DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

SUBJECT

INTERNATIONAL CRIMINAL LAW

FACULTY

DR. ARVINDNATH TRIPATHI

TOPIC

THE PACE OF INTERNATIONAL COURT OF JUSTICE

DONE BY:

M. Eswar Brahmanand

Roll No.: 2017050

Section-A

Semester-X

1
TABLE OF CONTENTS:-

1. Introduction & Jurisdiction Matters

2. Historical Evolution
3. Roles--Functional Duties of the International Court of Justice
4. Enforcing the Decisions & Reasons for Not?
5. Conclusion

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 CHAPTER-I

INTRODUCTION & JURISDICTION MATTERS

We are in the midst of a new age in human history, as the planet has undergone enormous
transformation. Many issues have been raised about how these changes would affect
international community structure, similar to those that sparked the creation of the League of
Nations and the United Nations in 1919 and 1945, respectively. Considering that the United
Nations is the only really global organisation, many of these questions revolve with the future
of the international legal order and how the UN will play a role in it (for example, its
constitutional structure, the new role of its organs, the balance of power in the work of these
organs, and the relationship between them)

One of the goals of the United Nations is to resolve international conflicts peacefully and in
accordance with the principles of justice and international law, so that there is no risk of war.
In order to accomplish the aforementioned goal, the organisation needed to have its own legal
department. To this end, the International Court of Justice was established. To replace the
Permanent Court of international justice, the International Court of Justice (ICJ) was formed
in 1945.

UN Charter states that the International Court of Justice (ICJ) serves as one of the UN’s most
important institutions. As a result, it is understandable that international initiatives aimed at
strengthening the UN to meet the current challenges should include the ICJ’s status and
function. International organisations and international adjudication may seem to be relatively
new phenomena when it comes to the ICJ’s role as the UN’s primary judicial instrument.
However, the ICJ’s current standing is the result of a long history of international
organisations and international adjudication in the international arena.

International legal personality has historically been used as a legal fiction to allow
international entities to participate in the international legal system. Furthermore,
international legal personality does not grant any rights or obligations of its own.
International legal personality is a matter of fact for many international organisations, having
been explicitly included in the underlying founding document. Fewer and fewer writers on
international institutional law have taken the time or effort in recent years to appreciate or
explain the nuances of this concept. When it comes to the International Humanitarian Fact-
Finding Commission (“the Commission”), the notion of international legal personality is at

3
the core of their attempts to be recognised as bona fide entities. As a consequence of an event
in Eastern Ukraine, the Commission received its first request for forensic inquiry in May
2017. State governments must acknowledge the Commission’s (existing) international legal
personality in order to successfully carry out the Commission’s tasks in that volatile and
chaotic part of the globe. Because of the project’s focus on roles and responsibilities, it
should assist new international organisations get the status of “organisation hood” and
everything that comes with it.

To argue that states intended to grant international legal personality to the International Court
of Justice (“ICJ”) 1949 advisory opinion on reparation for injuries suffered while serving the
United Nations, some might cherry-pick the italicised portions. However, this could be
problematic because the constitution of the institution does not expressly provide for
international legal personality.

As a political body, the United Nations Organization has a wide range of responsibilities,
including the maintenance of international peace and security, the development of friendly
relations between nations, and the achievement of international co-operation in the solution
of problems of an economic, social, cultural, or humanitarian nature (Article-I). In dealing
with its Members, the United Nations Organization employs political means.... There are
obligations and rights established amongst signatories to the United Nations 1946
“Convention on the Privileges and Immunities of the United Nations” (in particular, Section
35). It’s hard to see how a convention like this could work unless on an international scale
and between parties with a global reach. As a result of its worldwide personality and ability
to operate on an international level, the Court believes that the Organization was meant to and
is now exercising and enjoying functions and rights that can only be explained by the
Organization’s existence. In its current form, it is the pinnacle of multinational organisations,
and its founders’ goals could not be realised without a worldwide presence. It must be
accepted that its Members, by delegating particular tasks to it, with the accompanying
obligations and responsibilities, have given it the competence necessary to properly perform
those activities.

The International Court of Justice is a part of this global society. In 1945, the Court was
established, and it started its duties in 1946. However, its roots may be traced back to the pre-
war Permanent Court of International Justice, which was established by the League of
Nations after World War II. The International Court of Justice, on the other hand, is an

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important element of the United Nations, as opposed to the Permanent Court of the League of
Nations. UN Charter created the Court as “the primary judicial arm of the United Nations 1”.
Members of the United Nations are automatically parties to the Statute since it is included in
their Charter2.

The International Court of Justice was the only international court in existence at the time of
its creation. Many courts and tribunals have been established to handle a wide range of legal
issues, including trade law and human rights. There are also many ad hoc tribunals that have
been established for the sole purpose of hearing a particular case. The International Court of
Justice, on the other hand, has a number of distinguishing characteristics. Unlike other courts
and tribunals, it has universality that none of them have. The General Assembly of the United
Nations may elect judges for the Court, and any of the 192 member states of the UN can be
parties to matters before it3. In today’s world, that universality has become more apparent
than ever. Countries have taken part in court proceedings (twenty-five are parties to pending
cases). Of the parties to outstanding lawsuits, six are from Africa, six are from Latin America
and the Caribbean, three are from Asia, five are Eastern European, and five are Western
European and Others. More than 40 nations participated in the recent proceedings on
Kosovo’s request for an advisory opinion on independence. In 2008, 192 of the United
Nations’ member states cast ballots to elect five judges. In another sense, the Court is
universal. The International Court of Justice’s jurisdiction is not limited to a specific area of
international law, as is the case with specialised courts and tribunals, such as the International
Tribunal for the Law of the Sea. A previous head of state’s extradition or prosecution is one
of the many matters now before the Court, as is a disagreement over sea and land border
lines, environmental problems, and the use of force. An examination of ongoing cases and
previous judgments of the Court reveals that many contain problems of critical relevance to
the parties and, in many instances, the global society at large.

