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Prof. Vijay oak - Vidya Pratishthan's Vasantrao Pawar Law College, Baramati

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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.


author's contact information!The  author can be reached at :vijayoak@legalserviceindia.com

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