uttara university

Assignment On: Public International Law P-II

Course Code – LLB1003

Assignment Topic: "The Role of International Court of

Justice to Settle International Dispute: A Critical Study"

Submitted To: Md. Imam Hossain

Assistant Professor
Department of Law,
Uttara University
Submitted By: Nurul Absar
ID: M21513411044
Batch: 44(34th),
Semester: Summer
Role of International Court of Justice to Settle International
Dispute

Introduction:
The Justice plays a dominant role to provide for rule of law which is so essential for
strengthening the foundations of democracy. This is more important for a developing
democracy like Bangladesh where weaknesses of democracy in the absence of a strong Justice
could pose threat to individual liberty. Access to justice and Justice as the last resort to justice is
the demand of any democracy. Justice rescues the weak from the misuse of power by the
strong; it protects the minority from the tyranny of the majority. For Justice to be strong and
effective, Court of Justice & Its Role In International Dispute Settlement is the first precondition.

Objectives & Scope of the Study:

The objectives of this research are:

 to review the present status of the Court of Justice & Its Role In International Dispute
Settlement
 to analyze & assess the existing measures for ensuring Court of Justice & Its Role In
International Dispute Settlement
 to find out weakness and problems of Justice
 to propose the betterment options for International Court of Justice & Its Role In
International Dispute Settlement & its improvement
 to ensure high standard of justice & people confidence on Justice.

The scope of this research includes the areas of information required to collect analyze
regarding the International Court of Justice & Its Role In International Dispute Settlement.

The International Court of Justice (ICJ):

The outbreak of war in September 1939 inevitably had serious consequences for the PCIJ, which
had already for some years known a period of diminished activity. After its last public sitting on
4 December 1939, the permanent court of International justice did not in fact deal with any
judicial business and no further elections of judges were help. In 1940 the court removed to
GENEVA, a single judge remaining at the HAGUE, together with a few register officials of Dutch
nationality. It was inevitable that even under the stress of the war some thought should be
given to future of the court, as well 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 war, and the Inter-American juridical committee recommended the extension of the
PCLTs jurisdiction. 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. This committee, under the chairmanship of Sir William Malkin(United Kingdom), held
19meetings, which were attended by jurists from 11 countries. In its report, which was
published on 10 February 1944, it recommended: that the statue of any new international court
should be based on that of the permanent court of international court of Justice. Meanwhile,
on 30 October 1943, following a conference between China, the USSR, the United Kingdom and
the United States, a joint declaration was issued 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, resulting in the
publication on 9 October 1944 of proposals for the establishment of a general international
organization, to include an international court of justice. The next step was the convening of a
meeting 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 the
preparation of a draft Statute for the future international court of justice, for submission to the
San Francisco Conference, which during the months of April to June 1945 was to draw up the
United Nations Charter.

The San Francisco Conference nevertheless showed some concern that all continuity with the
past should not be broken, particularly as the Statute of the PCIJ had itself been drawn up on
the basis of past experience, and it was felt better not to change something that had seemed to
work well. The Charter therefore plainly 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 for a
transfer of the jurisdiction of the PCIJ so far as was possible to the International Court of
Justice. 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 Jose 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 19472. It concerned incidents in the Corfu Channel and was brought by Ihc
United Kingdom against Albania.
International Law and International Jurisdiction:
At the end of the 19th century, governments met at the First Peace Conference at The Hague
and decided to codify international law in treaties. Furthermore, they reached an agreement lo
establish the first permanent international court, the Permanent Court of Arbitration. Article
14 of the Covenant of the League of Nations provided for the creation of a judicial body
entrusted with two kinds of jurisdiction: contentious and advisory were clearly envisaged. In
1921, the predecessor of the Imcrnaiioruil Court of Justice (1C.I). the Permanent Court of
International Justice (PC1J) materialized. The PC1.I was dissolved in 1946 at the same time as
the League’ of Nations.

The 1CJ is an organ of the United Nations and the Statute of the International Court of Justice
forms an integral part of the Charter of the United Nations. The court has functioned since
1945. It does not have compulsory international jurisdiction, and its main function remains to
decide in accordance with international law all disputes submitted to it, (Article 38).

