CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

POLITICAL SCIENCE PROJECT ON

International Court of Justice

Under The Guidance of: S.P. SINGH

Asst. Professor

Project By: Prasidhi Agrawal

Roll No. 1950

Course : B.A. LLB.

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 ACKNOWLEDGEMENT
I am heartily thankful to my subject teacher Mr. S.P. Singh Sir for his
constant support and valuable guidance in the completion of this project.
Thank you Sir, for without you this project would not have been possible.
I would like to thank my parents for having supported me in all possible
ways for the completion of this project.
I am also thankful to the Library of my university for the help and support
which they provided to me to complete this project.
And last but not the least I wish to thank all my friends and colleagues
who supported me and gave their valuable points of view for the
completion of this project.

Prasidhi Agrawal

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TABLE OF CONTENTS Page No.

1. Introduction 04-07

2. History of ICJ 08-18

3. Jurisdiction of ICJ 19-24

4. Landmark Cases of International Court of Justice 25- 29

5. Critical Analysis of ICJ 30-31

6. Conclusion 32-33

7. Bibliography 34-34

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The International Court of Justice (ICJ)

The outbreak of war in September 1939 inevitably had serious consequences for the

PCIJ, which had for some years been experiencing a decline in its level of activity.

After its last public sitting on 4 December 1939 and its last order on 26 February

1940, the Permanent Court of International Justice in fact dealt with no further

judicial business and no elections of judges were held. In 1940 the Court relocated to

Geneva, leaving one judge in The Hague together with a few Registry officials of

Dutch nationality. Despite the war, consideration needed to be given to the future of

the Court and to the creation of a new international political order.

In 1942 the United States Secretary of State and the Foreign Secretary of the United

Kingdom declared themselves in favour of the establishment or re-establishment of

an international court after the war, and the Inter-American Juridical Committee

recommended that the PCIJ’s jurisdiction should be extended. Early in 1943, the

United Kingdom Government took the initiative of inviting a number of experts to

London to constitute an informal Inter-Allied Committee to examine the matter. That

Committee, under the chairmanship of Sir William Malkin (United Kingdom), held

19 meetings, which were attended by jurists from 11 countries. In its report, which

was published on 10 February 1944, it recommended:

• that the Statute of any new international court should be based on that of the

Permanent Court of International Justice;

• that the new court shoule retain an advisory jurisdiction;

• that acceptance of the jurisdiction of the new court should not be compulsory;

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 • that the court should have no jurisdiction to deal with essentially political

matters.

Meanwhile, on 30 October 1943, following a conference, 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”.

This declaration led to exchanges between the Four Powers at Dumbarton Oaks

(United States), and resulted in the publication on 9 October 1944 of proposals for the

establishment of a general international organization, to include an international court

of justice. A meeting was subsequently convened in Washington, in April 1945, of a

committee of jurists representing 44 States. This Committee, under the chairmanship

of G. H. Hackworth (United States), was entrusted with preparing a draft Statute for

the future international court of justice, for submission to the San Francisco

Conference, which was meeting from April to June 1945 to draw up the United

Nations Charter. The draft statute prepared by the Committee was based on the

Statute of the PCIJ and was therefore not a completely new text. The Committee

nevertheless felt obliged to leave a number of questions open which it felt the

Conference should decide: Should a new court be created? In what form should the

court’s mission as the principal judicial organ of the United Nations be stated? Should

the court’s jurisdiction be compulsory and, if so, to what extent? How should the

judges be elected? The final decisions on those points, and on the definitive form of

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the statute, were made at the San Francisco Conference, in which 50 States

participated. The Conference decided against compulsory jurisdiction and in favour

of the creation of an entirely new court, which would be a principal organ of the

United Nations, on the same footing as the General Assembly, the Security Council,

the Economic and Social Council, the Trusteeship Council and the Secretariat, and

whose statute would be annexed to the Charter, forming an integral part of it. The

main reasons that led the Conference to decide to create a new court were the

following:

• as the court was to be the principal judicial organ of the United Nations, it was

felt inappropriate for that role to be filled by the Permanent Court of

International Justice, with its connection to the League of Nations, which was

itself on the point of dissolution;

• the creation of a new court was more consistent with the provision in the

Charter that all Member States of the United Nations would ipso facto be

parties to the court’s statute;

• several States that were parties to the Statute of the PCIJ were not represented

at the San Francisco Conference and, conversely, several States represented at

the Conference were not parties to the Statute;

• there was a feeling in some quarters that the PCIJ formed part of an older

order, in which European States had dominated the political and legal affairs of

the international community, and that the creation of a new court would make

it easier for States outside Europe to play a more influential role. This proved

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 to be true: the membership of the United Nations has grown from 51 in 1945 to

193 in 2018.

