|
After the
Second World War the Permanent Court of International Justice (PCIJ)
was replaced by the International Court of Justice (ICJ), which is
the principal judicial organ of the UNO according to Art.92 of the
UN Charter. As rightly stated by M.Shahabuddin, in essence, it is
a continuation of the permanent court with virtually the same
statute & jurisdiction with no distinction being made between the
cases decided by the PCIJ & ICJ. According to Art.2 of the Statute
of ICJ, it is composed of fifteen members elected regardless of
their nationality, from among persons of high moral character, who
possess the qualifications required in their respective countries
for appointment to the highest judicial offices. The judges of ICJ
are elected on the basis of the Root-Phililmore Plan given in
1920. Accordingly, the judges are elected by the General Assembly
& Security Council from a list of persons drawn up by the member
states of UNO. Out of fifteen, five judges are elected every three
years & continuity is maintained. There is a close co-ordination
between General Assembly & Security Council in electing the judges
of ICJ. Art.9 of the Statute of ICJ says that electors must keep
in mind not only that the persons to be elected should
individually possess the required qualifications, but also that in
the ICJ the representation of all the main forms of civilization &
of the principal legal systems of the world should be assured. The
members of the ICJ are
elected for every nine years & may be re-elected. They enjoy
diplomatic privileges & immunities when on official business. A
judge cannot be dismissed unless it is the unanimous opinion of
the other members of the court that he has ceased to fulfill the
required conditions. No judge of ICJ can exercise any political or
administrative function or engage in any other professional work.
No judge can act as agent, advocate or counsel in any case. The
ICJ elects a President & the Vice President for a three year term,
which can be renewed. The ICJ is situated at The Hague
(Netherlands).
Jurisdiction of ICJ:
The ICJ is a
judicial institution that decides cases on the basis of
international law as it exists on the date of the decision. It
cannot formally create law as it is not a legislative organ. In
the case of
Legality of
the threat or Use of Nuclear Weapons case
(1996) ICJR, the ICJ held that it states the existing law & does
not legislate. As stated in the landmark
Lockerbie case
(1992) ICJR, ICJ is the guardian of of legality for the
international community. Art.36(2) of the Statute of ICJ requires
that a matter brought before it must be a legal dispute. In
Nuclear Test case (1974) ICJR, the ICJ held
that the existence of a dispute is the primary condition for the
court to exercise its judicial function. A legal dispute simply
means disagreement over a point of law or fact. The ICJ enjoys
contentious, compulsory & advisory jurisdiction.
A.
Contentious Jurisdiction:
The
jurisdiction of ICJ founded upon the consent of the parties is
known as the contentious jurisdiction. In
Nicargua case
(1986) ICJR, the ICJ held that it is a fundamental principle that
the consent of the state parties to a dispute is the basis of the
courts jurisdiction in contentious cases. However, the consent
need not be in any particular form & & in certain circumstances
the court will infer it from the conduct of the parties. In
Corfu Channel
Case
(1948) ICJR between UK & Albania, the court inferred consent from
the unilateral application of the plaintiff state U.K coupled with
subsequent letters from the other party Albania. It is known as
the doctrine of forum prorogatum.
In
Cameroon vs.
Nigeria
(2002) ICJR, the ICJ stated that it is a well-established
principle that the Court will exercise jurisdiction over a state
only with its consent & therefore cannot decide upon legal rights
of third states not parties to the dispute. In
East Timor
case
(1995) ICJR, the ICJ held that it could not rule on the lawfulness
of Indonesia's conduct with regard to East Timor as Indonesia is
not a party to the dispute.
Apart from
this kind of contentious jurisdiction, quite a large number of
bilateral & multilateral treaties contain a clause awarding
jurisdiction to the ICJ with respect to questions that may arise
from the interpretation & application of the agreements. For
instance, in
Bosnia vs.
Yugoslavia
(1996) ICJR,
the ICJ founded its jurisdiction upon Art.9 of the Genocide
Convention. Similarly, in Nicaragua vs. US (1984) ICJR, the court
founded its jurisdiction on the basis of a treaty provision, Art.
XXIV (2) of US-Nicaragua Treaty of Friendship, Commerce &
Navigation, 1956 providing for submission of disputes over the
interpretation or application of the treaty.
Further in
Nicaragua vs. Honduras
(1988) ICJR the ICJ observed that the existence of jurisdiction
was a question of law & dependent upon the intention of the
parties. The Court found such intention between the parties on the
basis of Art.31 of Pact of Bogota, 1948.
B.
Compulsory Jurisdiction:
Art. 36(2) of the Statute of ICJ is of great importance in
extending the jurisdiction of ICJ. It says that the state parties
to the present statute may at any time recognize as compulsory the
jurisdiction of ICJ in all legal disputes concerning;
(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 &
(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 & more
states.
C.
Advisory Jurisdiction: The International court of
Justice also has advisory jurisdiction & in its advisory
jurisdiction the Court may give advice to the General Assembly,
Security Council or any member state as the case may be. Recently
the Court in its advisory jurisdiction decided the Legality of
wall built by Israel case wherein Israel allegedly in the exercise
of its right of self defence from the terrorist attacks of Hamas
group in Palestine. But the Court observed that the said wall is
against the well established cannons of international law. However
as this decision is not absolutely binding as such, Israel has
continued with further construction of the said wall.
Conclusion:
In this manner ICJ within it's limited jurisdiction has resolved
important international disputes & thereby has contributed in
ensuring international peace & security. However, it's
jurisdiction needs to be rationalised by creating a wing for
conducting those involved in terrorist activities & in violation
of human rights. It will be a better alternative to special courts
like ICTY, ICTR & International Criminal Court.
 The
author can be reached at :vijayoak@legalserviceindia.com
|
Role
of International Court of Justice
