Organization of nations which is the result of treaties based on
international law is called international organization. International
organizations bodies of permanent institutions with the cooperation of States
are the subjects' of international law, which came into existence only in the
second half of 19th century. Each international organization is the creation of
multilateral treaties. These treaties and the other rules, which regulate the
working of the organizations, might be considered as International
Decision making was carried on in two ways:
- By drafting international treaties and submitting them to member States
for ratification, or
- By adopting resolutions recommending action by member-States.
The United Nations Organization (UNO) Prior to the UNO, the League of Nations
(established by the Treaty of Versailles, 1919) aimed to promote international
peace and security. The idea of creating an effective organization was first
mooted out in the Atlantic Charter, 1941. The United Nations Declaration, 1942,
Franklin Roosevelt is associated with the phrase United Nations'.
The UNO finally came into existence on October 24, 1945. The organization was
formed in San Francisco in 1945 under a permanent Charter (ratified by 50
countries) that had its inception in conferences (1941-45) held by nations
opposed to the fascist coalition of Germany, Japan, Italy, and their satellites.
The headquarters has been in New York City since 1946 and the membership (2003)
consists of 191 nations. East Timor being the latest entry.
Aims and Objectives
The UNO is governed by its Charter, which is the result of a multilateral treaty
by its members. It not only deals with the constitution of the UN, but also
describes rights and duties of member States. The original copy of the U. N.
Charter is kept safely at National Archives of USA. The aims/ objects of the
U.N. are set forth in the Preamble, which states that We the people of the
- To save the succeeding generations from the war.
- To reaffirm faith in fundamental human rights and in the dignity and
worth of the human person.
- To reaffirm faith in the equal rights of men and women, and all nations
large and small.
- To establish conditions under which justice and respect for
international law and international obligations can be maintained.
- To promote social progress, etc.
- To maintain international peace and security.
- To ensure that armed forces shall not be used, save in the common
- To promote economic and social advancement of all the people.
The Preamble realizes the fact that peace is not mere absence of war
'. It sets
before the United Nations the object of positively achieving peace by
recognizing the worth and dignity of the individual, his fundamental rights and
by promoting social progress and better standards of life.
Purposes and Principles
Article 1 of the Charter enunciates the purposes (objectives) of the UN:
To maintain international peace and security; develop friendly relations among
nations; foster international cooperation in social, economic, cultural and
humanitarian matters; develop respect for human rights and freedom; take
necessary steps to achieve these objectives.
The main purpose of the UN is to maintain international peace and security, and
thus to prevent use of force as a means of settling international disputes. The
second most important purpose is to strive to bring about friendly relations
among nations, based on independence (self-determination) and sovereign
equality. The main problem before the UN is to reconcile these two purposes.
Article 2 lays down the following basic principles to be observed both by the UN
and its members:
- Basis of UN shall be sovereign equality of its members.
- The member States shall fulfill in good faith their obligations under
- The member States shall settle their disputes by peaceful means.
- Member States shall not threaten or use force against territorial
integrity/ political independence of another member State.
- All member States are to assist the UN when it takes preventive or
enforcement actions against a State.
- UN to ensure that non-member States' act in accordance with these
principles, so far as may be necessary for the maintenance of international
peace and security. This right of the UN to lawfully affect non-member
States' is supported by the decision of ICJ in Reparation for Injuries Suffered in the
Service of the United Nations Case.
- UN shall not interfere in the matters, which are within the domestic
jurisdiction of member States. But, this principle shall not prejudice the
application of the enforcement measures under Chapter VII (action with
respect to the threat to the peace, acts of aggression, etc.).
The UN is an inter-governmental organization in which sovereign independent
States' can only be members. According to Article 4, membership of the UN is
open to all peace loving States which accept the obligations contained in the
Charter, and are able and willing to carry out them
. However, no State has a
right to be admitted as a member of the UN.
Switzerland, which was a neutral' country, has become a member of the U.N. by a
referendum held in that country in 2002. There are some countries which are
still not a member of the U. N. viz. Taiwan.
There are two types of members:
Suspension and Expulsion
- Original members: those States who participated in the San Francisco
Conference (1945) and signed and ratified the Charter.
- Members subsequently admitted: a State can be admitted when it is first
recommended by a majority of seven members, including all five permanent
members of Security Council and later approved by 2/3 majority of General
Assembly. The ICJ in its advisory opinion on Conditions of Membership in the U.N. (1948) said
that in the absence of a favourable recommendation by the Security Council, the
General Assembly has no power to admit a new member on its own decision. On the
other hand, the General Assembly has the power to reject the recommendation of
the Security Council for membership of a State.
Article 5 provides that a member State, against which preventive or enforcement
action has been taken by the Security Council, may be suspended by the General
Assembly upon the recommendation of the Security Council.