Nevertheless, the San Francisco Conference considered that a degree of continuity

should be maintained, particularly since the Statute of the PCIJ had itself been drawn

up on the basis of past experience, and had seemed to work well. The Charter

therefore clearly stated that the Statute of the International Court of Justice was based

upon that of the PCIJ. At the same time, the necessary steps were taken to transfer as

much of the PCIJ's jurisdiction as possible to the International Court of Justice. In

any event, the decision to create a new court necessarily involved the dissolution of

its predecessor. The PCIJ met for the last time in October 1945 and resolved to

transfer its archives and effects to the new International Court of Justice, which, like

its predecessor, was to have its seat at the Peace Palace. The judges of the PCIJ all

resigned on 31 January 1946, and the election of the first Members of the

International Court of Justice took place on 6 February 1946, at the First Session of

the United Nations General Assembly and Security Council. In April 1946, the PCIJ

was formally dissolved, and the International Court of Justice, meeting for the first

time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last

President of the PCIJ. The Court appointed the members of its Registry (largely from

among former officials of the PCIJ) and held an inaugural public sitting on the 18th

of that month. The first case was submitted in May 1947. It concerned incidents in

the Corfu Channel and was brought by the United Kingdom against Albania.

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 History Of ICJ
The creation of the Court represented the culmination of a long process of developing

methods for the pacific settlement of international disputes, the origins of which can

be traced back to classical times.

Article 33 of the United Nations Charter lists the following methods for the pacific

settlement of disputes between States: negotiation, enquiry, 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 themselves 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.

Historically, mediation and arbitration preceded judicial settlement. The former was

known in ancient India and the Islamic world, whilst numerous examples of the latter

can be found in ancient Greece, in China, among the Arabian tribes, in maritime

customary law in medieval Europe, and in Papal practice.

The origins of arbitration

The modern history of international arbitration is generally recognized as dating from

the so-called Jay Treaty of 1794 between the United States of America and Great

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Britain. This Treaty of Amity, Commerce and Navigation provided for the creation of

three mixed commissions, composed of equal numbers of American and British

nationals, whose task it would be to settle a number of outstanding questions between

the two countries which it had not been possible to resolve by negotiation. While it is

true that these mixed commissions were not strictly speaking organs of third-party

adjudication, they were intended to function to some extent as tribunals. They

reawakened interest in the process of arbitration. Throughout the nineteenth century,

the United States and the United Kingdom had recourse to them, as did other States

in Europe and the Americas.

The Alabama Claims arbitration in 1872 between the United Kingdom and the United

States marked the start of a second, even more decisive, phase. Under the Treaty of

Washington of 1871, the United States and the United Kingdom agreed to submit to

arbitration claims by the former for alleged breaches of neutrality by the latter during

the American Civil War. The two countries set forth certain rules governing the duties

of neutral governments that were to be applied by the tribunal, which they agreed

should consist of five members, to be appointed by the Heads of State of the United

States, the United Kingdom, Brazil, Italy and Switzerland, the last three States not

being parties to the case. The arbitral tribunal’s award ordered the United Kingdom to

pay compensation, which it duly did. The proceedings served to demonstrate the

effectiveness of arbitration in settling of a major dispute, and led during the latter

years of the nineteenth century to a range of developments, namely:

• a sharp growth in the practice of inserting in treaties clauses providing for

recourse to arbitration in the event of a dispute between the parties;

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 • the conclusion of general treaties of arbitration for the settlement of specified

classes of inter-State disputes;

• efforts to construct a general law of arbitration, so that countries wishing to

have recourse to this means of settling disputes would not be obliged to agree

each time on the procedure to be adopted, the composition of the tribunal, the

rules to be followed and the factors to be taken into consideration in making

the award;

• proposals for the creation of a permanent international arbitral tribunal to avoid

the need to set up a special ad hoc tribunal to decide each individual dispute.

