The International Court of Justice
The ICJ is one of the six principal organs of the United Nations and sometimes called
‘world court’. It was established in 1945 by the United Nations charter by replacing the
Permanent Court of Justice and started working in April 1946. Its seat is at the Peace
Palace in the Hague (Netherlands). Notably, it is the only UN principal organ not situated
in New York.
The chief function of the ICJ is to settle disputes submitted by parties according to
international law and gives advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies. The official languages of the
ICJ are English and French.
It has 193 state parties which are the members of United Nations and current President is
Ronny Abraham. (Drishtiias, international court of justice)
History-the making of International Court of Justice
The idea of peacefully settling disputes at the international level is a very old one. That
finally took shape in 1922 with the formation of Permanent Court of International Justice
at the time of League of Nations and ceased functioning in 1940 with the outbreak of war
in September 1939.In 1942,the officials of United States and United Kingdom suggests
the need of establishment of International Court. IN 1943 UK take various initiatives by
holding several meetings on this issue. Meanwhile, on 30 October 1943, the major
powers - China, the USSR, the United Kingdom and the United States 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”.(icj-cij.org).In a meeting of Washington,
in April 1945,the responsibility for making a statute for the future International Court was
given to a committee of jurists under the chairmanship of G.H. Hackworth and
submission upto the San Francisco Conference, which was meet from April to June in
1945. The Permanent Court was dissolved in 1946, followed by a decision at the
San Francisco Conference to create a new International Court of Justice
(hereinafter, the ICJ or the Court) on the same lines as the Permanent Court,
but as a principal judicial organ of the United Nations.( Hans-Jurgen Schlochauer ,1995,
pp1084-1085). Contrary to the Statute
of the PCIJ, the Statute of the ICJ is an integral part of the Charter of the
United Nations (Article 92 of the UN Charter) ( ICJ reports,1964) .The first case was
submitted in May 1947. It concerned incidents in the Corfu Channel and was brought by
the United Kingdom against Albania.
Structure
The Court is composed of 15 judges, who are elected for terms of office of nine years by
the United Nations General Assembly and the Security Council. These organs vote
simultaneously but separately.(www.icj-cij..org )
▪ In order to be elected, a candidate must receive an absolute majority of the votes in
both bodies.
▪ In order to ensure a measure of continuity, one third of the Court is elected every
three years and Judges are eligible for re-election.
▪ ICJ is assisted by a Registry, its administrative organ.
▪ The 15 judges of the Court are distributed in following regions:
a. Three from Africa.
b. Two from Latin America and Caribbean.
c. Three from Asia.
d. Five from Western Europe and other states.
e. Two from Eastern Europe.
Jurisdiction and Functioning
▪ ICJ acts as a world court with two fold jurisdiction i.e. legal disputes between
States submitted to it by them (contentious cases) and requests for advisory
opinions on legal questions referred to it by United Nations organs and specialized
agencies (advisory proceedings).
▪ Only States which are members of the United Nations and which have become
parties to the Statute of the Court or which have accepted its jurisdiction under
certain conditions, are parties to contentious cases.
▪ States have no permanent representatives accredited to the Court. They normally
communicate with the Registrar through their Minister for Foreign Affairs .
▪ When they are parties to a case before the Court they are represented by an agent.
▪ Proceedings are held in both written or oral manner before the Court and hearings
are open for public until any party demands to not admitting public.
▪ The final judgement is decided by the majority of votes of the judges involved in
the case or in ties, the vote of President decides the judgement .
▪ The judgment is final, contains name of judges and the reasons on which it is
based, binding on the parties to a case and without appeal (at the most it may be
subject to interpretation or, upon the discovery of a new fact, revision).
▪ A State which considers that the other side has failed to perform the obligations
incumbent upon it under a judgment rendered by the Court may bring the matter before
the Security Council, which is empowered to recommend or decide upon measures to
be taken to give effect to the judgment.
▪ ICJ discharges its duties as a full court but, at the request of the parties, it may also
establish ad hoc chambers to examine specific cases.
▪ Advisory proceedings before the Court are only open to five organs of the United
Nations and 16 specialized agencies of the United Nations family or affiliated
organizations.
▪ Opinions provided by the court in advisory proceedings are essentially
advisory and not binding.