Article 6 lays down that the General Assembly may expel upon the recommendation
of the Security Council any member State which is persistently violating the
principles contained in the Charter. As regards the withdrawal of membership,
though there is no provision in the Charter, the San Francisco Conference
adopted a declaration that a member State can withdraw because of exceptional
Organs of UNO
The following are the major organs of the UN:
- The General Assembly.
- The Security Council.
- The Economic and Social Council.
- The Trusteeship Council.
- The International Court of Justice.
- The Secretariat.
In addition, the Charter authorizes the General Assembly and Security Council to
establish subsidiary organs' which are deemed necessary for the performance of
It is the only principal organ of the UNO consisting of all members. It is a
plenary organ (Parliament of Men'). Each Member State has one vote and five
representatives/ delegates. The General Assembly regularly meets once a year (in
the third week of the month of September).
But special sessions can also be
convened by the Secretary General either on the request of Security Council or
on the request of majority of member States or at the request of one member
concurred by a majority of member States. It is mainly a deliberative body with
powers of discussion, investigation, review, recommendation and criticism about
the work of the UN as a whole including its other organs and specialized
agencies. Though primarily a recommending body without having binding effect,
the General Assembly can also take final decision over certain matters like,
budget and admission, suspension/expulsion of a member, etc. Decisions on
important questions are taken by a 2/3 majority of members present and voting.
The important questions include: recommendation with respect to the maintenance
of international peace and security; the election of members (non- permanent) of
the Security Council, the ECOSOC, the Trusteeship Council; the admission of new
members; the suspension and expulsion of members; questions relating to
trusteeship system, and budget (Art. 18). All other decisions are taken by a
simple majority. The General Assembly cannot make any recommendation to the
Members or to the Security Council on any question or any dispute or situation
over which the Security Council is exercising its functions.
responsibility of maintaining peace and security has been entrusted to the
Security Council, and the General Assembly can recommend measures only when the
Security Council refers such matters to it. It is empowered to discuss any
question relating to such matters brought before it by a member State or by
Security Council or a non-member State and make recommendation on it. It could
also call the attention of Security Council to any situation which is likely to
endanger international peace and security. Further, it may consider the general
principles of cooperation in the maintenance of international peace and
security, and may make recommendation to the Members or to the Security Council
or to both.
The other important powers and functions of the General Assembly are:
- To supervise the international trusteeship system.
- To adopt amendments to the Charter.
- To elect members of other organs of UN, viz. 10 non permanent members of
Security Council, 15 judges of ICJ, etc.
- To elect Secretary General of UN.
- To adopt international conventions.
It is a continuously functioning body, originally consisted of 11 members, but
since 1965 of 15 members: Five permanent members (China, France, Soviet Union,
UK and USA) and Ten non-permanent members (elected by the General Assembly for a
period of 2 years keeping in view the contribution of member States to
maintenance of peace and security).
In order to have equitable geographical
distribution, 5 members from Afro-Asian nations, one from Eastern Europe, two
from Latin America and two from Western countries are elected. It may be noted
that in the U.N.O. regular budget, the contribution of USA is 25%, while that of
Japan is 20%. In peace-keeping operations, the contribution of USA out of the
total expenditure is 30%. A retiring member State is not eligible for immediate
re-election. Each member State of the Security Council has one representative.
It may be noted that the member States of UN who are not members of the Security
Council may participate (without vote) in the discussion of the Security Council
if the Council considers that the interests of that member are specially
affected or the member State is a party to a dispute. In the latter case, even a
non-member State can be invited.
Voting Procedure: Each member State of the Security Council has one vote.
Decisions of the Security Council on procedural matters (e.g. time and place of
meetings, adoption of procedural rules) are to be made by an affirmative vote of
9 members; and, decisions on all other substantive matters are to be made by an
affirmative vote of 9 members including the concurring votes of five permanent
If a permanent member casts a negative vote on a substantive matter, the
decision is blocked or vetoed
i.e. does not come into existence. USSR
' for the first time in Security Council. It may be noted that in case of
pacific settlement of dispute, a party to a dispute (even a permanent member)
must abstain from voting. Further, the question whether a particular matter
falls within the category of procedural matter or not, also requires concurring
vote of permanent members.
Thus, a veto could also be exercised here also. This
constitutes the double veto
(first, by casting a negative vote against calling
the matter as procedural' after which the matter becomes substantive', and
second, by casting another negative vote against this substantive' matter). It
may be noted that five permanent members do not enjoy any veto power in the
General Assembly. This veto power of five permanent members (Privileged
) is against the principle of sovereign equality enunciated in the
The justification given for veto power is that the lack of
unanimity amongst the permanent members might split the UN and the organization
might meet the fate of the League of Nations. According to Starke, as the
permanent members bear the main burden of responsibility for maintaining peace
and security, no permanent member should be compelled by the vote of the
Security Council to follow a course of action with which it disagrees.