Two sorts of cases fall within the jurisdiction of the Court. State-to-state disputes are the only
circumstances in which it has the authority to make binding judgements 4. Individuals,
businesses, governmental5 and non-governmental organisations, and even international

1
U.N. Charter- Art-92
2
Art-93
3
Article 4 of the Statute of the Court provides that the judges are elected by the General Assembly and the
Security Council. The two organs vote separately but simultaneously; a candidate must secure a majority in both
organs to be elected. Statute of the International Court of Justice, 3 Bevans 1179, art. 8-12
4
Statute of the Court at Art. 59; see also U.N. Charter, Art. 94
5
Statute of the Court at Arts. 34 to 37

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organisations are unable to bring or defend legal action in front of the court 6. International
law advisory opinions are a second sort of matter that the Court might take on. The General
Assembly or Security Council of the United Nations, as well as other UN bodies or
specialised organisations that have been granted delegation authority by the General
Assembly, may submit requests for an opinion7. With regard to questions raised in Article-
66(2) of its Statute, the Court determines which States and international organisations are
most capable of providing relevant data and invites them into the proceedings 8. All UN
member states are asked to participate when the issue is one of wide legal significance. As a
result, the Court may ask non-Statutory parties to participate in the proceedings 9, as well.
Advisory opinions are not binding, but they are an essential source of advice on the subject of
international law, which is, of course, legally binding. There are no parties to proceedings on
a request for an advisory opinion.

As all 192 UN members are parties to the Statute, any of them may theoretically be a party to
a matter brought before the Court by the Court. The Court’s jurisdiction is not predicated on
the parties’ agreement in any specific instance, but that does not imply it will. The Court
cannot decide on the merits of a dispute between two parties unless both parties have agreed
to the Court’s jurisdiction at some point. Consent may be provided in a number of ways. It is
common for parties to agree to refer a disagreement to the Court after it has arisen, as in
many situations when a judge has issued a decision on merits. For example, recent decisions
by the Court in conflicts between Malaysia and Singapore, Malaysia and Indonesia, and
Benin and Niger all relied on permission supplied in the form of this kind of agreement
(which is seldom subject to any debate10) (frequently called a compromise).

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That fact is often overlooked. In JH Rayner v. Dep’t of Trade [1990] 2 A.C. 418 (House of Lords) Lord Oliver,
dismissing “an appeal against the Member States of the International Tin Council by a group of banks and
brokers who were creditors of the Council, suggested that the creditors’ only remedy lay in proceedings in the
International Court of Justice. In reality, no action in that Court had ever been open to them.”
7
U.N. Charter, Art. 46
8
That was done, e.g., in Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, 2004 I.C.J. 136, and Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, Advisory Opinion (July 22, 2010)
9
The Court invited Palestine to participate in the Wall proceedings and the Provisional Institutions of Self-
Government of Kosovo to participate in the Kosovo proceedings
10
There have, however, been occasional instances of States disputing the scope of such agreement or even
whether an agreement had actually been concluded. See, e.g., Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, 1994 ICJ REP. 112 (July 1)

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 CHAPTER-II

HISTORICAL EVOLUTION

The establishment of the International Court of Justice was the completion of a protracted
process that can be traced back to classical times in the development of techniques for the
peaceful resolution of international conflicts. For peaceful resolution of conflicts between
states, UN Charter Article 33 specifies the use of dialogue, inquiry, mediation, conciliation,
arbitration, judicial settlement, and referral to regional agencies or arrangements, as well as
the use of good office. Some of these strategies rely on enlisting the help of others.
Mediation, for example, puts disputing parties in a situation where they may settle their
differences on their own with the help of a third party. Arbitration takes a step further by
submitting the issue to a third-party judgement or award, allowing for a legally enforceable
resolution. Except that courts are subject to stronger restrictions than arbitral tribunals in
procedural areas, for example, judicial settlement is the same as arbitration. Mediation and
arbitration have traditionally been used before a courtroom settlement was reached. There are
several instances of the latter in ancient Greece, China, Arabian tribes, early Islamic world,
marine customary law in mediaeval Europe, and Papal practise. The former was known, for
example, in ancient India.

The Jay Treaty of 1794 between the United States and Great Britain is widely seen as the
beginning of contemporary international arbitration. There were a number of issues between
the United States and Great Britain that could not be resolved via negotiations, and this treaty
called for the establishment of three mixed commissions made up of equal numbers of
Americans and British citizens. These mixed commissions were not designed to serve as
courts in the strictest sense of the word, but they did have some of the characteristics of such
bodies. In doing so, they re-ignited interest in the arbitration procedure. Other countries in
Europe and the Americas relied on them throughout the nineteenth century, including the
United States.

After the Alabama Claims arbitration in 1872, international arbitration entered a new and
even more crucial phase, with the United Kingdom and the United States both participating.
During the American Civil War, the United States and Great Britain signed the Treaty of
Washington in 1871, which mandated that the latter submit to arbitration claims brought by
the former on behalf of the latter. The heads of state of the United States, the United
Kingdom, Brazil, Italy, and Switzerland, who are not parties to the lawsuit, decided to create

7
a tribunal with five members, each of whom would be nominated according to the procedures
they established for neutral nations. The arbitral tribunal’s decision required the United
Kingdom to make a restitution payment, which it promptly did. In the last years of the
nineteenth century, the case served as an example of how arbitration may be used to resolve a
large issue and sparked a variety of new innovations, including:

 Increased usage of treaty provisions requiring the parties to submit any disagreements
to binding arbitration
 General arbitration treaties for the resolution of specific inter-State disputes should be
established.
 A proposal for a permanent international arbitral tribunal to avoid the need for ad hoc
tribunals for each dispute.

The PCIJ (1922-1946) was created by the League of Nations:

In accordance with Article 14 of the League of Nations Covenant, the League’s Council is
tasked with drawing up plans for the establishment of a Permanent Court of International
Justice, which will be able to hear any international dispute brought before it by the parties
involved as well as provide advice to the Council or Assembly on any such matter.

