Professional Documents
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International Court of Justice
International Court of Justice
Justice
INTRODUCTION
ICJ is the principal judicial organ of the United Nations. It is the function of the Icj to decide
in accordance with International law disputes of a legal nature that are submitted to it by
states. In doing so, it is helping to achieve one of the primary aims of the United Nations
(peaceful settlement of dispute)
It is also called as the World Court
Its functions and powers are primarily determined by the ICJ statute annexed to the UN
charter
The ICJ is the successor state of the PCIJ
PCIJ was a highly respected organ, whose decisions were never defied.
The PCIJ was itself the result of Hague Peace Conferences of 1899 and 1907
The ICJ initially was not as successful as PCIJ and faced challenge for basing its decisions
on western conception of world order (specially after Namibia case)
However, after decision in Nicaragua case, which was widely appreciated for its unbiasness.
ICJ Statute
ICJ Statute
Article 21 of the statute also lays down summary procedure for speedy disposal of
business by 5 judges. However this procedure has not yet been used.
A seven member chamber of environmental matters have also been created in
1993.
Article 26 permits the creation of Chambers composed of three or more members
as the Court may determine for dealing with particular categories of cases29 or to
deal with a particular case. (used first time in Gulf of Maine case)
Recourse to a Chamber provides the parties with flexibility in the choice of judges
to hear the case and to that extent parallels arbitration (examples- Burkina faso –
Mali case El Salvador and Honodorus etc)
The rules of procedure and operations were adopted in 1946 and revised in 1972
and 1978. Articles 79 and 80 of the 1978 Rules were amended in 2000 and 2005.
Jurisdiction
Jurisdiction of the Court
ICJ is a judicial institution that decides cases on the basis of international law as it exists
at the date of the decision cases on the basis of international law as it exists at the date
of the decision. It cannot formally create law as it is not a legislative organ. (‘it states
the existing law and does not legislate”
Serbia and Montenegro vs UK – the seven judges held that when choosing between
various grounds upon which to accept or reject jurisdiction, there are three criteria to
guide the court
consistency with previous case –law in order to provide predictability as consistency is the essence of
judicial reasoning’
certitude whereby the court should choose the ground most secure in law
As the principal judicial organ of the UN , the court should be ‘mindful of the possible implications and
consequences for the other pending cases’
The Armed Actions (Nicaragua vs Honduras ) – while political aspects may be present in
any legal dispute brought before it, the court was only concerned to establish that the
dispute in question was a legal dispute ‘in the sense of a dispute capable of being settled
by the application of principles and rules of international law.’ ..other elements cannot
detract from the characterisation of a dispute as a legal dispute.
Continued…
Democratic Republic of Congo vs Uganda- ‘the task of the court must be to
respond on the basis of international law, to the particular legal dispute
brought before it. As it interprets and applies the law, it will be mindful of
context, but it task cannot go beyond that.’
The fact that a matter is also subject to active negotiation, or good offices of
secretary general, or under consideration by SC or regional organisations will
not detract from the competence of the court to exercise its judicial powers.
SC ‘s power is political, while that of ICJ is legal therefore they can perform
their separate but complementary functions with respect to the same events.
The Nature of a Legal Dispute
Note- The question as to the establishment of jurisdiction is a matter for the court itself to decide. Issue of
jurisdiction is a question of law to be resolved by the court in the light of the relevant facts.
Jurisdiction has o be established at the date when the case was filed.
The court possesses inherent jurisdiction to take such action as may be required in order to ensure that the exercise
of its jurisdiction over the merits once established is not frustrated and to ensure the orderly settlement of all
matters in dispute.
The court has freedom to select the ground upon which it will base its judgment and when its jurisdiction is
challenged on diverse grounds, it is free to base its decision on one or more grounds of its own choosing, in
particular ‘the ground which in its judgment is more direct and conclusive.’
Once the court has reached a decision on jurisdiction that decision assumes the character of res judicata that is it
becomes final and binding upon the parties to be taken as correct and may not be reopened
The court’s jurisdiction will not be dependent on the nature of norm alleged to have been violated (like jus cogens).
It will be based only consent of the parties.
Once jurisdiction of court is established, its treatment of the substance of the dispute will be framed by the term of
the jurisdiction it has found to exist and will not deal with issues lying beyond the jurisdiction.
Contentious Jurisdiction
Interim measures are legally binding so when the court makes such an order,
states are expected to carry it out.
The court when considering a request for the indication of provisional measures,
‘must be concerned to preserve..the rights which may subsequently by adjudged
by the court to belong either to the Applicant or to the respondent without being
obliged at that stage of the proceedings to rule on those rights.’
However interim measures would be more effective where both parties recognise
the value of such measures. (eg Frontier dispute case)
They are less useful in situations like Nicaragua Case where one side rejects the
whole idea of judicial settlement because then they cannot be effectively
enforced.
Provisional measures can be made by court either on request of the parties or
even on its own if the court feels it is required to prevent aggravation or
extension of the dispute whenever it considers that circumstances so require.
Example
Frontier dispute case- While their boundary dispute was still pending before
ICJ- there was a flare up pf conflict again between them- A ceasefire was
arranged and the parties requested interim measure from ICJ to avoid
future flare ups. The ICJ decided that interim measures were required and
therefore issued them to the two states.
The Power of the Court to allow Third
State Intervention
The powers of the court to allow third state to intervene in a case are set out
in Article 62 and 63 of the statute
Article 62- (1) Should a state consider that it has an interest of a legal nature
which may be affected by the decision in the case, it may submit a request to
the Court to be permitted to intervene. (2) It shall be fore the court to decide
upon this request
Article 63- (1) Whenever the construction of a convention to which states
other than those convened in the case are parties, is in question, the
Registrar shall notify all such states forthwith (2) Every state so notified has
the right to intervene in the proceedings but if it uses this right, the
construction given by the judgment will be equally binding upon it.
Continued…
Article 62 makes intervention a matter for the courts discretion but it may not be desirable
for the court whose jurisdiction is consensual to deal with the interests of states that are not
present. Difficulties with respect to Article 62 have been
- what constitutes ‘an interest of a legal nature’
- the circumstances in which a state seeking to rely on Article 62
must be able to point to a jurisdictional link between the
main parties to the case.
Article 65 of the statute declares that ‘the court may give an advisory opinion on any legal question
at the request of whatever body may e authorised by or in accordance with the charted of the UN to
make such a request
Article 96- GA and SC and other specialised agencies where so authorised by the GA , may request
such opinions on legal questions arising within the scope of their activities. (what was the politics
behind putting those questions to ICJ, or how did the organ vote is immaterial for ICJ while deciding
)
The purpose of this jurisdiction is to ‘offer legal advice to the organs and institutions requesting the
opinion.’
Therefore the fact that the question put before the court does not relate to a specific dispute does
not affect the competence of the court nor does it matter that the question is of abstract nature
Lack of clarity in drafting the question would not deprive the court of its jurisdiction.
contentious proceedings rested upon the
Court’s jurisdiction in advisory opinion did not rest on consent, Such opinions were not binding
upon anyone and were given not to the particular states but to the organs which requested
them. The Court declared that ‘the reply of the Court, itself an “organ of the United
Nations”, represents its participation in the activities of the organisation, and in principle
should not be refused’.(genocide Convention case)
In Legality of Nuclear Weapons case court held three conditions of jurisdiction is advisory
opinion
- specialised agency must be duly auhorised by GA to request opinion
- opinion must be required on a legal question
- the question must be one arising within the scope of activities of the requesting
agency
Same nature of evidence, standard of proof required here as in case of contentious
proceedings
a balanced opinion is given