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International Court of Justice and Contemporary Cases

History And Composition:

In this era of globalization where every country is running after the money and power, a draw line had to be drawn between right and wrong with the same objective ICJ was established in 1945 by a UN Charter and began working in 1946 as the successor of Permanent Court of International justice. The statute of the International Court of Justice is the main document constituting and regulating the conduct of the court.

The seat of the International Court of Justice is at Hague, (Netherlands). It is one of the sixth main organs of the United Nation. Interestingly ICJ is the only principal organ of the UN that doesn't have its HQ in New York, USA. The other five organs i.e. General assembly, Security Council, Secretariat, Economic, and Social Council have their respective headquarters in New York, USA.[1]

The international court of justice is also known as the World Court. The ICJ is composed of 15 judges having a tenure of 9 years while 5 judges are nominated after every 3 years which resembles the Rajya Sabha elections of India. No two judges belong to the same country/ state[2]. The judges of ICJ are nominated by the National Group of Permanent Court of Arbitration situated in the Netherlands.

There may be a maximum of 4 members in any national group. The election process of the ICJ is quite typical. Once the name of any potential judge is nominated by the national group then the simultaneous election takes place in UNSC and UNGA winning candidate needs a majority in UNSC as well as UNGA.[3]

No veto is entertained in elections though right from the establishment of ICJ every 5 permanent members have their representation in the court. However, in case any country isn't a member of the UN can also become the party of ICJ by following a separate mechanism. It's worth mentioning here even if a country is a party of ICJ that doesn't mean it will automatically come under the jurisdiction of ICJ.

It has 2 fold jurisdiction i.e. Contentious, and Advisory.[4] Any country wishing to come under the Contentious jurisdiction whether it is a member of the UN or signed the membership of ICJ by protocol needs to sign an agreement which says that we are the party of ICJ and we accept the contentious jurisdiction of ICJ and all the verdicts will be binding. Advisory jurisdiction isn't binding on any party it's just a legal opinion which a party may or may not accept.

International Court of Justice has a special provision called Ad-hoc judges that are appointed by the contesting parties i.e. In the Kulbhusn Jadhav case Pakistan may believe that since India has its judge in ICJ he may have undue influence over the proceedings of the case ICJ gives Pakistan liberty to appoint an Ad-Hoc judge to the panel belonging to any nation according to its choice. All the countries of the United Nations are parties of the ICJ per se. Any country which belongs to the UN can move to ICJ in any conflict arising out of any action.

Judgement Of ICJ:

Article 27 of the United Nations Charter authorizes the UNSC to enforce the ruling and verdict of the ICJ. They are the protector of the global justice system.in case any country refuses to enforce any binding judgment other countries may move to the UNSC and UNSC will ensure to enforce that verdict by any means. However, these rulings are subjected to the veto power of the five permanent members (France, U.K., China, US, Russia) of the council.

This provision of the UN Charter gives permanent members authority to veto any verdict of the ICJ against any nation [5]i.e. country A and country B went to ICJ for any dispute settlement where ICJ gave its verdict on the favor of country A but when the country will go to UNSC for the enforcement of any permanent member of the UNSC can use its veto power against the verdict which makes ICJ verdicts extremely fragile and hard to enforce. This is the major loophole of ICJ.

Appointment Of Justice Dalveer Bhandari As Judge In ICJ:
Any country aspiring for its representation in ICJ is required to get at least 97 votes in UNGA and 8 votes in UNSC. In the year 2017 justice Dalveer Bhandari was elected as a judge in the ICJ representing India he defeated Sir Christopher Greenwood (Britain representative) who already served a 9-year term of ICJ judge in past. Justice Dalveer Bhandari has been a supreme court judge previously.

There was a total of 11 rounds of voting and in the end, the UK withdrew its nomination and India won the elections. Justice Bhandari received all 15 votes in the UN Security Council and 183 out of the 193 votes in the UN General Assembly in what can be described as a sweeping victory. This victory of India in ICJ indicates a significant rise in global diplomatic relations and reputation. [6]

Contemporary Landmark Cases In ICJ:

  1. Qatar Airways and Saudi Arabia:

    Qatar and Saudi Arabia used to have a friendly relationship before 1995. Both these countries strongly opposed the dominance of Israel. It was in 1995 when the leadership changed in Qatar there was a change in diplomatic relations between both nations. In the year 2002 Qatar allowed US air force to use its bases (Al Udeid Air Base) in military operations and this resulted in a major setback in the diplomatic relations between Qatar and Saudi Arabia.