The League Council still had to take the required steps to implement Article 14. An advisory
committee of jurists was created by the Council during its second meeting, held early in
1920, and tasked with compiling a report on whether or not to establish the PCIJ. An
esteemed politician and professor, Baron Descamps (Belgium), was the Committee’s
chairman in The Hague. A draught legislation for the future Court was presented to the
Council in August 1920, and after some changes were made, it was sent to the League of
Nations’ First Assembly, which convened in November of that year in Geneva. The Third
Committee of the Assembly was tasked by the Assembly with looking at the Court’s
constitution. After a subcommittee studied the latter in depth, the Committee presented a new
document to the Assembly in December 1920. The Assembly unanimously accepted the
updated text, which became the PCIJ’s Statute. According to the Assembly, establishing the
PCIJ would need the official ratification of the Statute by each of the States participating in
the Assembly, rather than just a majority vote. At an extraordinary session of the League of
Nations on 13 December 1920, it resolved that the Statute should enter into effect as soon as
the protocol ratifying it had been signed by the majority of Member States. The protocol was

8
opened for signature on 16 December. The protocol had been signed and accepted by the
League’s members in large numbers by the time of the next Assembly gathering in
September 1921. Thus, the Statute came into effect. It was only updated once, in 1929, and
went into effect in 1936 under the new form.

To name just a few improvements to the old statute, the new one stipulated that judges for a
permanent international tribunal would be chosen by the League’s Assembly and Council
separately but concurrently, and that they would “represent the major forms of civilization
and major legal systems throughout the world.” In 1920, it was a significant accomplishment
to come up with this simple answer. On September 14th, 1921, the first elections were
conducted in the United States. The Peace Palace in The Hague was chosen as the permanent
location of the PCIJ after the Netherlands Government’s actions in the spring of 1919. On the
30th of January 1922, a preliminary session of the Court was opened at the Peace Palace, and
on the 15th of February 1922, its first sitting was place there under the presidency of Dutch
jurist Loder.

As a result, the PCIJ was a reality. Consider the following to comprehend the significance of
this development in the history of international legal processes:

 Written pleadings, entire transcripts of the hearings, as well as all documentary

evidence filed to the court were all made available for public consumption.
 PCIJ was open to all countries for judicial resolution of international disputes, and
they were entitled to declare in advance that for particular legal problems, they
accepted the Court’s jurisdiction as obligatory in reference to other countries that had
agreed to the same requirement.
 Any disagreement or subject brought to the PCIJ’s attention by the League of Nations
Council or Assembly might get an advisory opinion from it.
 Without prejudice to the Court’s jurisdiction to determine a matter ex aequo and bono
if the parties so agree on the sources of law it were to follow in adjudicating contested
situations and delivering advisory opinions, the Court’s Statute clearly noted.

Between 1922 and 1940, the PCIJ handled 29 contested matters between the states and issued
27 advisory opinions. More than a thousand agreements provide it exclusive authority to
resolve certain types of disputes. There were no more questions about the practicality or
effectiveness of a permanent international judicial tribunal. In a variety of ways, the Court

9
established its usefulness to the world community. Since its founding in 1922, the PCIJ has
been committed to developing a proper judicial procedure that has been expressed via the
PCIJ’s Rules of Court. Resolution on Judicial Practice of the Court established in 1931 and
updated in 1936 should also be mentioned. This set forth the internal process for the Court’s
discussions on every case. The PCIJ’s judgements have also helped to clarify and improve
international law while also resolving several major international conflicts, many of which
sprang from the First World War.

The ICJ is the principal judicial organ of the United Nations

War in September 1939 undoubtedly had major effects for the PCIJ, which already had been
suffering a period of decreased activity before to the conflict. On December 4th, 1939, the
PCIJ had its last public session, and no further judicial elections were held after that. The
Court was transferred to Geneva in 1940, with just one judge staying in The Hague, together
with a small group of Registry staff who were all Dutch citizens.

Following World War II, a new international legal system was born out of the resulting
upheavals. It was proclaimed in 1942 that a new international court should be established or
re-established after World War II, with the United States Secretary of State and British
Foreign Secretary expressing their support for such a court. An informal Inter-Allied
Committee was set up in London by the British Government in early 1943 to investigate the
issue. Under the leadership of Sir William Malkin (Britain), this Committee convened 19
sessions in which jurists from 11 nations participated.

With this proclamation, the Four Powers met in Dumbarton Oaks, where they exchanged
ideas, leading to the release on October 9, 1944, of suggestions for a global body to include
an international court of justice. In April 1945, a committee of jurists representing 44 states
convened in Washington, D.C. G. H. Hackworth (United States) chaired this committee,
which was tasked with drafting a draught statute for a future international court of justice to
be presented to the San Francisco Conference, which was drafting the UN Charter from April
to June of 1945. A number of issues, however, were left unresolved by the Committee since it
believed they belonged in the purview of the Conference: should a new court be established?
It’s unclear exactly how the court’s role as UN’s top court should be expressed. When should
a court’s jurisdiction be required, and how much? Is there a better way to elect judges? The
San Francisco Conference, which included representatives from all 50 states, reached final
judgments on these issues as well as the final form of the Statute. At that meeting, delegates

10
voted against mandatory jurisdiction and in favour of establishing a new court that would sit
alongside the General Assembly, Security Council, Economic and Social Council,
Trusteeship Council, and Secretariat as a principal organ of the United Nations, with its
statute formally attached to and forming part of the UN Charter.

