International Court of

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

Organisation of Competence of Advisory

Procedure Amendment
the court the court Opinions
(Art 39-64) (Art 69-70)
(Article 2-33) (Art 34-38) (Art 65-68)
 Organisation of the Court

 Article 2 of ICJ statute- The ICJ is composed of 15 member – elected regardless of

their nationality, from among persons of high moral character, who possesses the
qualifications required in their respective countries for appointment to the highest
judicial offices, or are jurisconsults of recognised competence in International Law
 Appointment involves both legal and political elements
 The members are elected by the General Assembly and Security Council (voting
separately from a list of qualified persons drawn up by the national groups in the
case of UN members that are not represented in PCA. ( in reality GA and SC
coordinate between each other especially in the light of Article 9 requiring that
‘representation of main forms of civilisations and principle legal systems must be
assured)
 Elections take place once in every three years with respect to five judges each
time.
 Candidates must obtain an absolute majority of votes in both GA and SC and no
two successful applicants may be from same nationality
 continued ….
 Members are elected for 9 years and may be re-elected.
 They enjoy diplomatic privilege and immunity when on official business
 A Judge cannot be dismissed unless it is unanimous opinion of other members
of the court the he or she has ceased to fulfill the required conditions (eg the
member should not hold any political or administrative office or engage in
other professional activity or act as agent, advocate etc )
 The court elects a president and vice –president for a term of 3 years which
can be renewed.
 the parties to a dispute before the ICJ are entitled to choose a person to sit
as judge for the duration of that case, (ad hoc judge) if they do not have a
judge of their nationality on the panel ( this adversely affects independence
of the court- the reason for this is political legitimacy . The positive aspect of
this is that it increases resources available to the court to appreciate that
states arguments)
 continued

 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

 Mavrommatis Palestine Concessions (Jurisdiction ) case- ‘ a disagreement over a point

of law or fact, a conflict of legal views or of interests between two persons.’
 Interpretation of Peace Treaties- ‘two sides must hold opposite views .. It must be
shown that claim of one party is opposed by the other.’ (reaffirmed in Un
headquarters Agreement case , Application of the Genocide Convention Bosnia and
Herzegovina v Yugoslavia case)
 Denying the allegation would amount to having a dispute (El Salvador/Honduras case)
 Though parties will put forward their views, ultimately the court will determine the
subject mater of the dispute before it.
 If court finds that the dispute in question has disappeared by the time court makes a
decisions no decision will be given (nuclear Test Case )
 Types of Jurisdiction
 Contentious Jurisdiction
 Incidental Jurisdiction
 Advisory Jurisdiction

 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

 Meaning - Disputes are disagreements on a question of law or fact, a conflict,

a clash of legal views or of interests. Any resultant adversarial proceedings
before an international tribunal are known as contentious proceedings.
 Who can Bring the proceedings - Article 34- Only states can be parties in
cases before the court- No contentious case can be submitted before ICJ
unless both the applicants are states. Private interests can only form the
subject of proceedings before the court if a state exercising its right of
diplomatic protection takes up the case of its national and invokes against
another state the wrongs which its national claims to have suffered at the
latter’s hand. The dispute therefore becomes dispute between states. (eg.
Nottebohm, Vienna Convention on Consular Relations)
 Which States can bring cases before ICJ?
 Only states can bring cases befor ICJ (Article 34 of ICJ statute)
 Member states of the UN who signed the charter and thus at the same time became parties to the statute of the ICJ
 Those states who have become parties to the statute of the ICJ without signing the charter or becoming member of the
UN. (but they must satisfy certain conditions laid down by GA on recommendation of the SC) (article 93 of the UN
charter)
 Any other state while neither a member of the UN nor a party to the statute, has deposited with the registry of the ICJ a
declaration that meets the requirements laid down by the SC in resolution 9 (1946) pursuant to article 35(2) of the ICJ
statute whereby the state accepts the jurisdiction of the court and undertakes to comply in good faith with the courts
decision.
 The jurisdiction of the court so far as concerns the parties entitled to appear before it –ratione persone- covers states of
the above categories. A dispute to be validly submitted before the ICJ must be between the above categories of states.
 Note- Court has certain inherent powers flowing from its role as a judicial organ and this power includes ending
proceedings in a case on its own motion (in some cases, only two situations have been recognised in which court could do
that- however any such restriction has been criticised by other judges )
 Court cannot decide upon legal rights of third states not parties to the proceedings. (Monetary Gold case)
 (Naurau case- however the court held ‘ legal interests of third party which may possibly be affected should not form the
very subject matter of the decision that is applied for.’- if determination of the third state’s responsibility was a pre
requisite for the claims raised before the court by one party against another- it amounted to third party ‘s rights being
decided.
 A case can only be submitted to the court with the
consent of states concerned – How do states give
consent?