The Uniting for Peace"
Resolution of 1950 according to which the General Assembly
can take up an issue which is likely to threaten the international peace and
security and which the Security Council has failed to resolve as a result of a
veto, has helped the UN to neutralize some effects of veto. A Work Group headed
by the President of the U. N. General Assembly Razali Ismail has recommended for
increase in membership of Security Council from 15 to 24.
The logical basis of
increase in the number of members (permanent as well as non-permanent) in
Security Council is increase in the number of members of General
Assembly. Russian President Vladimir Putin has openly supported for permanent
membership' of India in Security Council.
Powers and Functions: The functions of the Security Council are primarily of an
executive nature, almost exclusively confined to the maintenance of
international peace and security (Art. 25). It also exercises several other
powers concerning the structure and functioning of the UN and shares some powers
with the General Assembly. To take prompt and effective action, it acts as the
executive body of the UN with Great Powers' as its core members. All members of
the UN agree to abide by and carry out its decisions.
The powers and functions of the Security Council include:
- Pacific settlement of dispute: In disputes which are likely to endanger
the maintenance of international peace and security', the Council may call
on the parties to settle the dispute by negotiation, inquiry, mediation, or
other peaceful means (Art. 33). If they failed to reach an agreement, they
are obliged, under Art. 37, to refer the dispute to Security Council which
shall then decide either to recommend appropriate procedures/ methods of
settlement or actual terms of settlement.
If it is a legal dispute, it is
to be referred to ICJ. Under Art. 34, the Security Council has the power to investigate any dispute" or situation inimical to international peace and security. It may
investigate either on its own or when it is brought to its notice by member
States or General Assembly or Secretary General or a non-member State which is a
party to the dispute.
- Preventive and enforcement action to maintain peace and security: If the
dispute or situation is of serious nature resulting in breach of the peace,
or act of aggression, the Security Council has the power to recommend such
measures as are necessary to maintain or restore peace (Art. 39).
It is to
be noted that while recommending measures under Art. 37 or Art. 39, the
Council may exercise its powers by peaceful means, no such restriction
exists on its enforcement powers relating to suppression of threats to
peace, breaches of peace and acts of aggression. It can decide any of the
enforcement actions: non-military action (e.g. economic blockade, cutting
off diplomatic relations), or military action which may also involve
blockade. The military action is resorted to when other measures turned out
to be inadequate.
- Other executive powers:
- The Security Council shall encourage the pacific settlement of local
disputes through regional arrangements/ agencies.
- Control and supervision of trust territories classified as strategic
areas (viz. Pacific Islands).
- Admission, suspension and expulsion of members.
The General Assembly could not on its own (suomotu) admit, suspend and expel a
State to/ from UN in case the Security Council failed to recommend. The Security
Council may restore the rights and privileges of a member State suspended by
- The Security Council takes part along with the General Assembly in the
appointment of Secretary General of UN, and in the election of the Judges of ICJ.
- Amendment of Charter: As per Art. 108, approval of five permanent
members is essential along with 2/3 members of General Assembly. It may be
noted that the second method of altering the Charter is by review method.
Art. 109 provides that a general conference of the Members of UN for the
purpose of reviewing the Charter may be held, if so decided by 2/ 3 members
of General Assembly and by a vote of any seven members of the Security
Council. It may be noted that a review of Charter means the alterations of
the Charter even regarding the fundamentals on the basis of which the
Charter is formulated, while amendment of the Charter might mean altering
the Charter in its minor details.
Peace-keeping Machine of the UN: The term peace-keeping
is not used in the UN
Charter. It has evolved over a period of time. In the absence of Security
Council's enforcement action, interposition forces, groups/ missions can be sent
by UN to areas of conflict for the restoration or maintenance of peace.
such a mission operates, unless the Security Council has provided to the
contrary, the operation of the mission does not depend on the consent of the
concerned States. The Security Council alone has the responsibility to establish
and operate a force compulsorily in the territory of a member State. However,
for the establishment of peacekeeping force, whether the consent of the host
State is necessary or not has been a subject of controversy.
The Economic and Social Council (ECOSOC)
The Charter of UN in order to achieve the economic and social advancement of all
people, created the ECOSOC as a permanent organ of UN with a view to secure
international prosperity, stability and justice. The Council originally had 18
members but now composed of 54 members, elected by General Assembly for a term
of 3 years.
The functions of ECOSOC include:
- To discuss international economic and social issues and formulate
recommendations to member States and to other organs and agencies of UN;
- To recommend for promotion of respect of human rights and freedom;
- To prepare draft conventions on matters within its scope of powers to
- To coordinate the activities of the specialized agencies of the UN;
The Council has established four regional economic commissions for Europe, Asia
and Far East, Africa and Latin America. The Council can also establish
functional or ad hoc commissions to deal with particular subjects such as
Human Rights, Population, etc.