Even Nevertheless, many in attendance at the San Francisco Conference stressed the need of
maintaining a strong connection to the past, especially given that the PCIJ’s Statute had been
crafted based on the lessons learned from previous cases. Because of this, it was made clear
that, as much as practicable, PCIJ’s authority would be transferred to the ICJ’s jurisdiction in
its Charter, which clearly stated this. Once again, the Peace Palace was the chosen location
for the new International Court of Justice (ICJ), which took over the archives and effects of
both the PCIJ and Peace Palace. First, the members of the PCIJ officially resigned on January
31st, 1946, and on February 5, 1946, during a United Nations General Assembly and Security
Council session, the International Court of Justice was established. The PCIJ was officially
disbanded in April 1946, and the ICJ convened to designate Judge Guerrero, the PCIJ’s last
president, as its president and select the members of its Registry (largely from among former
officials of the PCIJ). The new Court convened for the first time in public on April 18, 1946.

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 CHAPTER-III

ROLES--FUNCTIONAL DUTIES OF THE INTERNATIONAL COURT OF JUSTICE

ROLES:

The International Court of Justice (ICJ) superseded the Permanent Court of International
Justice (PCIJ) after World War II as the primary judicial instrument of the United Nations
(UN), as stipulated in Article 92 of the UN Charter. This new court is, in effect, a
continuation of the permanent court, with the same statute and authority and no difference
between matters determined by the PCIJ and ICJ. According to Article 2 of the Statute of the
International Court of Justice, the court is composed of fifteen members chosen from among
individuals of high moral character who meet the requirements in their respective countries
for appointment to the highest judicial offices. Members are elected without regard to
nationality.

The Root-Phillimore Plan of 1920 was used to choose the justices of the International Court
of Justice. Therefore, the General Assembly and Security Council choose judges from a list
of nominees made up by the member nations of the United Nations. There are fifteen judges,
five of them are chosen every three years. When it comes to choosing the International Court
of Justice’s justices, the General Assembly and the Security Council work closely together.
According to Article 9 of the ICJ Statute, it is important to remember that the ICJ should
reflect all major forms of civilisation and the major legal systems of all countries.

Every nine years, the International Court of Justice elects its members, who are eligible to run
for re-election. Diplomatic immunity and perks are granted to them when on official
business. A judge cannot be fired unless the other members of the court unanimously agree
that he no longer has the necessary qualifications. Every ICJ judge is not prohibited from
serving in any political or administrative capacity, nor may they participate in any other
professional activity. In no situation may a judge serve as an agent, advocate, or counsel.
President and Vice President of the International Court of Justice (ICJ) are chosen for three-
year terms that may be extended once. There’s a courthouse in The Hague where the
International Court of Justice meets (Netherlands).

The International Court of Justice’s jurisdiction: The International Court of Justice (ICJ) is a
judicial body that uses international law to determine issues. Because it is not a legislative

12
body, it is unable to enact legislation. An earlier ICJ ruling, Legality of Nuclear Weapons
Threat or Use (1996), said that it just outlines the current law and did not legislate.

ICJ is the watchdog of international law, as established in the seminal Lockerbie case (1992)
ICJR (International Court of Justice Review). Art. 36(2) of the ICJ’s Statute stipulate that a
case must include a legal issue before it may be heard. There must be a disagreement for a
court to perform its judicial duty, according to ICJR (1974) Nuclear Test case. An argument
about a legal or factual matter is simply referred to as a “legal dispute.” Controversial,
mandatory, and advisory powers are all granted to the ICJ.

A. Contentious Jurisdiction:

The term “contentious jurisdiction” refers to the ICJ’s jurisdiction based on the parties’
mutual agreement. In the Nicaragua decision (1986) ICJR, the ICJ said that the court’s
jurisdiction in disputed proceedings is based on the agreement of the parties to the dispute.
However, the consent does not need to be in any specific form, and in certain cases, the court
will infer it from the actions of the parties. An agreement was assumed by the court in a
Corfu Channel Case11 between the United Kingdom and Albania because of the plaintiff
state’s U.K. application and letters from the defendant Albania. Forum prorogatum is the
legal term for this principle.

A well-established principle of the International Court of Justice (ICJ) was cited in the case
of Cameroon vs. Nigeria12, in which the Court ruled that it could not rule on the legal rights
of third persons who were not parties to the dispute. Because Indonesia is not involved in the
dispute, the International Court of Justice was unable to pronounce on the legality of
Indonesia’s actions in relation to East Timor13. The International Court of Justice (ICJ) has
jurisdiction over disputes that may arise from the interpretation and implementation of
bilateral and multilateral treaties, although this is not the only instance where the ICJ has
been granted authority.

The International Court of Justice (ICJ) established its jurisdiction in Bosnia vs. Yugoslavia14
on the basis of Article 9 of the Genocide Convention. On the basis of a treaty clause in
Nicaragua vs. the United States15, Art. XXIV (2) of the 1956 US-Nicaragua Treaty of
11
(1948) ICJR
12
(2002) ICJR
13
(1995) ICJR
14
(1996) ICJR
15
(1984) ICJR

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Friendship, Commerce, and Navigation established the court’s jurisdiction in that case. ICJ
noted in Nicaragua v. Honduras16 that jurisdiction was an issue of law and reliant on the
purpose of the parties, and that the existence of jurisdiction was a matter of law. On the basis
of Art. 31 of the Pact of Bogota, 1948, the Court concluded that the parties intended to do so.

B. Compulsory Jurisdiction:

ICJ Statute Art. 36(2) are critical to the expansion of ICJ’s authority. As long as a state is a
party to this act, it states that the ICJ’s authority over any and all legal issues relating to;

(a) The interpretation of a treaty,

(b) Any question of international law,

(c) The existence of any fact amounting to breach of an international obligation and

(d) The nature or extent of reparation (damages) to be made for the breach of an international
obligation. This provision was intended to operate as a method of increasing the Courts
jurisdiction, by gradual increase in its acceptance by more and more states.

