrate the significance of a rules-based international order. The Court's decisions foster respect for international law among states, promote accountability for unlawful actions and contribute to the peaceful settlement of disputes.

Highlighted Cases of ICJ

The ICJ, through its consistent efforts to administer justice and settle disputes, has an extensive portfolio of cases. Here are a few notable cases that highlight the diverse range of issues addressed by the Court:

Territorial and Maritime Dispute (Peru v. Chile, 2008):

This case involved a long-standing dispute between Peru and Chile over their maritime boundary. On 27 January 2014, the International Court of Justice (ICJ) delivered its judgment on the maritime boundary dispute between Peru and Chile (Peru v. Chile, Judgment, General List No. 137). The Court had to determine first whether a maritime boundary existed between Peru and Chile. If so, then it also had to consider the nature and extent of the boundary. The ICJ clarified the boundary by determining the equidistance method as the basis for the delimitation, ensuring a fair and equitable solution.

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda, 2005):

The Court addressed the issue of Uganda's armed intervention in the Democratic Republic of the Congo during the late 1990s. It found Uganda liable for violations of international law, including acts of aggression and human rights abuses, and ordered reparations for the affected parties.

Jurisdictional Immunities of the State (Germany v. Italy, 2012):

This case centered around Italy's attempt to hold Germany legally responsible for war crimes committed during World War II. The Court ruled that Germany was immune from jurisdiction in Italian courts, highlighting the importance of state immunity and the principle of sovereign equality.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia, 2015):

In this case, Croatia accused Serbia of committing genocide during the Croatian War of Independence in the early 1990s. The Court found that Serbia had not committed genocide but acknowledged that it had violated its obligations under the Genocide Convention by failing to prevent and punish acts of genocide.

Whaling in the Antarctic (Australia v. Japan, 2014):

Australia initiated proceedings against Japan, alleging that its whaling activities in the Antarctic breached international law. The ICJ held that Japan's whaling program was not for scientific purposes and therefore violated its obligations under the International Convention for the Regulation of Whaling.

Difference between ICC (The International Criminal Court) and ICJ (The International Court of Justice)

The International Criminal Court (ICC) and the International Court of Justice (ICJ) are two distinct judicial bodies with different mandates and jurisdictions. Here are the key differences between the ICC and ICJ:

1. Mandate:

ICC: The ICC is a permanent international criminal tribunal established to prosecute individuals for the most serious international crimes, namely genocide, crimes against humanity, war crimes, and the crime of aggression. Its primary focus is on individual criminal responsibility for these crimes.

ICJ: The ICJ is the principal judicial organ of the United Nations and deals primarily with disputes between states. Its role is to settle legal disputes submitted to it by states and to provide advisory opinions on legal questions referred to it by UN organs and specialized agencies. The ICJ's focus is on the resolution of state-to-state disputes and the interpretation and development of international law.

2. Jurisdiction:

ICC: The ICC has jurisdiction over individuals accused of committing crimes within the jurisdiction of the Court, regardless of their nationality. The ICC can exercise jurisdiction when the crime is committed on the territory of a state party to the Rome Statute (the treaty that established the ICC) or when a state refers a situation to the Court, or when the UN Security Council refers a situation to the ICC.

ICJ: The ICJ has jurisdiction over disputes between states that accept its jurisdiction and cases that are referred to it by special agreements or treaties. It does not have jurisdiction over individuals for criminal prosecutions.

3. Structure and Composition:

ICC: The ICC has a permanent structure with 18 judges elected by the Assembly of States Parties for a term of nine years. It also includes a Prosecutor's Office responsible for conducting investigations and prosecutions. The ICC is supported by a Secretariat and various chambers to ensure the effective functioning of the Court.

ICJ: The ICJ consists of 15 judges elected by the UN General Assembly and Security Council for nine-year terms. The Court has a President and a Vice-President elected from among the judges for three-year terms. The ICJ also has a Secretariat to support its operations.

4. Relationship with the United Nations:

ICC: The ICC is an independent institution that operates outside the framework of the United Nations. However, it has a cooperative relationship with the UN, and the Security Council can refer cases to the ICC and request investigations into specific situations.

ICJ: The ICJ is the principal judicial organ of the United Nations and is specifically mentioned in the UN Charter. It is integrated into the UN system and reports its activities to the General Assembly and the Security Council.

The International Court of Justice: Enforcer or Influencer?

The International Court of Justice (ICJ), also known as the World Court, stands as the pinnacle of global legal arbitration. While its pronouncements hold immense weight, the question of its enforcement power remains a subject of debate. Does the ICJ truly wield the capacity to compel states to comply with its rulings?

Limited but Binding:

The key distinction lies in the Court's statutory limitations. Unlike domestic courts, the ICJ lacks its own enforcement arm. Its judgments, while binding on the parties involved, rely on the inherent responsibility of states to comply with international law.

Enforcement by Proxy:

However, the ICJ is not entirely toothless. The UN Security Council, empowered under Chapter VII of the UN Charter, possesses the authority to enforce the Court's decisions. This can take various forms, ranging from diplomatic pressure to economic sanctions and even military intervention.

Veto's Shadow:

This enforcement power, however, is subject to the veto of the five permanent Security Council members. This political reality has hampered enforcement in several cases, such as Nicaragua v. United States (1986), where the US veto prevented action against its violation of international law.

Influence Beyond Enforcement:

Despite these limitations, the ICJ's influence extends far beyond direct enforcement. Its judgments serve as cornerstones of international law, shaping legal norms and guiding future actions. They also exert moral pressure on states, often prompting them to comply even without the threat of formal sanctions.

Legitimacy and Compliance:

The ICJ's legitimacy and prestige also contribute to its effectiveness. States often choose to comply with its rulings to maintain their international standing and avoid reputational damage. This self-interest can be a powerful motivator for adherence to the law.

Conclusion:

The International Court of Justice (ICJ) stands as a cornerstone of the international legal system, providing a platform for the peaceful resolution of disputes and the development of international law. Through its structure, jurisdiction, and landmark decisions, the ICJ plays a vital role in the administration of justice at the international level. By upholding the principles of fairness, impartiality, and adherence to international law, the Court contributes to the maintenance of global peace, stability, and the protection of human rights. As conflicts and legal challenges continue to arise in the ever-evolving global landscape, the ICJ's significance in promoting justice and fostering a rules-based international order remains indispensable.  The ICJ may not possess the direct enforcement powers of national courts, its influence on the international stage remains significant. Its rulings shape legal landscapes, influence state behavior, and promote a more just and equitable global order.