The Trusteeship Council
The Charter of UN provides for an International Trusteeship system' with the
objectives of furthering international peace and security to promote the
advancement of the inhabitants of the Trust territories and their progressive
development towards Self-Government or independence. Trust territories
territories held under mandate at the commencement of the Charter; territories,
which may be detached from enemy States as a result of Second World War; and,
territories voluntarily placed under the system by States responsible for their
The Trusteeship Council'
consists of the members administering
trust Territories, members of Security Council not administering trust
territories, and, members elected by the General Assembly. The Trusteeship
Council is of historical importance because today only the Trust territory of
Pacific Islands continues under the system of which the USA is the trustee.
For smooth running of UN, for execution of its decision, and for administering
of its policies and programmes, the Charter created a Secretariat headed by a
Secretary General, appointed for a term of 5 years by the General Assembly on
the recommendation supported by nine affirmative votes (including the concurring
vote of five permanent members) of the Security Council. Every person is
required to take an oath before the start of his work in the U. N. Secretariat.
This oath is attributed to the world organization.
There are six official languages recognized by the UNO:
The Secretary General is the chief administrative officer of UN and its organs.
He attends all meetings of UN and its organs. He is expected to act without any
guidance from the General Assembly or the Security Council. He may bring to the
attention of Security Council the matters which may threaten the international
peace and security. He has to submit Annual Report to the General Assembly on
the working of UN. He can summon special sessions of General Assembly on the
request of Security Council or of majority members of UN.
The Secretary General acts as the registering authority of all treaties and
international agreements. He has been assigned the control of various
peacekeeping forces created by the UN. It may be noted that he must maintain the
exclusive international character of the UN'. Thus, he should not seek or
receive instructions from any Government or from any authority external to the
The International Court Of Justice (ICJ)
The need for the establishment of a Permanent Court to solve international
disputes was felt in the First Hague Conference. It was in the Second Hague
Peace Conference, the USA proposed for the establishment of such a Court. The
Permanent Court of International Justice (PCIJ) was established in 1921 under
the covenant of the League of Nations.
After its dissolution, the new
International Court of Justice (ICJ) started functioning on 18 April 1946 with
the headquarters at the Hague. ICJ is the principal judicial organ of the UNO.
The rules concerning the ICJ are set out in a Statute annexed to the UN Charter.
All members of the UN are ipso facto parties to the Statute of ICJ. The member
States are under an obligation to comply with the decision of ICJ in the cases
to which they are parties.
The function of the ICJ was conceived primarily to
decide legal disputes between State parties when they agree to submit their
dispute to it. The ICJ was not given the power of judicial review over the
actions taken by other international organs.
Thus, the absence of compulsory
jurisdiction over States and lack of power of judicial review makes it a weaker
Court than the municipal courts. Art. 34 (1) of the Statute provides that only
States may be parties before the Court. But the international organizations may
be requested to provide information relevant to cases before the Court.
International organizations may invoke the advisory jurisdiction of the Court.
Thus, the UN may request the Court to give an advisory opinion on any legal
question, but it cannot bring a claim in contentious litigation before the
Court. Individuals and corporations totally lack any locus standi as parties
before the Court. The individuals can bring claims only through their own
Organization of ICJ
The Court consists of 15 judges who are elected regardless of their nationality,
from among persons of high moral character who possess the qualifications
required for the appointment to the highest judicial office of their own States,
or, who are jurisconsults of repute in international law.
But, no two judges shall be elected from the same State. The system of election
is based on the Root-Phillimore plan
devised in 1920. The list of persons to be elected as the
judges is prepared by the national groups in the Permanent Court of Arbitration
on the request of Secretary General of UN. No national group shall nominate more
than four persons.
The Secretary General then prepares the list of nominees in
alphabetic order from which judges are to be elected by the General Assembly and
Security Council, each voting independently, but simultaneously (by absolute
majority). These two organizations keep in mind that the judges elected are
representatives of main forms of civilization and principal legal system of
the World. Under a sort of gentlemen's agreement
, the judges are elected on
regional basis and as per present practice 3 from Africa, 3 from Asia, 2 from
Latin America, 2 from Eastern Europe and 5 from Western Europe and other
countries are elected.
The casual vacancies due to death or resignation are also
filled in the same manner. One third, i.e. 5 judges is elected, once in every
three years. Thus, once elected a judge enjoys tenure of 9 years and is also
eligible for re-election. The seat of the Court is at the Hague, though it can
also sit elsewhere if it considers necessary. The quorum of the Court is nine
judges. The judges elect a President and a Vice-President from among themselves,
to preside over the Court for a period of three years.