(S. Rao,2003,dispute settlement, pp. 17-24)
Sources of Applicable Law
Matters before the International Court of Justice are decided in accordance
with international law. According to the Statute, the Court is required to apply:
Article 38(1) of the Statute
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.
Article 38 (2) of the Statute
This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono, if the parties agree thereto.
Some case disputes submitted to the ICJ
● Disputes over Territorial Claims and Territorial Possessions In the Case
Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), the
court traced developments that had begun before the 1839 separation of the
Netherlands from Belgium, and in its judgment, on 20 June 1959, it decided that
sovereignty over the disputed plots belonged to Belgium.
● In 1980, in a case brought by the United States concerning the seizure of its
embassy in Teheran and the detention of its diplomatic and consular staff, the
court held that Iran must release the hostages, hand back the embassy and make
reparations. How ever, before the court fixed the amount of reparation, the case
was withdrawn following agreement reached between the parties.
● n 1984, Nicaragua alleged that the United States was using military force
against it and intervening in its internal affairs. The United States denied that
the court had jurisdiction. After written and oral proceedings, the court found,
however, that it had juris diction and that Nicaragua’s application was
admissible. The United States refused to recognize either this ruling or the
subsequent 1986 judgment in which the court determined that the United States
had acted in breach of its obligations toward Nicaragua, must desist from the
actions in question, and should make reparation. The request by Nicaragua that
the court determine the form and amount of reparation was withdrawn in 1991.
● The Corfu Channel Case (UK v. Albania), the first case decided by the court,
was brought before it at the suggestion of the Security Council. On 22 October
1946, two UK destroyers passing through the Corfu channel off the Albanian
coast struck mines whose explosion caused the death of 46 seamen and damage
to the ships. The British there upon mines wept the channel. Albania claimed
that it had not laid the mines. The court found Albania “responsible under
international law for the explosions . . . and for the damage and loss of human
life that resulted there from” and determined the compensation due to the UK at
£843,947, equivalent to approximately us$2.4 million at that time. The court
also found that the British mine-sweeping activities in Albanian territorial
waters had violated international law. The unanimous rejection by the court of
the British claim that the action was justified under the principle of
“self-protection” constituted the first judicial finding that the use of force for
self-help is in certain circumstances contrary to international law.
● The Barcelona Traction Case (Belgium v. Spain) arose out of a 1948 adjudication
by a provincial Spanish law court of the bankcruptcy of a company incorporated
in Canada with subsidiaries operating in Barcelona. Belgium was seeking
reparation for dam ages alleged to have been sustained by Belgian shareholders in
the company as a result of the Spanish court’s adjudication, which Belgium
claimed was contrary to international law. The court, on 5 February 1970, found
that the Belgian government lacked the standing to exercise diplomatic protection
of Belgian shareholder in a Canadian company with respect to measures taken
against that company in Spain.
(Gale group, 2003, World encyclopedia of the nations,vol-1 pp: 45-46)
Limitations of the ICJ
ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the
material resources made available to the Court.
● It has no jurisdiction to try individuals accused of war crimes or crimes against humanity.
As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.
● The ICJ is not an apex court to which national courts can turn to. It is also not a court of
last resort for people.
● The ICJ cannot unanimously take up a case. It can only hear cases or disputes when
requested to do so by States. It can also not investigate and rule on acts of States.
● The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.
● It does not enjoy a full separation of powers, with permanent members of the Security
Council being able to veto enforcement of cases, even those to which they consented to
be bound.
(byjus.com, International Court of Justice)
Way Forward
The International Court of Justice is endowed with both a privileged institutional status and
procedural instruments whose potential is frequently underestimated. It needs strengthening for
the promotion and development of international peace.
References
Gale Group, world Encyclopedia of the Nations, Vol -1 United Nations pp: 23-46
S Rao,2003, Dispute Settlement,pp:1- 40
● https://www.un.org/en/model-united-nations/international-court-justice.
● https://www.icj-cij.org/en/court
● https://byjus.com/free-ias-prep/the-international-court-of-justice/
● www.drishtiias.com/important-institutions/drishti-specials-important-institutions-inter
national-institution/international-court-of-justice-icj
● https://blog.forumias.com/difference-international-court-of-justice-icj-and-internation
al-criminal-court-icc/