C. Advisory Jurisdiction:

An advisory role belongs to the International Court of Justice (ICJ), which may provide
advice to the General Assembly, the Security Council, or any member state. The Court
recently made a decision in the Legality of Israel’s Wall case, in which Israel argued that it
was exercising its right to self-defence against Hamas terrorist assaults in Palestine by
building a wall. The Court, however, noted that the wall in question is in direct conflict with
recognised international law norms. Israeli authorities have proceeded to build the wall
despite this judgement being non-binding. International peace and security have been
maintained as a result of the ICJ’s restricted authority resolving key international conflicts in
this way. It is, nevertheless, necessary to create a wing for people implicated in terrorist
operations and human rights violations.

16
(1988) ICJR

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FUNCTIONS OF ICJ:

In legal research, it is usual and good practise to investigate a phenomenon’s contribution to

orderly and peaceful social interaction. This perspective on domestic courts has yielded
several insights17. Using that technique and body of knowledge, we examine international
courts, which we define as entities that make binding judgments using legal standards and
processes18. “Applying the law” by a court generally involves a series of societal effects,
which might be considered as functions.

A system or institution can only have one purpose, according to a popular strand of functional
analysis19. So, in a nutshell, international courts adjudicate. Those seeking a deeper
understanding of the phenomena will instantly demand that the function be defined in greater
detail. Many writers, like us, use the plural “functions” to convey the social effects of
adjudication20.

Moreover, functions are not limited to what institutions are legally required to perform.
Functions might sometimes be in conflict, and priorities can alter over time 21. Notably, a
functional analysis differs from a normative evaluation. The structure of social interaction is
obviously a big topic. The scope of domestic courts is typically limited by the polity and its
inhabitants. Many domestic courts across the globe start their judgements with formulas like
“in the name of the people” or “in the name of the king”, who express this reference point as
the important totality. Comparatively, assessing the functional analysis of foreign courts is
more difficult. Unlike many domestic courts, foreign courts have no analogous formula 22.
Should international courts judge in the name of the governments that formed them, the
international community, a certain legal framework, or even transnational or cosmopolitan
citizens? Despite this fundamental ambiguity, we may nonetheless identify and differentiate
four basic roles.

17
Martin Shapiro, Courts: “A Comparative and Political Analysis. A Comparative and Political Analysis,”
University of Chicago Press, Chicago 1981
18
We notably include judicial institutions such as the WTO Appellate Body and panels even if they do not
formally take decisions but issue reports, see Art. IV (3) WTO, Arts. 16 and 17 Dispute Settlement
Understanding (DSU). See Cesare Romano, “A Taxonomy of International Rule of Law Institutions”, 2 Journal
of International Dispute Settlement 241 (2011), pp. 251-254
19
In these articles authors have told Michael Esfeld, “Funktion”, in: Petra Kolmer and Armin G. Wildfeuer
(eds.), 1 Neues Handbuch philosophischer Grundbegriffe, Alber, Freiburg 2011, pp. 842-854.
20
Klaus F. Röhl, Rechtssoziologie, Carl Heymanns, Köln 1987, 520-521. Cf. Dinah Shelton, “Form, Function,
and the Powers of International Courts”, 9 Chicago Journal of International Law 537-571 (2009), 542
21
Yuval Shany, “Assessing the Effectiveness of International Court of Justice: A Goal-Based Approach” 106
American Journal of International Law 225-270 (2012)
22
National Courts and the International Rule of Law, Oxford University Press, Oxford 2011, pp. 9-10

15
1. Settling disputes

A primary purpose is to resolve individual disputes. It hopes that the authority of court
rulings would put a stop to a debate that may otherwise escalate into a violent conflict. While
this is incomplete, the role of resolving conflicts remains paramount. International courts
provide “an alternative to direct and amicable resolution of such disputes between the
parties23” (Ch. VI UNC). Article 38 of the ICJ Statute states that the court’s “role is to
determine the issues brought to it24.”

This Court’s role is to settle international legal issues between States, not to operate as a court
of criminal appeal. While the court’s declaration about what it is not is clear, the solitary role
of resolving disputes is deceptive. The complete significance and importance of an
institution’s or decision’s practise may be missed if just one function is considered. A classic
instance explains it well.

Stabilizing Normative Expectations:

It seems dubious that the ICJ’s landmark Nicaragua verdict helped resolve the US-Nicaragua
conflict25. As a result of the court’s judgement, the US withdrew its unilateral
acknowledgment of the court’s authority. But when the ruling is seen in terms of sustaining
normative expectations, a second key purpose of international tribunals, a different picture
emerges. Contrary to the two superpowers’ conduct at the time, the verdict reaffirmed the
legitimacy of one of international law’s core precepts - the prohibition of force. The ruling
reinforced international law as a peaceful system that does not bend to the mighty.

As a result, the Nicaragua ruling strengthened the normative standards around the use of
force. According to the Greek historian Thucydides, “the powerful do what they can, and the
weak endure what they must.” It is commonly agreed that one of the most important roles of
law is to maintain normative expectations, especially when they are violated. It is unusual to
exclude this contribution from the court’s responsibilities, given the fame of the Nicaragua
ruling. The old paradigm’s flaws and inability to stabilise normative expectations are clear

23
ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Denmark and Netherlands), Judgment of
20 February 1969, ICJ Reports 1969, p. 3, para. 87, with reference to the PCIJ, Free Zones of Upper Savoy and
the District of Gex, Order of 19 August 1929, Series A, No. 22, p. 3, at 13. Cf. Georges Abi-Saab, “Cours
général de droit international public”, 207 Recueil des Cours 9 (1987), at 229
24
ICJ, LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, ICJ
Reports 1999, p. 9, para. 25
25
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment of 27 June 1986, ICJ Reports 1986, p. 14

16
when it comes to international criminal courts. The ICTY did not resolve any issues between
accused Mr Tadic and prosecutor Carla del Ponte26.

The purpose of sustaining normative expectations necessitates some legal enforcement,

according to international criminal justice. True, compared to the domestic level, the
international order has few coercive measures that may be employed to ensure conformity
with international judgments. The Security Council may use coercive measures under UNC
94(2) if disrespect for ICJ judgements undermines international peace and security. In reality,
however, non-compliance with ICJ or other court orders seldom results in coercive
measures27.

