Introduction
The International Court of Justice (henceforth ICJ) was established by the United Nations Charter, 1945, which was signed in San Francisco, United States of America. It began functioning in 1946 in the Peace Palace, The Hague, Netherlands. It is the principal judicial organ of United Nations (henceforth UN).i The official languages of the court are English and French. ii
Background
Even in classical times, international disputes have been settled through mediation and arbitration. Settlement of international disputes through international arbitration can be traced back to the so-called Jay Treaty of 1794, which was between the Great Britain and the United States of America. The Hague Peace Conference of 1899 set up a permanent machinery for international arbitral tribunals. The Permanent Court of Arbitration was set up in 1900 and started operating in 1902. The Convention was revised in 1907, during a second Hague Peace Conference which improved the rules which governed arbitral proceedings. However, the revised convention did not come into effect, but laid down the fundamental principles for the establishment of the Permanent Court of International Justice (henceforth PCIJ).iii
After the end of the first World War, through the mandate of Article 14 of the Covenant of the League of Nations, the formulation of PCIJ was to be devised by the Council of the League. The PCIJ came into operation in 1922 and contributed significantly to the growth and development of International Law. However, it ceased functioning in 1940 at the advent of the Second World War.
On 30th October 1943, a joint declaration was issued by the USSR, China, the United Kingdom and the United States of America for establishing an international court of justice at the earliest practical date. In pursuance of the declaration, a committee of 44 jurists was established in April 1945, headed by G.H. Hackworth to prepare the draft statute for the future ICJ. The Statute of ICJ was based on the Statute of PCIJ with some changes. All other significant decisions pertaining to the Statute were taken in the San Francisco Conference (April to June 1945). In October 1945, the PCIJ met for the last time and transferred all its cases to the ICJ. The first case was submitted to the ICJ in May 1947, which was brought by the United Kingdom against Albania.
Composition
The ICJ comprises of 15 judges with a 9-year tenure. They are elected by the General Assembly and the Security Council. Every three years, five posts are renewed, and judges may also be re-elected here. It is mandatory for all the judges to be from different countries. However, they are independent and not representative of their countries.Currently, the judges are distributed as per regions-
• 3 from Africa
• 2 from Latin America and Caribbean
• 3 from Asia
• 5 from Western Europe and other states
• 2 from Eastern Europeiv
The President and Vice President of the bench is elected for three years and may be re elected.v Absolute majority is required of the UN General Assembly and UN Security Council for the election of judges. Only those judges are eligible who have a high moral character, is eligible to meet the qualifications of being the judge of the highest judicial court in their respective nation and should have competence in international law.vi
There is also a provision for ad-hoc judges. When a country does not have a judge on the bench from their respective State in a case, they can choose an ad-hoc judge to serve on the bench. Such judge can be of any nationality and does not necessarily need to be from the State party. They have all the same rights and duties as an elected judge.vii
Functions
It has a two-fold role
1. To settle legal disputes between States, in accordance with the international law, submitted to it by them.
2. To give advisory opinion on legal issues referred to it by duly authorized UN organs and specialized agencies.viii
Jurisdiction- Voluntary, Compulsory, Advisory and Ad- Hoc
The ICJ has the following types of jurisdictions-
1. Contentious Jurisdiction- Article 36 of the Statute of the International Court of Justice provides for contentious jurisdiction. Only States which are either members of the United Nations or have become parties to the Statute of the Court may be parties.ix
a) Voluntary Jurisdiction- Any state may submit to the ICJ any dispute by agreement. In this type of jurisdiction, the consent of the parties while submitting to the jurisdiction of ICJ is necessary and is given before the concurrence of the dispute. The decision of the court is binding in these type of cases.
b) Ad- Hoc Jurisdiction- If the parties submit to the jurisdiction of the court after the dispute has occurred, the court will have ad- hoc jurisdiction. No special agreement is required before-hand in these cases.