    In the year of 2014, Qatar recalled its ambassadors from UAE, Saudi, and Bahrain. In the year 2017 UAE Egypt and Bahrain decided to break all kinds of economic ties with Qatar and imposed a land sea and air blockade on Qatar for supporting terrorism activities in its soil. Qatar filed a complaint in a civil aviation organization against this action citing this was a sheer violation of the 1944 Chicago convention of international air law. [7]Saudi Arabia moved to ICJ for appeal against the ICAO under article 84 of ICAO. ICJ dismissed the appeal of Saudi and its allies and cited that ICAO has the authority to adjudicate this matter. [8]It is believed that ICAO will announce its verdict next year.

  2. Nirbhaya rape case convicts moved to ICJ:

    3 convicts of Nirbhaya rape case filed their petition in ICJ after the Supreme Court rejected the plea seeking the restoration of all their legal remedies alleging their previous lawyers didn't present case in an appropriate way rather mislead them. After exhausting all legal remedies, they moved to ICJ challenging the order of death sentence. ICJ has no jurisdiction to deal with the applications from the individuals NGOs or any corporations. Only states are eligible to appear before the court. ICJ didn't entertain this case.[9]

  3. Rohingya genocide case:

    Rohingyas are an ethnic minority living in Myanmar's Rakhine State. Most of the Myanmar leaders believe that Rohingyas don't belong to Myanmar and they came from Bengal. There has been discrimination against them for decades. In the year 2017 Rohingya militants attacked several security checkpoints in the state and killed many security officers and as a result Myanmar security forces brutally eliminated them in the state that included killings rapes and burning of houses and forced expulsions of locals. More than 10 lakh Rohingyas were forced to leave their home state.

    In one of its reports UN categorically used that this is an extreme genocide and should be investigated thoroughly. Gambia filed the case in ICJ under the convention on the prevention and punishment of the crime of genocide.[10] Article 3 of the convention defines the word genocide. Aung Suu Kyi went to ICJ herself because of various reasons. Myanmar claimed that the army took actions against terrorism activities only it could be disproportionate at times but it wasn't genocide rather war crimes and they would persecute their army for this illegal act. ICJ ruled that it has the right and the preliminary jurisdiction to hear a case seeking emergency measures to prevent Myanmar from committing genocide against its Rohingya minority.[11]

  4. Kulbhusan Jadhav Case:

    On 10th April 2017 Indian The foreign ministry told Kulbhusan Jadhav has been kidnapped last year from Iran by Pakistan and forced him to accept he is a spy. Pakistan claimed that he is a Raw agent and he is responsible for the various attacks in Pakistan whereas the Indian Government categorically states he is an Indian citizen and ex retired navy officer. He was sentenced by the death penalty in a kangaroo court by the Pakistan's government without any counselor access provided to him. Indian government moved to ICJ on May 8, 2017, and told there it is against the Vienna convention. ICJ stayed the death penalty of Kulbhusan Jadhav in the year of 2017. [12]

    ICJ further stated that he should be provided with the counselor access and proceedings should take place in a civil court only. In the latest development, our MEA has alleged that Pakistan violates ICJ order as well as its ordinance.[13]

Conclusion:

Considering abovementioned contemporary cases we have seen how ICJ played an important role in ensuring peace worldwide and delivered justice but at the same time some powerful nations especially five permanent members of UNSC uses VETO power that has been provided to them that defeat the very purpose of ICJ and its verdict. This is high time for ICJ and UNSC to reevaluate its Veto provision and ensure every country is given equal opportunity to get justice without any discrimination.

The provisions of ICJ were formulated decades ago and nations used to different mindset but today we are inching towards a new cold trade war where every nation wants to earn maximum profit and become powerful hence ICJ should amend some of its laws that make public international law a weak law.

End-Notes:
  1. https://www.icj-cij.org/en/court
  2. Statute of the International Court of Justice, Article (3)
  3. Statute of the International Court of Justice, Article (4)
  4. https://www.icj-cij.org/en/jurisdiction
  5. https://legal.un.org/repertory/art27.shtml
  6. Dipanjan Roy Chaudhary, Nov 21th,2017, https://economictimes.indiatimes.com/news/politics-and-nation/dalveer-bhandari-win-signals-diminishing-returns-of-un-security-council-permanent-members-veto-power/articleshow/61743592.cms
  7. https://www.icao.int/publications/pages/doc7300.aspx
  8. https://www.icj-cij.org/en/case/173
  9. Rekha Dixit, March 16, 2020, https://www.theweek.in/news/india/2020/03/16/nirbhaya-convicts-ask-icj-to-stay-their-executions-heres-why-it-wont-work.html
  10. https://www.un.org/en/genocideprevention/genocide-convention.shtml
  11. Express web desk, January 23, 2020, https://indianexpress.com/article/world/icj-rules-it-has-the-right-to-probe-allegations-of-genocide-against-rohingya-muslims-in-myanmar-6231557/
  12. https://www.icj-cij.org/en/case/168
  13. Shubjeet Roy , July 24, 2020, https://indianexpress.com/article/india/kulbhushan-jadhav-case-pakistan-legal-remedy-icj-india-6520417/

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