But limiting enforcement to coercion would be a mistake. International courts are typically
immersed in settings that support judicial judgments. The Ministerial Committee of the
Council of Europe supervises the implementation of ECHR judgements 28. - Panel decisions
are enforceable in domestic courts as if made by the highest level of domestic authority 29.
Other types of enforcement that rely on courts and their authority in international legal
discourse may be as effective30. Contravening an international ruling usually results in a loss
of reputation. In this context, political science research suggests that international tribunal’s
assist resolve collective action issues by signalling trustworthy commitments 31.

3. Making Law:

The Nicaragua judgement not only helped stabilise normative expectations, but also helped
“develop” international law32. The ruling has consistently backed legal arguments for a broad
ban on force and a restrictive understanding of the right to self-defence. It enriched the
normative essence of international law. Some organisations are required by international law

26
Prosecutor v. Dusko Tadic, IT-94-1-AR 72, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction of 2 October 1995
27
Hermann Mosler and Karin Oellers-Frahm, “Article 94”, in: Bruno Simma (ed.), The Charter of the United
Nations: A Commentary, Oxford University Press, Oxford 2002, pp. 1174-1179, at 1176
28
Art. 46(2) European Convention on Human Rights (ECHR)
29
Art. 54 Convention on the Settlement of Investment Disputes between States and Nationals of other States
(ICSID-Convention)
30
Art. 54 Convention on the Settlement of Investment Disputes between States and Nationals of other States
(ICSID-Convention)
31
Clifford J Carrubba, “Courts and Compliance in International Regulatory Regimes”, 67 Journal of Politics
669-89 (2005)
32
Ingo Venzke, “The Role of International Courts as Interpreters and Developers of the Law: Working out the
Jurisgenerative Practice of Interpretation” 34 Loyola of Los Angeles International and Comparative Law
Review 119-51 (2012)

17
to “provide security and predictability 33,” as stated in Article 3(2) of the WTO’s Dispute
Settlement Understanding. To the extent that its prior rulings “create genuine expectations”
among members and market participants34, the Appellate Body cited this paragraph.
International courts are consequently charged with developing normative expectations 35.
Aspects of judicial activity that generate new legal normativity or simply law-making.

The law-making influence of court rulings has two distinct aspects. One is the creation of
legislation between the parties, based on applying relevant rules to the circumstance. Aspect
of judicial law-making at issue here goes beyond the case at hand. Courts contribute to the
law by their decisions, their reasoning (ratio decidendi), and their obiter dictum (side dicta) 36.
In reality, it seems that a number of recent judgments try to influence the public legal
discourse by establishing abstract and categorical pronouncements as authoritative legal
reference points. Justifying a decision is a legal obligation, but it has gained prominence in
recent decades due to factors such as mandatory jurisdiction and increased usage.

Of course, judicial law-making differs from formal legislation. Judicial judgments have a
different effect on the legal order than new legal provisions. Decisions are arguments that
affect the law via legal discourse. The law-making impact of court judgments depends not
only on the volantes but also on their ratio. But foreign rulings have a special status in legal
conflicts and thereby help make the law. Courts often use precedents in legal arguments and
explain why they are relevant or not. Thus, judicial precedents redistribute argumentation
burdens in law37. The absence of this law-making role signifies a loss of a key part of the
international legal order’s dynamism. As a result, international courts’ procedural law should
be understood and evolved to fulfil this duty.

4. Controlling and legitimating public authority:

Consider international courts in relation to other public authorities that need control and
legitimacy, i.e. from a separation of powers or checks and balances viewpoint. Vertically,
international courts check local power against international law. The classic example is the

33
“Barcelona Traction at 40: The ICJ as an Agent of Legal Development”, 23 Leiden Journal of International
Law 781 (2010)
34
Appellate Body, Japan–Alcoholic Beverages (II), WT/DS 8, 10 and 11/AB/R, Report of 4 October 1996, pp.
14‐ 15
35
Christopher G. Weeramantry, “The Function of the International Court of Justice in the Development of
International Law”, 10 Leiden Journal of International Law 309 (1997)
36
Von Bogdandy, Venzke, supra note 7, p. 987; Marc Jacob, “Precedents: Law making Through International
Adjudication”, 12 German Law Journal 1005 (2011), at 1029
37
Art. 56(1) Statute of the International Court of Justice (ICJ-Statute)

18
International Human Rights Court, but others have joined. For example, judicial practise has
developed international trade law to include precise regulatory prescriptions. Notably,
domestic regulations that seem to violate WTO rules may be contested before they are
implemented by a WTO member without having to prove a personal legal interest 38. The duty
of managing domestic public power extends to ICSID tribunal rulings. They often fill a void
in the host country’s administrative or constitutional adjudication.

Many international courts have established principles like proportionality analysis, which
originates from administrative and constitutional justice. By using such rules, international
courts may carefully regulate domestic. They enter the realm of political decision-making
formerly reserved for administrations or legislatures.

Controlling domestic authority contributes in many constellations to its legitimation

An impartial institution’s evaluation of public activities against universal criteria is a potent

legitimising tool. For this reason, many domestic constitutions provide international treaties
and associated tribunals a special domestic role, especially in human rights protection.
Determining procedural rules for more equitable domestic administrative and regulatory
procedures helps legitimise domestic governmental power that effects foreigners.

The international level has less horizontal control and legitimacy of power. Currently,
international courts play a minor part in the institutional structure of international law. While
the ICJ’s potential function as a Security Council check has been debated, the court has so far
resisted39. But there are more examples. An inspection panel of the World Bank, as well as
other internal administrative tribunals, demonstrate possibilities for control and
legitimization. Indeed, the ICJ’s advisory authority was intended “to address constitutional
issues emerging in a future general international organisation”. Fundamentally, international
courts may help legitimise the legal system they are part of. Finally, the Nicaragua verdict
helped legitimise the international legal system in the eyes of emerging governments and a
larger international society.

