You are on page 1of 4

The International Court of Justice is the principal judicial organ of the United

Nations.
The Court has a dual role: to settle in accordance with international law the legal
disputes submitted to it by States, and to give advisory opinions on legal questions
referred to it by duly authorized international organs and agencies.
The Court is composed of 15 judges elected to nine-year terms of office by the UN
General Assembly and Security Council sitting independently of each other. It may
not include more than one judge of any one nationality. The Members of the Court
do not represent their governments but rather are independent magistrates. When
the Court does not include a judge possessing the nationality of a State party to a
case, that State may appoint a person to sit as a judge ad hoc for the purpose of the
case. . This essay seeks to explain how effective the ICJ is in treating international
disputes with reference to cases such as Nicaragua vs. USA, Palestinian Wall
Advisory Opinion and the Legality of the Threat or Use of Nuclear Weapons, in
addition this essay would explain how effective the UN been with regards to the use
of force in International Law.
In 1984, Nicaragua (plaintiff) brought suit against the United States
(defendant) charging violations of customary and treaty law as a result of the United
States military and paramilitary activities within Nicaragua. Specifically, Nicaragua
alleged the United States violated Article 2, paragraph 4 of both the United Nations
Charter and customary international law by committing attacks on oil pipelines,
storage and port facilities, and Nicaraguan air space; as well as training, arming,
equipping, financing and supplying counter-revolutionary forces seeking to
overthrow the Nicaraguan government. The United States withdrew from the
proceedings, but noted its position that Nicaragua had supplied arms and other
support from its territory to armed opposition to the government of El Salvador. The
United States maintained that its activities against Nicaragua were committed out
of its desire to provide collective self-defense for El Salvador and other Central
American states allegedly threatened by Nicaragua. The International Court of
Justice (ICJ) heard the case and first decided that it did not have jurisdiction over
Nicaraguas claims based on Article 2(4) of the U.N. Charter. However, it did
exercise jurisdiction over Nicaraguas claims that the United States violated
principles of customary international law. The United States defended its actions by
arguing it was entitled to invoke the principle of collective self-defense in
customary international law which permits such actions by a State on behalf of
other States that have experienced an armed attack. The ICJ considered this
argument. However, the Court held that the United States could not justify its
military and paramilitary activities on the basis of collective self-defense. Customary
international law allows for exceptions to the prohibition on the use of force
including the right to individual or collective self-defense. The United States, at an

earlier stage of the proceedings, had asserted that the Charter itself acknowledges
the existence of this customary international law right when it talks of the
inherent right of a State under Article 51 of the Charter. On the other hand, when
a State claims that it used force in collective self-defense, the Court would look into
two aspects: whether the circumstances required for the exercise of self-defense
existed and whether the steps taken by the State, which was acting in self-defense,
corresponds to the requirements of international law (i.e. did it comply with the
principles of necessity and proportionality). Several criteria must be met for a State
to exercise the right of individual or collective self-defense: A State must have been
the victim of an armed attack. Furthermore, this State must declare itself as a victim
of an armed attack. In the case of collective self-defense the victim State must
request for assistance. The ICJ looked extensively into the conduct of Nicaragua, El
Salvador, Costa Rica and Honduras in determining whether an armed attack was
undertaken by Nicaragua against the three countries which in turn would
necessitate self-defense. The Court referred to statements made by El Salvador,
Costa Rica, Honduras and the United States before the Security Council. None of the
countries (who were allegedly subject to an armed attack by Nicaragua) declared
themselves as a victim of an armed attack or request assistance from the United
States in self-defense. As a result, the ICJ concluded that the United States cannot
justify its use of force as collective self-defense. The United States breached its
customary international law obligation not to violate the sovereignty of another
State when it directed or authorized its aircrafts to fly over Nicaraguan territory
and when it laid mines in the internal waters of Nicaragua and its territorial sea.
In the case of Palestine Wall, Israel began to build a wall in Israel-occupied
Palestinian territory. The wall departed from the Armistice Line of 1949. The finished
wall would almost completely encircle communities, push residents out of their
homes and limit the occupied persons' access to lands, wells and means of
subsistence. The construction of the wall violates international law. Israels Wall and
settlement project: composite violations of peremptory norms of international law.
The ICJ has established a legal foundation for Israels and other States obligations,
based on human rights treaties, international humanitarian law and customary
international law. The Court found that Israel is in breach of: the prohibition on the
acquisition of territory by force and the right to self-determination of the Palestinian
people, which are peremptory norms of customary international law, i.e., norms
which are recognised to be binding on all States and from which no derogation is
permitted. In addition, a number of obligations under humanitarian and human
rights law, including the prohibition on forced population transfer; the obligation to
respect Palestinian private and public property; the obligation to refrain from
introducing changes in government or institutions of the OPT that deprive the
Palestinian population of the status and rights enshrined in the Fourth Geneva
Convention; and the obligation to protect the rights enshrined in the ICESCR and
CRC, in particular the rights of Palestinians to work, health, education and an
adequate standard of living. The ICJs analysis as applied to the entire settlement

enterprise reveals additional Israeli breaches of peremptory norms of customary


international law, in particular the prohibitions on colonialism, racial discrimination
and apartheid, and it exposes the gross and systematic manner in which Israel has
violated these norms in order to affect the dramatic long term changes of the status
and demographic composition of the OPT. This argument is supported by the
findings of consecutive UN Special Rapporteurs on the situation of human rights in
the OPT who have characterised Israels regime of occupation, including the
settlements, as a regime of prolonged occupation with features of colonialism and
apartheid.
The International Court of Justice (ICJ) in its advisory opinion on the Legality
of the Threat of Use of Nuclear Weapons opined that "there is in neither customary
nor conventional international law any comprehensive and universal prohibition of
the threat or use of nuclear weapons as such." It is also noted that the ICJ stated
unanimously that the international legal system contains no "specific authorization
of the threat or use of nuclear weapons." In particular, the ICJ replied that it cannot
conclude in a definitive statement as to whether the use of nuclear weapons would
be lawful, or unlawful, in extreme situations where the survival of a State would be
at stake because all States are entitled to the inherent right to self-defense under
Article 51 of the Charter of the United Nations . The ICJ concluded that existing
international environmental law does not specifically prohibit the use of nuclear
weapons and does not impose on States an obligation of total restraint during
military conflict, but that nevertheless States are obliged to take environmental
factors into account when implementing the law that is applicable in armed conflict
(i.e. the law on the use of force in the UN Charter and the international legal rules
pertaining to armed conflict). Consequently, although international environmental
law does not preclude States from exercising their right of self-defense, respect for
the environment is one of the elements that go to assessing whether an action is in
conformity with the principles of necessity and proportionality. The Court supported
its approach with further examples, referring first to Principle 24 of the Rio
Declaration, which pronounces: "Warfare is inherently destructive of sustainable
development. States shall therefore respect international law providing protection
for the environment in times of armed conflict and cooperate in its further
development, as necessary". Subsequently, it cited Article 35(3) and Article 55

of Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, pointing out


that there is a general obligation to protect the environment against widespread,
long-term and severe environmental damage, a prohibition on methods and means
of warfare that cause such damage and a prohibition on taking reprisals that
amount to attacking the environment. Finally, it referred to General Assembly
resolution 47/37 of 25 November 1992 on the Protection of the Environment in
Times of Armed Conflict to support its view that destruction of the environment,
when not justified by military necessity, is contrary to international law.