The decisions regarding
the disputes before the Court are taken by majority of votes of judges and in
case there is a tie, the President of the Court exercises his casting vote. The
salary and allowances of judges are determined by the General Assembly. Each
judge of the Court receives an annual salary. The judges enjoy diplomatic
privileges and immunities. No judge of the Court may exercise any political or
administrative function or engage in any other occupation of a professional
The judges of the nationality of each of the parties retain their right
to sit in the case before the Court. If the Court includes upon the bench a
judge of the nationality of one of the parties, any other party may choose a
person to sit as a judge. Thus, ad hoc judges could be appointed so.
The Statute also provides for the formation of three types of chambers: the
chambers of summary procedure, chambers for dealing with particular categories
of cases, like labour or environment, and chambers for dealing with a particular
case. Though the judgment of the Court is final and without appeal
, yet a
State party may appeal for revision of judgment under certain circumstances.
Court's decision has no binding force except between parties and in respect of
that particular case only. Art. 38 (1) of the Statute of ICJ directs the Court
to apply international law to disputes derived from international conventions,
international customs, general principles of law, and subject to Art. 59,
judicial decisions and teachings of the most highly qualified publicists.
Jurisdiction of ICJ
The access to the Court is open to States which are parties to the Statute and
Charter, as well as to the non-members who are admitted to UN under Art. 92 (2)
of the Charter. The States, which are not parties to the Statute, can have
access to the Court if they fulfill the conditions laid down by the General
Assembly in each case and upon the recommendation made by the Security Council.
Such State must deposit a declaration with the Registrar of the Court accepting
the jurisdiction of the Court, and contributing towards expenses of the Court.
The Court enjoys two types of jurisdictions, namely:
(1) Contentious. (2) Advisory.
- Contentious Jurisdiction: It comprises the following kinds of cases:
(a) All cases which the parties refer to it.
(b) All matters specially provided for in the Charter of the United Nations.
(c) All matters specially provided for in the treaties and conventions in force.
In all contentious cases, the Court can exercise its jurisdiction only with the
consent of the State parties to the dispute, which conveys their consent through
notification in bilateral agreement known as compromise
. But since the 1980s,
the usual method of notifying their joint consent is through a Special
, instead of a compromise.
A unilateral reference of a dispute to the Court by one State party without
prior Special Agreement can also be made under the Principle of Prorogatum
, provided the other State party or parties convey
their assent to voluntary submission to the jurisdiction of Court either after
the case is referred or subsequently. However, if the consent of the other State
party or parties is not forthcoming either after the case is referred or
subsequently, the Court cannot exercise jurisdiction over such a case.
The Court also exercises compulsory or obligatory jurisdiction over following
types of cases:
- Where the State parties to a treaty have agreed that the Court shall
have jurisdiction over the disputes arising under the treaty; or, where a
treaty, which is in force, has a provision also come under compulsory
jurisdiction of the ICJ. For example, disputes arising out of the working of the specialized
agencies like the I.L.O. give compulsory jurisdiction to the ICJ.
- The Statute in Art. 36 (2), known as Optional Clause provides the
State parties to the present Statute may at any time declare that they are
recognized as compulsory subjects 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; relating to
(a) interpretation of a treaty
(b) any question of international law
(c) the existence of any fact which, if established, would constitute a breach
of an international obligation;
(d) the nature and extent of reparation to be made for the breach of an
Such a declaration under Optional Clause
by States may be made, with the
Secretary General of UN, either unconditionally or on condition of reciprocity
on the part of several or certain States, or for a specified time only. Under
the reciprocity principle, a State accepts the Court's jurisdiction vis-a-vis
any other State only in so far as that State has also accepted it. The States
can also make such declarations subject to certain reservations.
reservations may be regarding the following:
- Past disputes;
- Disputes for which other methods of settlement are available;
- Questions within the domestic jurisdiction of a State;
- Disputes arising in time of war or hostilities.
But the too many reservations which are merely escape clauses or consciously
prompted Starke to say such a system of optional
compulsory jurisdiction verges on absurdity. The disputes regarding application
or interpretation of trusteeship agreement between a trustee and another member
of UN. The Statutes of certain Specialized Agencies of the UN contain provisions
to refer their disputes with other specialized agencies to the Court.
time, it was thought that another category of compulsory jurisdiction existed,
namely, where under Art. 36 of the UN Charter, the Security Council recommends
the parties to a dispute to refer their case to the Court if the dispute is of a
legal character. But after the decision of the ICJ in the Corfu Channel
Case (Preliminary Objection (1948) it is now settled that if a Member State had
not accepted the jurisdiction of the ICJ under a special agreement or under a
treaty or convention under a declaration made according to Para 2 of Art. 36 of
the Statute, compulsory jurisdiction cannot be exercised by the Court.
Statute does not provide any method for enforcement of the decisions in the
contentious cases, which is a major weakness of ICJ. However, under Art. 94 of
the Charter, each member of UN undertakes to comply with the decision of the
Court in a case to which it is a party. If a State party to a dispute does not
fulfill its obligations as per the decision of the Court, the other State party
has a right to approach the Security Council which may decide how the decision
can be made effective.