The Hague Peace Conferences and the Permanent Court of Arbitration (PCA)

The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar

Nicholas II, marked the beginning of a third phase in the modern history of

international arbitration. The chief object of the Conference, in which — a

remarkable innovation for the time — the smaller States of Europe, some Asian

States and Mexico also participated, was to discuss peace and disarmament. It

culminated in the adoption of a Convention on the Pacific Settlement of International

Disputes, which dealt not only with arbitration but also with other methods of pacific

settlement, such as good offices and mediation.

With respect to arbitration, the 1899 Convention provided for the creation of

permanent machinery which would enable arbitral tribunals to be set up as desired

and would facilitate their work. This institution, known as the Permanent Court of

Arbitration, consisted in essence of a panel of jurists designated by each country

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acceding to the Convention — each country being entitled to designate up to four —

from among whom the members of each arbitral tribunal might be chosen. The

Convention also created a permanent Bureau, located in The Hague, with functions

corresponding to those of a court registry or secretariat, and laid down a set of rules

of procedure to govern the conduct of arbitrations. Clearly, the name “Permanent

Court of Arbitration” is not a wholly accurate description of the machinery set up by

the Convention, which consisted only of a method or device for facilitating the

creation of arbitral tribunals as and when necessary. Nevertheless, the system thus

established was permanent, and the Convention “institutionalized” the law and

practice of arbitration, placing it on a more definite and more generally accepted

footing. The Permanent Court of Arbitration was established in 1900 and began

operating in 1902.

A few years later, in 1907, a second Hague Peace Conference, to which the States of

Central and South America were also invited, revised the Convention and improved

the rules governing arbitral proceedings. Some participants would have preferred the

Conference not to confine itself to improving the machinery created in 1899. The

United States Secretary of State, Elihu Root, had instructed the United States

delegation to work towards the creation of a permanent tribunal composed of judges

who were full-time judicial officers, with no other occupation, who would devote

their time wholly to the trial and decision of international cases by judicial methods.

“These judges”, wrote Secretary Root, “should be so selected from the different

countries that the different systems of law and procedure and the principal languages

shall be fairly represented”. The United States, the United Kingdom and Germany

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submitted a joint proposal for a permanent court, but the Conference was unable to

reach agreement upon it. It became apparent in the course of the discussions that one

of the major difficulties was finding an acceptable way of choosing the judges, since

none of the proposals tabled had garnered widespread support. The Conference

confined itself to recommending that States should adopt a draft convention for the

creation of a court of arbitral justice as soon as agreement was reached “respecting

the selection of the judges and the constitution of the court”. Although this court was

never in fact to see the light of day, the draft convention that was to have given birth

to it enshrined certain fundamental ideas that some years later were to serve as a

source of inspiration for the drafting of the Statute of the Permanent Court of

International Justice (PCIJ).

Notwithstanding the fate of these proposals, the Permanent Court of Arbitration,

which in 1913 took up residence in the Peace Palace that had been built for it thanks

to a gift from Andrew Carnegie, has made a positive contribution to the development

of international law. The landmark cases that have been decided through recourse to it

include the Carthage and Manouba cases (1913) concerning the seizure of vessels,

and the Timor Frontiers (1914) and Sovereignty over the Island of Palmas (1928)

cases. Although these cases demonstrate that arbitral tribunals set up using permanent

machinery could decide disputes between States on a basis of law and justice and

command respect for their impartiality, they also threw into bold relief the

shortcomings of the Permanent Court of Arbitration. Tribunals of differing

composition could hardly be expected to develop a consistent approach to

international law to the same extent as a permanently constituted tribunal. Besides,

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there was the entirely voluntary character of the machinery. The fact that States were

parties to the 1899 and 1907 Conventions did not oblige them to submit their disputes

to arbitration. What is more, even if they were minded to do so, they were not duty-

bound to have recourse to the Permanent Court of Arbitration, nor to follow the rules

of procedure laid down in the Conventions.

The Permanent Court of Arbitration has recently sought to diversify the services that

it can offer, alongside those contemplated by the Conventions. For example, the

International Bureau of the Permanent Court of Arbitration serves as a registry in

important international arbitrations. Moreover, in 1993, the Permanent Court of

Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two

Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration

of Disputes Relating to Natural Resources and/or the Environment”.

For more information on the Permanent Court of Arbitration, please visit its website .

