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United Nation And Its Organs In The Light Of International Law

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 Constitutional Law'.

Decision making was carried on in two ways:
  1. By drafting international treaties and submitting them to member States for ratification, or
  2. 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, followed it.

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 United Nations are determined:
  1. To save the succeeding generations from the war.
  2. To reaffirm faith in fundamental human rights and in the dignity and worth of the human person.
  3. To reaffirm faith in the equal rights of men and women, and all nations large and small.
  4. To establish conditions under which justice and respect for international law and international obligations can be maintained.
  5. To promote social progress, etc.
  6. To maintain international peace and security.
  7. To ensure that armed forces shall not be used, save in the common interest.
  8. 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:
  1. Basis of UN shall be sovereign equality of its members.
  2. The member States shall fulfill in good faith their obligations under the Charter.
  3. The member States shall settle their disputes by peaceful means.
  4. Member States shall not threaten or use force against territorial integrity/ political independence of another member State.
  5. All member States are to assist the UN when it takes preventive or enforcement actions against a State.
     
  6. 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.
     
  7. 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.).

Membership

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:
  1. Original members: those States who participated in the San Francisco Conference (1945) and signed and ratified the Charter.
     
  2. 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.

Suspension and Expulsion
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 circumstances.

Organs of UNO
The following are the major organs of the UN:
  1. The General Assembly.
  2. The Security Council.
  3. The Economic and Social Council.
  4. The Trusteeship Council.
  5. The International Court of Justice.
  6. 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 their functions.

General Assembly
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.

The primary 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:
  1. To supervise the international trusteeship system.
  2. To adopt amendments to the Charter.
  3. To elect members of other organs of UN, viz. 10 non permanent members of Security Council, 15 judges of ICJ, etc.
  4. To elect Secretary General of UN.
  5. To adopt international conventions.

Security Council
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 members.

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 used veto' 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 powers) is against the principle of sovereign equality enunciated in the Charter (Kelsen).

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:
  1. 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.
     
  2. 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.
     
  3. Other executive powers:

    1. The Security Council shall encourage the pacific settlement of local disputes through regional arrangements/ agencies.
       
    2. Control and supervision of trust territories classified as strategic areas (viz. Pacific Islands).
       
    3. 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 General Assembly.
       
    4. 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.
       
    5. 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.

When 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:
  1. To discuss international economic and social issues and formulate recommendations to member States and to other organs and agencies of UN;
  2. To recommend for promotion of respect of human rights and freedom;
  3. To prepare draft conventions on matters within its scope of powers to General Assembly;
  4. To coordinate the activities of the specialized agencies of the UN; etc.
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 include 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 administration.

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.

The Secretariat
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:
  1. Chinese
  2. English
  3. French
  4. Russian
  5. Spanish
  6. Arabic.
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 organization.

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 Governments.

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 nature.

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.

The 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.
  1. 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 Agreement, 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:
  1. 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.
     
  2. 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 international obligation.

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.

The reservations may be regarding the following:
  1. Past disputes;
  2. Disputes for which other methods of settlement are available;
  3. Questions within the domestic jurisdiction of a State;
  4. Disputes arising in time of war or hostilities.

But the too many reservations which are merely escape clauses or consciously designed loopholes 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.

At one 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.

The 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 question.

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 when:
  1. 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 Court.
  2. 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.

The clientele 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 vigilance.

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 Court 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 conflict.

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)
  1. 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).
     
  2. Jurisdiction: The Court has jurisdiction in accordance with the Statute with respect to the following crimes:
    1. Crime of genocide,
    2. Crime against humanity,
    3. War crimes, and
    4. 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).
       
  3. 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.
     
  4. Composition of Court: According to Art. 34, the Court shall be composed of:
    1. The Presidency;
    2. Appeal Division, Trial Division and Pre-Trial Division;
    3. Office of the Prosecutor; and
    4. 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.
       
  5. 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.
     
  6. 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.
     
  7. 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. 103).

    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.
     
  8. 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).
     
  9. 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.
ICC: A Critical Appraisal 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.

Further, 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:
  1. It believes that the ICC downplays the role of UN Security Council;
  2. The Rome Statute of ICC imports unchecked powers to the ICC; and,
  3. 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.

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