(2) Advisory Opinion
The ICJ may give an advisory opinion on any legal question, at the request of
anybody authorized by, or in accordance with, the Charter of the UN, to make
such a request. According to Art. 96 of the Charter, the General Assembly and
the Security Council may request the advisory opinion of the Court on any legal
Other organs of the UN may also do so, if authorized by the General
Assembly. An advisory opinion lacks the binding force of a judgment as in
contentious case. But, States may, by treaty or agreement, undertake in advance
to be bound by advisory opinion on certain questions.
The advisory function is
designed primarily to assist the General Assembly and Security Council in the
discharge of their duties of conciliation over disputes submitted to them, by
rendering them an authoritative legal opinion. Strictly speaking, the Court's
opinion is not given to States, but only to organs entitled to do so. However,
States are permitted, along with international organizations to participate in
proceedings before the Court.
The Court should not decide upon the merits of a
dispute between States by way of an advisory opinion. It may be noted that the
absence of consent of a State or States does not prevent the Court from giving
an advisory opinion on a legal question, the solution of which may clarify a
factor in a dispute between States or between a State and an international
organization, without affecting the substance of the dispute.
Ordinarily the Court cannot refuse to render advisory opinion, but it may do so
- The main point of the legal question referred relates to a controversy
between certain States and any one of these States is not present before the
- The question referred involves other than legal aspects (viz. political
or purely academic question), or is embarrassing.
However, it may not refuse to give an advisory opinion where the interpretation
of a treaty provisions is concerned, even though such a question and request are
of a political nature. Though the advisory opinion lacks the binding force, yet
the agencies, which sought such opinion, have invariably treated the opinions
with respect and as authoritative statements of law. Advisory opinions have a
great persuasive value.
Oppenheim has rightly said:
The advisory jurisdiction has in fact proved to be much fertile and more
important than was originally contemplated. The number of advisory opinions
given by the Court almost equals that given by way of judgments.
of the 1CJ is much larger (some 187 States are
parties to the Statute) than that of its predecessor i.e. PCIJ. However, it is
credited with more instances of noncompliance with its judgments and orders
compared to the PCIJ, whose judgments and orders were all complied with. The
judgments in the Corfu Channel Case, the Fisheries Jurisdiction Cases, Nicaragua
Case, etc. have not been complied with.
ICJ and Human Rights In spite of the impressive record of the United Nations in
setting the norms of human rights, and setting up the international and regional
machinery for their observance and enforcement, their violations are rampant.
This requires some political will and concerted efforts at the national,
regional and international levels by the State. There must be perennial
International Criminal Court (ICC)
Though the concept of domestic jurisdiction has not remained absolute in the
matter of human rights violations, the national sovereignty is still a
formidable obstacle in the enforcement of human rights. Furthermore, the
protection of human rights is closely dependent upon many other factors, viz.
international peace and security, and the economic and social development of
nations, which require close cooperation between the States.
The ICJ is not a
human rights court in the contemporary sense of that term. The Statute of the
court provides, in Art. 34, that: Only States may be parties in cases before
the Court. It follows that individuals, corporations, NGOs, etc. may not be
parties to contentious cases before the court. Moreover, the focus of the large
majority of contentious cases between States, and advisory opinions given by the
Court has not been on human rights questions.
In comparison, the European Court of Human Rights, the Inter-American Court of
the Human Rights and some other international judicial bodies provide for
adjudication of human rights. Therefore, the World Court's statute should also
be suitably amended to cognize human rights questions by modifying Art. 34.
The U.N. General Assembly, in 1989, requested the International Law Commission
to address the question of establishing an international criminal court. The
Commission prepared a Draft Statute.
The Rome Conference, U.N. Diplomatic Conference of Plenipotentiaries, in Italy,
adopted the statute known as the Rome Statute of the International Criminal
on 17 July 1998. The Conference was attended by 162 countries. Besides
the Preamble, there are 128 Articles in the Statute, divided into 13 parts.
According to Art. 126, the Statute shall come into force on the 1st day of the
month after the 60th day following the date of deposit of the 60th instrument of
ratification, acceptance, approval or accession with the U.N. Secretary General.
The Statute of ICC has come into force from 1st January 2003. Earlier, an
International Tribunal for Prosecution of Violators of International
Humanitarian Law in Former Yugoslavia was established in 1993 by the Security
Council. It was for the first time that UN has established an International
Criminal Court with jurisdiction to prosecute crimes committed during armed
The Tribunal is to deal with crimes against humanity
, such as
murder, extermination, enslavement, torture, rape, persecution on political,
racial and religious grounds and other inhuman acts. It may be noted that
crimes against humanity
were first recognized in the UN Charter and judgment
of Nuremberg Tribunal (1945). Then, Rwanda International Criminal Tribunal was
established in 1994 under Chapter VII of the UN Charter by the Security Council
for the purpose of prosecuting persons responsible for genocide, etc. committed
in the territory of Rwanda and other neighbouring States.