The work of the two Hague Peace Conferences and the ideas they inspired in

statesmen and jurists had some influence on the creation of the Central American

Court of Justice, which operated from 1908 to 1918. In addition, they helped to shape

the various plans and proposals submitted between 1911 and 1919, both by national

and international bodies and by governments, for the establishment of an

international judicial tribunal, which culminated in the creation of the PCIJ as an

integral part of the new international system set up after the end of the First World

War.

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The Permanent Court of International Justice (PCIJ)

Article 14 of the Covenant of the League of Nations gave the Council of the League

responsibility for formulating plans for the establishment of a Permanent Court of

International Justice (PCIJ), which would be competent not only to hear and

determine any dispute of an international character submitted to it by the parties to

the dispute, but also to give an advisory opinion upon any dispute or question referred

to it by the Council or Assembly of the League of Nations. All that remained was for

the League Council to take the necessary action to give effect to Article 14. At its

second session early in 1920, the Council appointed an Advisory Committee of

Jurists to submit a report on the establishment of the PCIJ. The committee sat in The

Hague, under the chairmanship of Baron Descamps (Belgium). In August 1920, a

report containing a draft scheme was submitted to the Council, which, after

examining it and making certain amendments, presented it to the First Assembly of

the League of Nations, which opened in Geneva in November of that year. The

Assembly instructed its Third Committee to examine the question of the Court’s

constitution. In December 1920, after an exhaustive study by a subcommittee, the

Committee submitted a revised draft to the Assembly, which unanimously adopted it.

This was the Statute of the PCIJ.

The Assembly decided that a vote alone would not be sufficient to establish the PCIJ,

and that the Statute would have to be formally ratified by each State represented in

the Assembly. In a resolution of 13 December 1920, it called upon the Council to

submit a protocol adopting the Statute to the Members of the League of Nations, and

decided that the Statute should come into force once a majority of Member States had

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ratified it. The protocol was opened for signature on 16 December. By the time of the

next meeting of the Assembly, in September 1921, a majority of the Members of the

League had signed and ratified the protocol. The Statute thus entered into force. It

was to be revised only once, in 1929, the revised version coming into force in 1936.

Among other things, the new Statute resolved the previously insurmountable problem

of the election of the members of a permanent international tribunal, by providing

that the judges were to be elected concurrently, but independently, by the Council and

the Assembly of the League, and that it should be borne in mind that those elected

“should represent the main forms of civilization and the principal legal systems of the

world”. Simple as this solution may now seem, in 1920 it represented a considerable

achievement. The first elections were held on 14 September 1921. Following

approaches by the Netherlands Government in the spring of 1919, it was decided that

the PCIJ should have its permanent seat at the Peace Palace in The Hague, which it

would share with the Permanent Court of Arbitration. It was accordingly in the Peace

Palace that the Court’s preliminary session devoted to the elaboration of the Court’s

Rules opened on 30 January 1922, and it was there too that its inaugural sitting was

held on 15 February 1922, with the Dutch jurist Bernard C. J. Loder as President.

The PCIJ was thus a working reality. The great advance it represented in the history

of international legal proceedings can be appreciated by considering the following:

• unlike arbitral tribunals, the PCIJ was a permanently constituted body

governed by its own Statute and Rules of Procedure, fixed beforehand and

binding on parties having recourse to the Court;

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• it had a permanent Registry which, inter alia, served as a channel of

communication with governments and international bodies;

• its proceedings were largely public and provision was made for the publication

in due course of the pleadings, of verbatim records of the sittings and of all

documentary evidence submitted to it;

• the permanent tribunal thus established was now able to set about gradually

developing a constant practice and maintaining a certain continuity in its

decisions, thereby enabling it to make a greater contribution to the

development of international law;

• in principle the PCIJ was accessible to all States for the judicial settlement of

their international disputes, and States were able to declare beforehand that for

certain classes of legal disputes they recognized the Court’s jurisdiction as

compulsory in relation to other States accepting the same obligation. This

system of optional acceptance of the jurisdiction of the Court was the most that

it was then possible to obtain;

• the PCIJ was empowered to give advisory opinions upon any dispute or

question referred to it by the League of Nations Council or Assembly;

• the Court’s Statute specifically listed the sources of law it was to apply in

deciding contentious cases and giving advisory opinions, without prejudice to

the power of the Court to decide a case >ex aequo et bono if the parties so

agreed;

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 • it was more representative of the international community and of the major

legal systems of the world than any previous international tribunal had ever

been.