38
Art. 16(4) WTO-Agreements; Appellate Body, EC - Bananas III, WT/DS27/AB/R, Report of 9 September
1997, paras. 132-135
39
Prosecutor v. Dusko Tadic, IT-94-1-AR 72

19
 CHAPTER-IV

ENFORCING THE DECISIONS & REASONS FOR NOT?

Enforcement of the ICJ Judgments

There is a sense that the International Court of Justice is defeatist in its position and
conclusion in the Haya deal Torre case. However, the idea that the International Court of
Justice has a defeatist attitude towards its function is not entirely accurate. The Court in this
case resolved the issue posed by Columbia and Peru on the execution of the Court’s ruling of
November 20th, 1950.

In the case of Congo Vs Belgium40 According to the court, it is not its business to make
choices among several options as to how to resolve the asylum issue, and that the courses that
were opened for compliance with the Court judgement would be based on the facts and
possibilities, and that the parties are in a position to decide.

The Court further suggested that the parties should decide how to implement the Court’s
judgement or conclusion. Thus, the Court’s passive attitude may not be entirely
inappropriate, particularly when the parties might choose to settle outside the Court’s
jurisdiction and then report to the Court for consent judgement. Thus, the Court deems that
the litigating parties execute its judgement. The aggrieved party should not have gone to
court in the first place, since by going to court and having the other party reply, the parties
expect a coercive power of law capable of forcing execution of whatever verdict is made.

Similarly, the Court found Belgium in breach of its international obligations relating to
Congo when it issued an arrest warrant against the Foreign Minister of Congo, and the Court
considered that “Belgium must, in its own discretion, cancel the warrant in question and thus
inform the authorities of In this instance, the Court was clear in its instruction to Belgium and
did not leave the choice to the parties.

From the aforementioned ruling, it is clear that although the Court must allow parties to select
a fair approach to resolve their disputes, it must also issue definite pronouncements when
necessary. Burkina Faso against Mali lent credibility to this perspective. In this instance, the
Court’s chamber was asked to designate experts to advice on how to implement the Court’s
ruling. It further said that “there is nothing in the Court’s statute or settled jurisprudence

40
ICJ Rep (2001) para 76

20
which prevents the chamber from using this power, whose very purpose is to enable parties to
achieve a final settlement of their disputes in the implementation of the judgement which

In the case of Burkina Faso Vs Mali41 According to the above logic, the Court has no duty to
direct the parties as to how to enforce its decision, but it shows that the Court might and
should not fail to participate effectively in the process of ensuring compliance in the
enforcement of its decision.

As shown, the only way to enforce an international or national legal ruling is to file a fresh
lawsuit before a competent Court. The consent to jurisdiction of the ICJ under Article 36 of
the statute should include jurisdiction over the enforcement of its own decision, as well as
inherent jurisdiction of the Court under Article 60 of the statute, which requires the Court to
construct what its decision was. According to Article 36(2)(b) of the Court’s statute,
noncompliance is an international wrong that is recognised and consequently a justiciable
legal concern to be dealt with under international law. However, in his dissenting opinion in
East Timore Case 2, Judge Weeramantry argued that the Court’s competence is to adjudicate
and clarify the law, not to enforce and execute it.

Enforcement on Basis of Article 60 of the Statute:

It should be in the Court’s statute that a party who has won a case should be allowed to
reapply unilaterally (after a certain time) to the same Court asking for a declaration of non-
compliance and would therefore be:

1. Say it has obeyed the court’s order

2. Request an extension of time to comply with the decision by stating the grounds for the
delay.

3. It should seek cooperation via a counterclaim.

It is better to state outright that the above suggestion is untenable because, while it appears to
force a defaulting state party to comply, in reality and practise, it appears to be more
advantageous to a defaulting state party to take advantage of this opportunity and continue to
ignore the International Court of Justice’s judgement.

41
[1986] ICJ Rep 554

21
The fact that the Court’s Statute is part of the United Nations Charter may also encourage
amendments to the Court’s Statute. Unnecessary modifications may be made. Compare the
EU Treaty, the CIES Treaty on Economic Union and Articles 23-29 of the Court of Justices
of the African Community Statute.

It is crucial to remember that under Article 226 of the EU Treaty, the Commission may bring
a case before the European Court of Justice (ECJ) against any EU member state, seeking a
declaration that the state has failed to execute the judgement under the treaty, including
conformity with community law. Article 226 clearly states that once the Commission
determines that the unity legislation has been violated, the Court must provide a reasoned
ruling after hearing the defaulting state. A non-compliant state may still be brought before the
court, and the ECJ may require a lump sum payment or a penalty to be paid to a winning
state.

If the defaulting state still refuses to comply with the penalty and the first penalty fails to
induce compliance, the commission will take further proceedings and the ECJ will issue
another lump sum penalty.

A special agreement between the Republic of Benin and the Niger, signed on June 15, 2001
in Cotonou, came into effect on April 11, 2002, and was reported to the ICJ on May 3, 2002.
(i) The parties recognise as final and binding upon them the decision of the Chamber given
according to the current special agreement.

(ii) The parties have 18 months from the date of the judgement to complete the border works.

(iii) If the decision is not implemented properly, any party may appeal to the Court under
Article 60 of its Statute.

According to the parties before the Court, Article 60 of the Statute is sufficient for the
execution of judgments, as proven by the preceding case between Niger and Benin.

A party to the Agreement may approach the Court for interpretation or implementation of the
agreement according to Article 60 of the Court’s law, and the Court will now elaborate on the
execution of its verdict. The interpretation does not imply that the decision loses its res-
judicata validity. The Court’s interpretation of the ruling in this respect is merely to ensure
the Court’s integrity and effectiveness. The strategy may not be able to fully eliminate the
issue of non-compliance with court judgements, but it is a good way to ensure that the

22
judgement debtor comply with the court ruling, particularly because psychological public
pressure would have been applied to the said judgement debtor.