ICJ and the Security Council:

Article 94 establishes the duty of all UN members to comply with decisions of the Court
involving them. If parties do not comply, the issue may be taken before the Security Council for
enforcement action. There are obvious problems with such a method of enforcement. If the
judgment is against one of the permanent five members of the Security Council or its allies, any
resolution on enforcement would then be vetoed. This occurred, for example, after the
Nicaragua case, when Nicaragua brought the issue of the U.S.’s non-compliance with the
Court’s decision before the Security Council. Furthermore, the most effective form to uiku
action for the Security Council – coercive action under chapter VII of the United Nations Charter
– can only be justified if international peace and security are at slake. The Security Council has
never done this so far. The relationship between the ICJ and the Security Council, and the
separation of their powers, was considered by the Court in 1992 in the Pan Am case. The
problem was that these sanctions had been authorized by the Security Council, which resulted
with a potential conflict between the Chapter VII functions of the Security Council and the
judicial function of the Court. The Court decided, by eleven votes to five, that it could not order
the requested provisional measures because the rights claimed by Libya, even if legitimate
under the Montreal Convention, prima facie could not be regarded as appropriate since the
action was ordered by the Security Council. In accordance with Article 103 of the UN Charier,
obligations under the Charter took precedence over other treaty obligations. Nevertheless the
Court declared the application admissible in 1998. A decision on the merits has not been given
since the parties (United Kingdom, United States and Libya) settled the case out of court in
2003.

When deciding cases, the Court applies international law as summarized in-Article 38 of the IC.I
Statute provides thai in arriving at its decisions the Court shall apply international conventions,
international custom, and the “general principles of law recognized by civilized nations”. It may
also refer to academic writing (“the teachings of the most highly qualified publicists of the
various nations”) and previous judicial decisions to help interpret the law, although the Court is
not formally bound by its previous decisions under the doctrine of stare dec’is’is. Article 59
makes clear that the common law notion of precedent or stare decisis does not apply to the
decisions of the ICJ. The Court’s decision binds only the parties to that particular controversy.
Under 38(l)(d), however, the Court may consider its own previous decisions. In reality, the ICJ
rarely departs from its own previous decisions and treats them as precedent in a way similar to
superior courts in common law systems. Additionally, international lawyers commonly operate
as though ICJ judgments had precedential value.

Criticism:
This law-related article does not cite its references or sources. You can held including appropriate
citations, which can be found through legal research. The International Court has been criticized with
respect to its rulings, its procedures, and its authority. As with United Nations criticisms as a whole,
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:

“Compulsory” jurisdiction is limited to cases where both parties have agreed to submit to its
decision, and, as such, instances of aggression tend to be automatically escalated to
and adjudicated by the Security Council.

Organizations, private enterprises, and individuals cannot have their cases takento the
International Court, such as to appeal a national supreme court’s ruling.U.N. agencies likewise
cannot bring up a case except in advisory opinions (a process initiated by the court and non-
binding).

Other existing international thematic courts, such as the ICC, are not under the umbrella of the
International Court.

The International Court does not enjoy a full separation of powers, with permanent members
of the Security Council being able to veto enforcement of even cases to which they consented
in advance to be bound.
Recommendation:
The modern proliferation of international courts and tribunals and the increasing use of binding
third party adjudication to settle international disputes have neither achieved significant
developments in international environmental law nor advanced the state of global
environmental governance. In order to prevent further deterioration of natural resources and
achieve environmental justice, the international community needs to rethink the existing
alternatives for the improvement of the international judicial system.

The International Court of Justice is the principal judicial organ of the United Nations and has
general authority over any international law question, including environmental issues. The
Statute of the Court includes many conservative procedural provisions, such as the ability of
each state to determine whether it chooses to be subject to the decisions of the Court. Each
state also has the option to accept ICJ jurisdiction based on a set of limitations and conditions.
Furthermore, only states themselves can represent their interests before the court, and non-
state actors therefore have no standing.

Conclusion:
The Palestinian leadership “maintained” that the synagogues were “symbols of Israeli
occupation.” Kofi Annan, the Secretary-General of the United Nations at the time, said the
Palestinian Authority had a “moral responsibility to protect the synagogues as places with
religious significance. Some believe that settlements need not necessarily be dismantled and
evacuated, even if Israel withdraws from the territory where they stand, as they can remain
under Palestinian rule. These ideas have been expressed both by left-wing Israelis, and by
Palestinians who advocate the two-state solution, and by extreme Israeli right-wingers and
settlers’ who object to any dismantling and claim links to the land than are stronger than the
political boundaries of the state of Israel. The Israeli government has oftern threatened to
dismantle so-called outposts. Some have actually been dismantled, occasionally with use of
force; this led to settler violence.