Although the Permanent Court of International Justice was brought into being

through, and by, the League of Nations, it was nevertheless not a part of the League.

There was a close association between the two bodies, reflected, inter alia, in the fact

that the League Council and Assembly periodically elected the Members of the Court

and that both Council and Assembly were entitled to seek advisory opinions from the

Court. However, the latter never formed an integral part of the League, just as the

Statute never formed part of the Covenant. In particular, a Member State of the

League of Nations was not by that fact alone automatically a party to the Court’s

Statute.

Between 1922 and 1940 the PCIJ dealt with 29 contentious cases between States and

issued 27 advisory opinions. At the same time several hundred treaties, conventions

and declarations conferred jurisdiction upon it over specified categories of disputes.

Any lingering doubts about whether a permanent international judicial tribunal could

function in a practical and effective manner were thus dispelled. The Court’s value to

the international community was demonstrated in a number of different ways, and

first and foremost by its development of a proper judicial process. This found

expression in the Rules of Court, which the PCIJ originally drew up in 1922 and

subsequently revised on three occasions, in 1926, 1931 and 1936. There was also the

PCIJ’s Resolution concerning the Judicial Practice of the Court, adopted in 1931 and

revised in 1936, which laid down the internal procedure to be followed during the

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Court’s deliberations on each case. In addition, while helping to resolve some serious

international disputes, many of them consequences of the First World War, the

decisions of the PCIJ at the same time often clarified previously unclear areas of

international law or contributed to their development.

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 Jurisdiction Of ICJ
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. For example, before becoming a UN

member state, Switzerland used this procedure in 1948 to become a party, and Nauru

became a party in 1988. 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
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 in cases although the court may receive information from public

international organizations. That does not preclude non-state interests from being the

subject of proceedings if a state brings the case against another. For example, a state

may, in cases of "diplomatic protection", bring a case on behalf of one of its nationals

or corporations.

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Jurisdiction is often a crucial question for the court in contentious cases. (See

Procedure below.) The key principle is that the ICJ has jurisdiction only on the basis

of consent. Article 36 outlines four bases on which the court's jurisdiction may be

founded:

• First, 36(1) provides that parties may refer cases to the court (jurisdiction

founded on "special agreement" or "compromis"). This method is based on

explicit consent rather than true compulsory jurisdiction. It is, perhaps, the

most effective basis for the court's jurisdiction because the parties concerned

have a desire for the dispute to be resolved by the court and are thus more

likely to comply with the court's judgment.

• Second, 36(1) also gives the court jurisdiction over "matters specifically

provided for... in treaties and conventions in force". Most modern treaties

contain a compromissory clause, providing for dispute resolution by the ICJ.[19]

Cases founded on compromissory clauses have not been as effective as cases

founded on special agreement since a state may have no interest in having the

matter examined by the court and may refuse to comply with a judgment. For

example, during the Iran hostage crisis, Iran refused to participate in a case

brought by the US based on a compromissory clause contained in the Vienna

Convention on Diplomatic Relations and did not comply with the judgment.[20]

Since the 1970s, the use of such clauses has declined. Many modern treaties set

out their own dispute resolution regime, often based on forms of arbitration.[21]

• Third, Article 36(2) allows states to make optional clause declarations

accepting the court's jurisdiction. The label "compulsory" sometimes placed on

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 Article 36(2) jurisdiction is misleading since declarations by states are

voluntary. Furthermore, many declarations contain reservations, such as

exclusion from jurisdiction certain types of disputes ("ratione materia").[22]

The principle of reciprocity may further limit jurisdiction. As of February

2011, sixty-six states had a declaration in force.[23] Of the permanent Security

Council members, only the United Kingdom has a declaration. In the court's

early years, most declarations were made by industrialized countries. Since the

Nicaragua case, declarations made by developing countries have increased,

reflecting a growing confidence in the court since the 1980s.[citation needed]

Industrialized countries, however, have sometimes increased exclusions or

removed their declarations in recent years. Examples include the United States,

as mentioned previously, and Australia, which modified its declaration in 2002

to exclude disputes on maritime boundaries (most likely to prevent an

impending challenge from East Timor, which gained their independence two

months later).

• Finally, 36(5) provides for jurisdiction on the basis of declarations made under

the Permanent Court of International Justice's statute. Article 37 of the Statute

similarly transfers jurisdiction under any compromissory clause in a treaty that

gave jurisdiction to the PCIJ.

