International Court of Justice

What is the International Court of Justice (ICJ)?

• The ICJ, established in 1945, is the principal judicial organ of the United Nations (UN) which started working in April 1946.
• It is headquartered in The Hague, Netherlands.
• It settles legal disputes between states and provides advisory opinions on legal questions referred to it by the UN General Assembly, the UN Security Council, and other specialized agencies and international organizations.
• It has 193 state parties, and the current President is Joan E. Donoghue and Vice- President is Kirill Gevorgian.

What is the History of ICJ’s Formation?

• The idea of an international court to settle legal disputes between states was first proposed during the negotiations that led to the establishment of the League of Nations after World War I.
• The Permanent Court of International Justice (PCIJ) was established in 1920 as the judicial arm of the League of Nations under Article 14 of the Covenant of the League of Nations.
• The PCIJ functioned from 1922 to 1940 and dealt with a number of cases, providing advisory opinions and settling disputes between states.
• G.H. Hackworth (United States) committee was entrusted with preparing a draft Statute for the future ICJ in 1945.
• The PCIJ met for the last time in October 1945 and resolved to transfer its archives and effects to the new ICJ, which, like its predecessor, was to have its seat at the Peace Palace.
• In April 1946, the PCIJ was formally dissolved, and the ICJ, meeting for the first time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last President of the PCIJ.

What is the Structure of ICJ?

• The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately.
• In order to be elected, a candidate must receive an absolute majority of the votes in both bodies.
• In order to ensure a measure of continuity, one third of the Court is elected every three years and Judges are eligible for re-election.
• ICJ is assisted by a Registry, its administrative organ. Its official languages are English and French.
• Unlike other organs of international organizations, the Court is not composed of representatives of governments. Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.
• In order to guarantee his or her independence, no Member of the Court can be dismissed unless, in the unanimous opinion of the other Members, he/she no longer fulfils the required conditions. This has in fact never happened.

What about ICJ’s Jurisdiction and Functioning?

• ICJ acts as a world court with two-fold jurisdiction i.e. legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).
• Only States which are members of the United Nations and which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions, are parties to contentious cases.
• States have no permanent representatives accredited to the Court. They normally communicate with the Registrar through their Minister for Foreign Affairs or their ambassador accredited to the Netherlands.
• When they are parties to a case before the Court they are represented by an agent. Since international relations are at stake, the agent is also as it were the head of a special diplomatic mission with powers to commit a sovereign State.
• The judgment is final, binding on the parties to a case and without appeal (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision).
• By signing the Charter, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party.
• A State which considers that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment.
• The procedure described above is the normal procedure. However, the course of the proceedings may be modified by incidental proceedings.
• ICJ discharges its duties as a full court but, at the request of the parties, it may also establish ad hoc chambers to examine specific cases.
• Advisory proceedings before the Court are only open to five organs of the United Nations and 16 specialized agencies of the United Nations family or affiliated organizations.
• Opinions provided by the court in advisory proceedings are essentially advisory and not binding.

What are the Limitations on the Functioning of ICJ?

• ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the material resources made available to the Court.
• It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.
• It differs from the Courts which deal with allegations of violations of the human rights conventions under which they were set up, as well as applications from States at which courts can entertain applications from individuals, that is not possible for the International Court of Justice.
• The jurisdiction of the International Court of Justice is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS).
• The Court is not a Supreme Court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.
• The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on the acts of sovereign States as it chooses.
• The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.
• It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

What is the Common Procedure of Resolving a Dispute in ICJ?

• The court follows a structured and formalized process in handling cases.
• Contentious cases typically begin with the submission of a written application or memorial by one state against another.
• The respondent state then submits a counter-memorial.
• After the exchange of written pleadings, the court holds oral hearings where both parties present their arguments and respond to questions from the judges.
• The court has only two languages, hence all the material in writing and said orally during the proceedings gets translated.
• The judgment is then delivered in a public session, and the court's decisions are binding on the parties involved.
• The institution of a case can also be done through the notification of a special agreement between the parties involved.
• In matters of Advisory cases, the United Nations General Assembly and Security Council may request advisory opinions on a legal question and after concluding the case the opinion is delivered at a public sitting.
• While the court lacks its own enforcement mechanism, states are expected to comply with its rulings as a matter of international law. Failure to do so may lead to diplomatic and political consequences.

What are the Cases Where India was Involved with the ICJ?

• Portugal v. India (1960):
  • This case involved Right of Passage over Indian Territory.
  • ICJ held that “India's refusal of passage was covered by its power of regulation and control of the Right of Passage of Portugal”.
• India v. Pakistan (1972):
  • The case involved an appeal relating to the jurisdiction of the ICAO Council.
  • The ICJ held that it had jurisdiction to hear the appeal filed by Government of India.
• Pakistan v. India (1973):
  • The involved Trial of Pakistani Prisoners of War where Pakistan informed ICJ that it came to an agreement with India regarding that issue.
• Pakistan v. India, culminated (2000):
  • It involved aerial incident of 10th August 1999
  • ICJ dismissed the claim of Pakistan and rule in favor of India with 14-2 ratio.
• Marshall Islands v. India (2016):
  • It involved obligations concerning negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament.
  • ICJ ruled in favor of India with 9-7 ratio and dismissed the case.
• India v. Pakistan (2017):
  • This case involved an Indian national, Kulbhushan Jadhav, who was arrested in Pakistan and accused of espionage.
  • In 2019, the ICJ ruled in favor of India, stating that Pakistan should review and reconsider the conviction and sentence of Jadhav and provide consular access to him.