Even if the ICJ is not asked to rule on a specific issue, it should be allowed to do & so on its
own by urging that its decision be followed and notifying the judgement debtor that non-
compliance would result in penalties. During the time when Nigeria was withdrawing its
administration and military forces from the disputed areas, the Court observed that both
parties were duty bound to ensure that the judgement of the Court is carried out to the latter
and that the benefit of compliance is for peaceful existence and security.

Thus, the psychological pressure put on the judgement debtor by the highest judicial arm of
the UN is crucial and enhances to the court’s credibility. This impacts and puts pressure on a
recalcitrant state that may not want to comply with the Court’s ultimate rulings.

Enforcement on a Recalcitrant State:

The ICJ legislation is silent on what should happen or be done when a party refuses to
enforce or comply with the Court’s ruling.

Despite the omission in the ICJ legislation, a careful application and interpretation of the Act
and Article 99 (5) of the Rules of the Court 1978 might at least partially cover the void.

By virtue of Article 61 (3) of the ICJ’s Statute, the Court may demand prior compliance with
the judgment’s provisions. Article 99 (5) of the Rules of the Court 1978 states that if the
Court chooses to condition the entrance of the revision procedures on prior compliance with
the decision, it must issue the order accordingly.

A party seeking to postpone the implementation of the Court’s decision may utilise the
motion for revision of judgement to accomplish its goal, according to Hudson. As in
Hadkinson v Hadkinson42 and National Union of Marine Cooks and Stewards v
Arnold43, the substance of Article 61 (3) of the Statute of the Court is seen as being common
to judicial practise of some municipal judicial and legal systems; wherein a party may be
denied the right of appeal on the ground that he actually refused to comply with the lower
Court’s judgement.

42
(1952) All ER p. 567
43
348 US 37 (1954)

23
Enforcement through Article 53 of UN Charter:

Article 53(1) of the UN Charter states that no enforcement action under regional agreements
or by regional agencies shall be initiated without the Security Council’s authorisation. But,
does this section define “enforcement action” or “enforcement measure”?

The answer is that the law does not define “enforcement action” or “enforcement measures”.
What is meant by “enforcement action” and what is its scope under Article 53 of the UN
Charter, which may limit the regional organisations’ ability to enforce a particular
international obligation, such as the ICJ’s judgement, without prior Security Council
approval? Can it be claimed that “enforcement action” connotes “military action” or does it
include non-military actions such as economic sanctions and diplomatic sanctions? The
importance of the above issues is connected to the diplomatic and economic sanctions placed
on the Dominican Republic by the Organization of American States (OAS) in 1960 in
connection with its involvement in Venezuela. The Organization of American States finally
notified the Security Council of the penalties imposed under UN Charter Order 54, but the
Soviet Union requested that the penalty be approved by the Security Council first. The Soviet
Union objected because it feared that the OAS would implement economic penalties on Cuba
without the UN Security Council’s consent.

Moreover, the US argued that enforcement action refers to military action and does not
include diplomatic or economic sanctions. Interestingly, most Security Council members
agreed with this line of reasoning, but Poland and the USSR were missing.

In 1962, the OAS imposed economic and diplomatic sanctions on Cuba, which enraged the
USSR, which claimed the measures were illegitimate since they had not been approved by
the Security Council. However, both the US and the USSR invoked the Dominican Republic
example to support their arguments.

The Security Council members were inclined to agree that the two penalties were legitimate,
and that the measures taken by regional organisations should be safeguarded to ensure
effective execution of the principles and acts of the United Nations Charter.

Thus, any action done under Chapter VII and Articles 41 & 42 of the UN Charter is an
enforcement action, whether military or non-military in nature. Understanding that Article
53(1) of the UN Charter was designed to increase the enforcement procedure of international
law and to provide for additional methods to be used by the Security Council in order to

24
effectively act under the specific provisions stipulated in the UN Charter is important. In
other words, regional organisations are UN subordinate institutions. 3 Clearly, the Security
Council expects specific steps and actions to be performed by regional organisations only
when the Security Council approves and authorises them.

There seems to be a clear relationship between enforcement action under Article 53(1) of the
UN Charter and enforcement action performed by the Security Council, whether lawful non-
military enforcement or unilateral action by regional organisations. Article 52(1) of the UN
Charter emphasises the subject of regional organisations’ ability to deal with topics relevant
to the preservation of international peace and security as suitable for regional action.

Enforcement through International Regional Organization:

The political contacts of member nations in any international organisation are sure to cause
friction, crises, and conflicts, and both regional and international organisations acknowledge
this and have incorporated provisions in their founding documents for an amicable settlement
of international issues.

Other international regional organisations have taken steps to settle their issues amicably by
creating judicial institutions and other panels.

So we will focus on the relationship between the dispute settlement mechanisms available to
regional organisations and the issue of enforcement action vis-à-vis the measures available
when a recalcitrant state fails to comply with an international obligation; whether or not it
arose from regional or international legal instruments or from regional or international legal
instruments.

The League of Arab States, European Community, European Union, Organization of

American States, Council of Europe, and African Union will be emphasised above the
Organization of Islamic Conference. From the available information and historical
precedents, no consistent practise across regional organisations could be identified. This may
be due to political, structural, or cultural differences.

25
 CONCLUSION

No one can argue that the International Justice of Justice has yet achieved the worldwide
prominence that the US court system has. Some of today’s most destructive issues continue
to stoke emotions without meaningful access to the Court. The Court’s jurisdiction is still not
commonly recognised. But the Court’s accomplishments in resolving disputes and defining
law on subjects as fundamental as maritime claims to territory are significant in safeguarding
global peace and stability and starting to develop an international understanding of the rule of
law. The years when practically every state disregarded the Court are gone. The next task is
to ensuring that the Court can handle its increased workload fairly and efficiently, therefore
increasing its contribution.

26