• In addition, the court may have jurisdiction on the basis of tacit consent (forum

prorogatum). 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. The notion arose in the Corfu Channel Case (UK v

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 Albania) (1949), 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.

Examples of contentious cases

• A complaint by the United States in 1980 that Iran was detaining American

diplomats in Tehran in violation of international law.

• A dispute between Tunisia and Libya over the delimitation of the continental

shelf between them.

• A complaint by Iran after the shooting down of Iran Air Flight 655 by the

United States Navy guided missile cruiser.

• A dispute over the course of the maritime boundary dividing the U.S. and

Canada in the Gulf of Maine area.

• A complaint by the Federal Republic of Yugoslavia against the member states

of the North Atlantic Treaty Organization regarding their actions in the Kosovo

War. This was denied on 15 December 2004 because of lack of jurisdiction, the

FRY not being a party to the ICJ statute at the time it made the application.

• A complaint by the Republic of Macedonia (former Yugoslav Republic of

Macedonia) that Greece is, by vetoing its accession to NATO, in violation of

the Interim Accord of 13 September 1995[35] between the two countries. The

complaint was decided in favour of Macedonia on 5 December 2011.

• A complaint by the Democratic Republic of the Congo that the DRC's

sovereignty had been violated by Uganda and that DRC had lost billions of

dollars worth of resources, was decided in favour of the DRC.

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 • A complaint by the Republic of India regarding death penalty awarded to

Indian citizen by a Pakistani military court. Pakistan arrested Kulbhushan

Jadhav, an Indian citizen for alleged espionage and subversive activities.

Incidental jurisdiction

Until rendering a final judgment, the court has 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 submitted an application to the court to

indicate interim measures.[25] Incidental jurisdiction of the court derives from the

Article 41 of the Statute of it.[26] Such as the final judgment, the order for interim

measures of the court are binding on state parties to the dispute. The ICJ has

competence to indicate interim measures only if the prima facie jurisdiction is

satisfied.

Advisory opinions

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 a power to request the court to issue an advisory opinion on any legal

question. Other organs of the UN rather than GA and SC may not request an advisory

opinion of the ICJ unless the General Assembly authorizes them. Other organs of the

UN only request an advisory opinion of the court regarding the matters falling into

the scope of their activities.[27] On receiving a request, the court decides which states

and organizations might provide useful information and gives them an opportunity to

present written or oral statements. Advisory opinions were intended as a means by

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which UN agencies could seek the court's help in deciding complex legal issues that

might fall under their respective mandates.

In principle, the court's advisory opinions are only consultative in character 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.

An advisory opinion derives its status and authority from the fact that it is the official

pronouncement of the principal judicial organ of the United Nations.[28]

Advisory opinions have often been controversial because the questions asked are

controversial or the case was pursued as an indirect way of bringing what is really a

contentious case before the court. Examples of advisory opinions can be found in the

section advisory opinions in the List of International Court of Justice cases article.

One such well-known advisory opinion is the Nuclear Weapons Case.

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Landmark Cases of International Court of Justice

Corfu Channel case

The Corfu Channel case (French: Affaire du Détroit de Corfou) was the first public

international law case heard before the International Court of Justice (ICJ) between

1947 and 1949, concerning state responsibility for damages at sea, as well as the

doctrine of innocent passage. A contentious case, it was the first of any type heard by

the ICJ after its establishment in 1945.

Following a series of encounters from May to November 1946 in the Corfu Channel

between the United Kingdom and the People's Republic of Albania—one of which

resulted in damage to two Royal Navy ships and significant loss of life—the United

Kingdom brought suit in the ICJ seeking reparations. After an initial ruling on

jurisdiction in 1948, the ICJ issued separate merits and compensation judgments in

1949. The Court awarded the United Kingdom £843,947. This amount remained

unpaid for decades, and British efforts to see it paid led to another ICJ case to resolve

competing Albanian and Italian claims to more than two tons of Nazi gold. In 1996,

Albania and the United Kingdom settled the judgment along with Albania's

outstanding claim to the gold.

Corfu Channel has had a lasting influence on the practice of international law,

especially the law of the sea. The concept of innocent passage used by the Court was

ultimately adopted in a number of important law of the sea conventions. The stance

taken by the Court on use of force has been of importance in subsequent decisions,

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such as Nicaragua v. United States. Additionally, the case served to set a number of

procedural trends followed in subsequent ICJ proceedings.