Major Features of International Criminal Court (ICC)
ICC: A Critical Appraisal
- Establishment of the Court: Art. 1, which establishes the ICC, provides
that it shall be a permanent institution and shall have power to exercise
jurisdiction over persons for the most serious crimes of international
concern. The ICC shall be complementary to national courts. The ICC will
exercise jurisdiction only when the national judiciary concerned is genuinely
unwilling or unable to prosecute crimes mentioned in the Statute of ICC. The
Court shall be brought into relationship with the U.N. through an agreement to
be approved by the Assembly of State Parties to this. The seat of the Court
shall be established at the Hague (Netherlands).
- Jurisdiction: The Court has jurisdiction in accordance with the Statute
with respect to the following crimes:
- Crime of genocide,
- Crime against humanity,
- War crimes, and
- Crime of aggression (Art. 5).
The Court has jurisdiction only with respect to crimes committed after the entry
into force of the Statute (Art. 11). A State which becomes a party to the
Statute thereby accepts the jurisdiction of the Court with respect to these
crimes (Art. 12).
The Statute shall apply equally to all persons without any
distinction based on official capacity (a Head of State/Government, a member of
Parliament, etc.); Immunities or special procedural rules which may attach to
the official capacity (under national or international law) shall not bar the
court (Art. 27). However, the Court shall have no jurisdiction over a person
under the age of 18 at the time of the commission of a crime (Art. 26).
- Applicable Law: According to Art. 21(1), the Court shall apply firstly
this Statute' elements of crime and its rules of procedure and evidence;
secondly, where appropriate, applicable treaties and principles of
international law (including those of armed conflict); lastly, general
principles of law derived by Court from national laws of legal systems of
the world including the national laws of States that would normally exercise
jurisdiction over the crime (provided that those principles are not
inconsistent with the statute/international law).
Art. 21(2) lays down that
the Court may apply principles and rules of law as interpreted in its
previous decisions. Art. 21(3) provides that the application and
interpretation of law pursuant to this Article must be consistent with
internationally recognized human rights, and be without any adverse
distinction founded on grounds such as gender, age, race, colour, language, religion/belief, political or other opinion,
national/ethnic/social origin, wealth, birth or other status.
A person shall not be criminally responsible under this Statute unless the
conduct in question constitutes, at the time it takes place, a crime within the
court's jurisdiction. The definition of a crime shall be strictly construed; in
case of ambiguity, there shall be interpretation in favour of persons being
investigated, prosecuted or convicted (Art. 22).
A person convicted by the court
may be punished only in accordance with this Statute - Nullapoena sine lege (Art.
23). Art. 24 lays down that no person shall be liable for conduct prior to the
entry into force of the Statute. In the event of a change in the law applicable
to a given case prior to final judgment, the law more favourable to the persons
being investigated, etc. will apply. Art. 25 deals with individual criminal
responsibility. The court shall have jurisdiction over natural persons pursuant
to this Statute.
A person committing a crime shall be individually responsible
and liable for punishment; it does not matter whether he commits crime as an
individual, jointly with another or through another person. A person is also
criminally responsible if he orders, solicits or induces the commission of a
crime which in fact occurs or is attempted.
A person is also liable if for the
purpose of facilitating the commission of a crime, he aids, abets, etc. in its
commission; contributes to the commission (or attempt) of a crime by a group of
persons acting with a common purpose; in respect of the crime of genocide,
directly and publicly incites others to commit. It is also laid down that no
provision in this Statute relating to individual responsibility shall affect the
responsibility of States under international law.
- Composition of Court: According to Art. 34, the Court shall be composed
- The Presidency;
- Appeal Division, Trial Division and Pre-Trial Division;
- Office of the Prosecutor; and
- The Registry.
The Court is to consist of 18 judges (having established competence in Criminal
Law and Procedure as a judge, prosecutor, advocate, etc, or international
humanitarian law and the law of human rights). Nominations of candidates for
election to the Court may be made by any State Party to the Statute; every
candidate is required to be fluent in one of the working languages of the Court
(i.e. Arabic, Chinese, English, French, Russian and Spanish).
No two judges may
be nationals of the same State. The judges shall hold office for a term of 9
years. But at the first selection, 1/ 3rd of judges elected shall be selected to
serve for a term of 3 years; l/3rd to serve for a term of 6 years; and the
remainder for a term of 9 years (Art. 36). The place of trial' shall be the
seat of the Court.
- Penalties: Art. 77 lays down the following penalties;
Imprisonment up to a maximum of 30 years; or a term of life-imprisonment when
justified by the extreme gravity of the crime and individual circumstances.