 No sovereign state can be made a party to proceedings before the court unless it has in some
manner or other consented thereto. It must have agreed that the dispute or the class of disputes in
question should be dealt with by the court. It is this agreement which that determines the
jurisdiction of the court in respect of that particular dispute. A recommendation by the Security
Council to refer the matter to ICJ will not be sufficient to confer jurisdiction on the court
independently of the parties to the dispute (Corfu Channel case)
 The various ways in which the states can express their consent for that particular dispute to be
brought before the ICJ are (article 36):
 Special agreements between parties to dispute to submit it to ICJ - most commonly used method- this
agreement is similar to arbitral compromise as it allows parties to define issues and indicate basis of
decisions subject to the provisions of statute (eg Litigan and Sipadan case Indonesia/Malaysia)
 Forum prorogatum- here the consent of a state to the court’s jurisdiction may be established by means of
acts subsequent to the initiation of proceedings – like in response to the unilateral reference of a dispute to
the court, the other party may agree to the jurisdiction of the court expressly or by conduct (example of
conduct- Corfu Channel case) , here consent should be ‘voluntary and indisputable’
 Continued…
 Compromissory clause in Treaties and Conventions – general practice in framing of treaties is to
include a clause on pacific settlement of dispute identifying the court as well (for instance ICJ), in
case judicial proceedings may be instituted. (compromissory clauses). In such cases signatories may
bring the matter before the ICJ either through unilateral application or through special agreement.
(see examples also on pg 820 of Malcolm Shaw)
 Optional clause– article 36 (2)- the state parties to the present statute may at any time declare that
they recognise as compulsory ipso facto and without special agreement in relation to any other state
accepting the same obligation the jurisdiction of the court in all legal disputes concerning
interpretation of a treaty, any question of international law, existence of any fact, which if
established would constitute a breach of an international obligation the nature or extent of the
reparation to be made for the breach of an international obligation. These are unilateral acts and to
be effective, are dependent upon reciprocity from other party who should also have deposited similar
unilateral declaration covering similar issues. It applies much as an agreement provided the other
party has also made similar declaration which covers the issue in dispute. Only one third of the Un
members have made declaration under article 36(2) (eg Arrest Warrant case Congo Vs Belgium) note
here that any reservation made wrt such clauses will have impact on jurisdiction of the ICJ.9 see
Nicaragua case, Aerial incident case etc)
Despite these agreements on bringing dispute to ICJ
–there are jurisdictional disputes before the ICJ
more often than not

 There is sometimes disagreement as to whether the states

concerned have given Court the necessary competence or not. In
such situation the question of jurisdiction is resolved by the Court
acting under Article 36(6) of the statute
 Jurisdictional disputes are raised in the beginning and therefore
form part of beginning stage of the proceeding
 A wide range of issues arise when the court is examining the
jurisdiction issues
 in passage over Indian Territory case, India had raised 6 objections all of which were rejected by
the Court
 - In Nicaragua case, the court accepted challenge to its jurisdiction as valid but that did not
remove its jurisdiction al together
 Incidental Jurisdiction- Interim
Measures (Article 41)
 Court has power to indicate interim measures of protection, to allow intervention and to
interpret and revise a judgment
 Interim measures of protection are governed by article 41 of the statute and are concerned
with the preservation of the parties rights which are the subject of dispute while litigation is in
progress.
 Their justification stems from the elementary juridical principle that the judgment of a court
should be effective and that to ensure this it may, while a case is before the court, be essential
to restrain parties from disrupting the situation.
 These measures are important because procedures are long drawn and to reduce chances of
further escalation of dispute.
 Because these powers are conferred by the statute, their exercise by the court does not require
a further expression of consent on the part of the states and in appropriate circumstances these
and other incidental powers can make a constructive contribution to settlement of dispute
 However, the court will not make an order of interim measures unless there is some instrument
which prima facie recognises its jurisdiction to decide the dispute
 Continued

 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.

 First time granted to Nicaragua in EL Salvador/Honduras case

 The intervening state does not need to demonstrate a basis of jurisdiction, since the
competence of the court is here not founded upon the consent of the parties as such but is
rather derived from the consent given by the parties in becoming parties to the court’s statute
to the court’s exercise of its powers conferred by the statute.
 The purpose of intervention is to protect a state’s ‘interest of a legal nature’ that might be
affected by a decision in an existing case already established between other states,
 No jurisdictional link between the parties to the dispute and the intervening state is required.
 Revision and Interpretation of
Judgment

 The power to revise a judgment is contained in Article 61 of the statute and

can only be exercised if new facts (which existed at the time of judgment
but was unknown ) come to light and these would have had a decisive effect
on the decision. The application must be made within 6 months of discovery
of facts and within 10 years of date of judgment
 Interpretation of judgment is a broader power according to Article 60 and
can be performed at the request of any party in the event of dispute as to the
meaning or scope of the judgment the object is only to seek clarification of
the meaning and scope of the judgment decided. Therefore request must
relate to operative part of the judgment. There must be a dispute with
respect to meaning and scope of judgment between the parties
 Advisory Jurisdiction of the Court


 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