Nicaragua v. United States

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public

international law case decided by the International Court of Justice (ICJ). The ICJ

ruled in favor of Nicaragua and against the United States and awarded reparations to

Nicaragua. The ICJ held that the U.S. had violated international law by supporting the

Contras in their rebellion against the Nicaraguan government and by mining

Nicaragua's harbors. The United States refused to participate in the proceedings after

the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The

U.S. also blocked enforcement of the judgment by the United Nations Security

Council and thereby prevented Nicaragua from obtaining any

compensation.Nicaragua, under the later, post-FSLN government of Violeta

Chamorro, withdrew the complaint from the court in September 1992 following a

repeal of the law which had required the country to seek compensation.

The Court found in its verdict that the United States was "in breach of its obligations

under customary international law not to use force against another State", "not to

intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful

maritime commerce", and "in breach of its obligations under Article XIX of the

Treaty of Friendship, Commerce and Navigation between the Parties signed at

Managua on 21 January 1956."

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The Court had 16 final decisions upon which it voted. In Statement 9, the Court

stated that while the U.S. encouraged human rights violations by the Contras by the

manual entitled Psychological Operations in Guerrilla Warfare, this did not make

such acts attributable to the U.S.

United States Diplomatic and Consular Staff in Tehran (United States

of America v. Iran)

The case was brought before the Court by Application by the United States following

the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979,

and the capture and holding as hostages of its diplomatic and consular staff. On a

request by the United States for the indication of provisional measures, the Court held

that there was no more fundamental prerequisite for relations between States than the

inviolability of diplomatic envoys and embassies, and it indicated provisional

measures for ensuring the immediate restoration to the United States of the Embassy

premises and the release of the hostages. In its decision on the merits of the case, at a

time when the situation complained of still persisted, the Court, in its Judgment of 24

May 1980, found that Iran had violated and was still violating obligations owed by it

to the United States under conventions in force between the two countries and rules

of general international law, that the violation of these obligations engaged its

responsibility, and that the Iranian Government was bound to secure the immediate

release of the hostages, to restore the Embassy premises, and to make reparation for

the injury caused to the United States Government. The Court reaffirmed the cardinal

importance of the principles of international law governing diplomatic and consular

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relations. It pointed out that while, during the events of 4 November 1979, the

conduct of militants could not be directly attributed to the Iranian State — for lack of

sufficient information — that State had however done nothing to prevent the attack,

stop it before it reached its completion or oblige the militants to withdraw from the

premises and release the hostages. The Court noted that, after 4 November 1979,

certain organs of the Iranian State had endorsed the acts complained of and decided to

perpetuate them, so that those acts were transformed into acts of the Iranian State.

The Court gave judgment, notwithstanding the absence of the Iranian Government

and after rejecting the reasons put forward by Iran in two communications addressed

to the Court in support of its assertion that the Court could not and should not

entertain the case. The Court was not called upon to deliver a further judgment on the

reparation for the injury caused to the United States Government since, by Order of

12 May 1981, the case was removed from the List following discontinuance.

The North Sea Continental Shelf case

Germany v Denmark and the Netherlands [1969] ICJ 1 (also known as The North

Sea Continental Shelf cases) were a series of disputes that came to the International

Court of Justice in 1969. They involved agreements among Denmark, Germany, and

the Netherlands regarding the "delimitation" of areas—rich in oil and gas—of the

continental shelf in the North Sea. Germany's North Sea coast is concave, while the

Netherlands' and Denmark's coasts are convex. If the delimitation had been

determined by the equidistance rule ("drawing a line each point of which is equally

distant from each shore"), Germany would have received a smaller portion of the

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resource-rich shelf relative to the two other states. Thus Germany argued that the

length of the coastlines be used to determine the delimitation.

Germany wanted the ICJ to apportion the Continental Shelf to the proportion of the

size of the state's adjacent land and not by the rule of equidistance.

The Court ultimately urged the parties to "abat[e] the effects of an incidental special

feature [Germany's concave coast] from which an unjustifiable difference of

treatment could result." In subsequent negotiations, the states granted to Germany

most of the additional shelf it sought. The cases are viewed as an example of "equity

praeter legem"—that is, equity "beyond the law"—when a judge supplements the law

with equitable rules necessary to decide the case at hand.