c) Compulsory Jurisdiction- Clause 2 of Article 36 of the Statute of the International Court of Justice provides the compulsory jurisdiction of the court. In this type of jurisdiction, the court has the power to ipso-facto recognize a legal matter which is concerning
i) The interpretation of a treaty;
ii) Any question of international law;
iii) the existence of any fact which, if established, would constitute a breach of an international obligation;
iv) the nature or extent of the reparation to be made for the breach of an international obligation.x
In such cases, there is no need for a special agreement. The court has mandatory jurisdiction in cases where the matter was referred to the League of Nations or to the Permanent Court of International Justice.xi
2. Advisory Jurisdiction-Article 65 of the Statute of the International Court of Justice empowers the ICJ with advisory jurisdiction.xiiIt involves giving advice on the questions or concerns referred to it by the General Assembly, Security Council or any other specialized organ of the UN. However other specialized organs can only seek opinion with respect to legal matters that arise within the scope of their activities.xiii These advisory opinions are not binding. The court can hold written and oral proceedings to determine such issues.xiv
Procedure
The Procedure to be followed in the court has been enumerated in Chapter III of the Statute of ICJ. The ICJ decides cases in accordance with international treaties and conventions that are in force, international customs, general principles of law, judicial decisions and the teachings of highly qualified publicists.
The following procedure is generally followed in contentious casesxv-
1) Written phase- The parties present their case in a written form. It can include memorial submission, counter-memorial and rejoinder or reply. This process is quite lengthy and depends on the complexity of the dispute.
2) Oral Phase- This consists of public hearings. The judges have the right to put questions after the conclusion of the pleading or hearing session of a party. The parties may reply to these questions in oral or written form.
3) Deliberations- All the members of the court deliberate over the matter and draft the judgement. Generally, the judgement is pronounced within 6 to 9 months after the end of the hearing.
4) Judgement- The judgement is delivered after the deliberations. Such judgement is binding, final and non-appealable.
The parties can also withdraw from a case or reach a settlementat any point before the judgement.
Enforcement of the Decision of the ICJ
As per Article 94 of the UN Charter, all member States are bound to comply with the decision of the ICJ. Though non-compliance is rare, however, where a party fails to comply to the decision of the court, the aggrieved party can enforce the judgement with the help of the Security Council. The Security Council can make recommendations or decide upon measures to be taken for the execution of the judgement.xvi The enforcement is subject to the veto powers of the permanent members of the UN Security Council(i.e. France, United Kingdom, United States of America, China and Russia).
Limitations on the Functioning of ICJ
1) The ICJ only has jurisdiction with respect to cases where there is consent of both the parties. However, it cannot do anything if the parties don’t submit to the jurisdiction of the court. Thereby, leaving out some legal disputes which are of grave importance. It
cannot even take up suo motto cognizance of a case (except those mentioned under Article 36(2) of the Statute of the International Court of Justice).
2) Since only States can be parties to a dispute referred to the ICJ, individuals, minority groups or organizations cannot approach the court even in cases where the minority group is being exploited by their State.
3) Though the decision is binding on the States, due to the lack of separation of powers, a decision of the ICJ can be vetoed by the permanent members of the Security Council. Even if the States consented to be bound by a particular judgement, they can veto it in the Security Council and make it unenforceable.
4) The Court does not have superiority to the other International Courts. This leads to an anomalous situation if two different courts arrive at different decisions. 5) ICJ cannot try criminal cases which include crimes against humanity or war crimes. This considerably limits the jurisdiction of the court in criminal matters.
6) The judges of ICJ have been accused of being prejudiced and giving decisions in favor of their own countries. Such bias is also prevalent during the election process of the President and Vice President of the Bench.xvii
7) The Member States of the UN are not bound to approach the ICJ in case of a dispute and may refer to other tribunals as well.xviii This undermines the power of the ICJ.
Conclusion
The ICJ has been quite effective in its role to maintain peace and settle disputes amongst the States. Nevertheless, there are certain limitations like bias and enforceability which can be improved for the effective functioning of ICJ. The jurisdiction of the court should be interpreted broadly and strong measures should be used for the enforcement of the decisions of the court.
Vanya Agarwal,
University of Petroleum and Energy Studies
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