These penalties are subject to Art. 110 (review by the Court concerning
reduction of sentence). In addition to imprisonment, the Court may order a fine;
a forfeiture of proceeds, property and assets derived directly or indirectly
from that crime, without prejudice to the rights of bona fide third parties.
- Appeal and Revision: A decision under Art. 74 may be appealed in
accordance with the Rules of Procedure and Evidence (Art. 81). The convicted
person, or his spouse, children, etc. may apply to the Appeals' Chamber to
revise the final judgment of conviction/sentence on the grounds specified in
the Statute (Art. 84). Anyone who has been the victim of unlawful
arrest/detention shall have an enforceable right to compensation.
- Assembly of State Parties: The State Parties are under a general
obligation to cooperate with the Court (Art. 86). A sentence of imprisonment
shall be served in a State designated by the Court from a list of States,
which have indicated their willingness to accept sentenced persons (Art.
The Rome Statute also establishes an Assembly of State Parties; each State
Party to have one representative. Other States, which have signed the
Statute, may be observers in the Assembly (Art. 112). The Assembly shall
have a Bureau consisting of a President, two Vice Presidents and 18 members.
The Assembly shall consider and adopt recommendations of the Preparatory
Commission; provide management oversight; decide the court's budget; decide,
whether to alter, the number of judges; to consider question relating to
non-cooperation. The Assembly may establish subsidiary bodies for evaluation
and investigation of the Court, in order to enhance its efficiency. The
Assembly shall adopt its own rules of procedure.
- Settlement of Disputes: Any dispute concerning the judicial
functions of the Court shall be settled by the Court's decision. Any other
dispute between two or more State Parties relating to the interpretation or
application of the Statute shall be referred to the Assembly of State
Parties; the latter may itself seek to settle it or make recommendations on
further means of settlement including referral to the ICJ (Art. 119).
- Miscellaneous: A unique feature of the Rome Statute is that it
does not provide for any reservations (Art. 120). A State Party may, by
written notification addressed to the U.N. Secretary General, withdraw from
this Statute (Art. 127). Seven years after the entry into force of this
Statute, the Secretary General of U.N. shall convene a Review Conference to
consider any amendments to this Statute. Such review may include, but is not
limited to, the list of crimes contained in Art. 5.
The adoption of
the Rome Statute of ICC is a great achievement. So far 139 States have signed
and 87 States have ratified it (Dec. 2002). The Court has sufficient safeguards
in its structure, jurisdictional criteria and judicial process to prevent
politically motivated prosecutions.
It does not undermine national jurisdiction
and sovereignty. There are, however, certain shortcomings. For example, the
crimes of hijacking' and terrorism' have not been included in the list of
crimes over which the ICC shall have jurisdiction. However, it may be noted that
an internationally acceptable legal definition of terrorism is still elusive and
a separate U.N. Convention on Terrorism is under negotiation.
The definitions and categories of crimes listed under the Statute are also under
scrutiny. While the countries that have ratified the Statute will have to draw
up a definition of the crime of aggression,
the crime of genocide
will replicate the definition that was provided in the Genocide Convention,
1948. India's reservations with respect to the Statute (India has not signed and
ratified the Statute) basically pertain to the definitions that the Statute
accords to crimes against humanity and to war crimes. As codified in the
Statute, the Court will have jurisdiction over crimes against humanity'
committed in the course of armed conflict between nations or otherwise.
It will also have jurisdiction against State and non-State actors. Similarly,
the Court will have jurisdiction over war crimes
committed in the course
of conflict between States or in the course of conflict within States. India has
pointed out that these definitions go beyond customary law and previous
multilateral treaties. Some elements of India's reservations are traceable to a
context where the Indian State is pitted against certain ethnic minorities and
where certain political forces are pitted against religious minorities.
while the national criminal law should, and usually does, provide for the
prosecution of those who commit crimes on a minor or mass scale, the domestic
criminal jurisprudence might not define large scale atrocity as a separate and
additional category of crime as does the Statute.
The U.S.A. does not favour the ICC because of few reasons:
- It believes that the ICC downplays the role of UN Security Council;
- The Rome Statute of ICC imports unchecked powers to the ICC; and,
- ICC threatens the US sovereignty because ICC asserts jurisdiction over
citizens of States.
India and the USA have reasserted their rejection of the ICC's jurisdiction
over their nationals by signing an agreement under which neither country would
surrender citizens of the other to any international tribunal without the
consent of that person's national government (The U.S.A. was one of seven
countries that voted against the adoption of the Rome Statute). 15 States have
already signed this agreement with the U.S.A.
The enforcement mechanism devised under the Statute is also far from
satisfactory. The Statute shows that States are yet not prepared to establish a
strong Court having compulsory jurisdiction over international crimes. However,
the Statute represents the maximum agreement, which could be reached in the
present circumstances. A welcome feature of the Statute is the provision of
review of the Statute.