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 CRITICAL ANALYSIS OF ICJ

The International Court has been criticized with respect to its rulings, its procedures,

and its authority. As with criticisms of the United Nations, many of these criticisms

refer more to the general authority assigned to the body by member states through its

charter than to specific problems with the composition of judges or their rulings.

Major criticisms include the following:

• "Compulsory" jurisdiction is limited to cases where both parties have agreed to

submit to its decision, and so instances of aggression tend to be automatically

escalated to and adjudicated by the Security Council. According to the

sovereignty principle of international law, no nation is superior or inferior

against another. Therefore, there is no entity that could force the states into

practice of the law or punish the states in case any violation of international

law occurs. Therefore, the absence of binding force means that the 193

member states of the ICJ do not necessarily have to accept the jurisdiction.

Moreover, membership in the UN and ICJ does not give the court automatic

jurisdiction over the member states, but it is the consent of each state to follow

the jurisdiction that matters.

• Organizations, private enterprises, and individuals cannot have their cases

taken to the International Court or appeal a national supreme court's ruling. UN

agencies likewise cannot bring up a case except in advisory opinions (a process

initiated by the court and non-binding). Only states can bring the cases and

become the defendants of the cases. This also means that the potential victims

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 of crimes against humanity, such as minor ethnic groups or indigenous peoples,

may not have appropriate backing by a state.

• Other existing international thematic courts, such as the ICC, are not under the

umbrella of the International Court. Unlike ICJ, international thematic courts

like ICC work independently from United Nations. Such dualistic structure

between various international courts sometimes makes it hard for the courts to

engage in effective and collective jurisdiction.

• The International Court 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. Because the

jurisdiction does not have binding force itself, in many cases, the instances of

aggression are adjudicated by Security Council by adopting a resolution, etc.

There is, therefore, a likelihood for the permanent member states of Security

Council to avoid the legal responsibility brought up by International Court of

Justice, as shown in the example of Nicaragua v. United States.

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 CONCLUSION

At the time of its establishment the International Court of Justice was the

global communities only standing international court. Today it has been

joined by a multitude of courts and tribunals dealing with matters of trade

law human rights law international criminal law and the law of the seat as

well as a large number of ad hoc tribunals created for the purpose of hearing

a single case. These are however a number of features of the ICJ which set it

apart. It has a universality which other courts and tribunals do not possess.

any of the member States of the United Nations can be parties to cases

before it and all can participate in the vote in the General assembly to elect

the judges of the Court. Today that universality is more pronounced than

ever. States have been parties in cases before the Court (twenty-five are

parties to pending cases). Moreover they come from all regions of the world:

of the parties to pending cases six are from Arica ,six from Latin America and

the Caribbean three from Asia five from Eastern Europe and five from the

West European and others group. Forty-three states took part in the recent

proceedings on the request for an advisory opinion regarding the declaration

of independence in respect of Boson. All 192 member states of the United

Nations took part in the last vote to elect five judges in 2008.

The Court is also universal in another sense. Unlike specialised courts and

tribunals whose jurisdiction is confined to particular areas of international law

(as is the cases for example with the International Tribunal for the Law of the

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sea) the jurisdiction of the International Court of Justice covers the whole

field of international law. The cases currently before the Court include land

and maritime boundary disputes , environmental issues, whaling, the

prosecution or extradition of a former head of state, sovereign immunity and

the use of force. Moreover, a glance at the current cases and the recent

decisions of the Court will show that many of the cases have involved issues

of great importance to the parties and often to the global community as a

whole.

While no-one would argue that the International Court (or any of the other

international institutions) has realised the dreams of some of those who at

the Hague peace Conferences of 1899 and 1907 saw international

adjudication as something that would abolish war, it is worth noting the

record of the Court in resolving disputes which had led to outbreaks of

fighting. Several of the cases including in particular the Libya/Chad, Bukrina

Faso/Mali and Cameroon v. Nigeria cases had led to fighting either before

they were referred to the Court or while the cases were pending. In such

cases the combination of provisional measures of protection where

appropriate and an effective procedure of adjudication has halted a number

of conflicts in their tracks.

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 Bibliography

BOOKS

- The Problem of an International Court of Justice;; Volume 2

- The Icj'S Practice On Provisional Measures

STATUTE

1. UN Charter

2. ICJ Charter

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