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International Court of Justice: Emerging Issues
Overview

The International Court of Justice (ICJ) commonly known as "World Court" is established as the principal judicial organ of the United Nations by virtue of Article 92 of the United Nations Charter at The Hague, Netherlands in 1946. Chapter IV Article 13 of the UN Charter makes the General Assembly responsible for developing international law, and the ICJ is a crucial component in this. The ICJ operates by majority rule and arrives at its decisions by international conventions, international customs, and the "general principles of law recognized by civilized nations.

When PCIJ was founded in 1920, the United Kingdom, France and Italy being powerful states rejected the proposal of compulsory PCIJ jurisdiction. Similarly, in the case of ICJ, The USA and the former Soviet Union blocked compulsory ICJ jurisdiction. It is due to the fact that powerful states feel that ICJ's recognition of jurisdiction would infringe their sovereignty and that is why they hardly submit their disputes to the ICJ.

The ICJ's jurisdiction includes settling international disputes and giving advisory opinions. The contentious jurisdiction settles legal disputes submitted to it by the States in accordance with International Law as per Article 34 of the statute of the International Court of Justice. Under Article 65 of the Statute, the ICJ is authorized to give advisory opinions on any legal questions at the request of whatever body may be authorized by the UN Charter to make such a request. Further, under Article 96, the General Assembly or the Security Council may request the ICJ to give advisory opinions on any legal questions. Although the ICJ has no enforcement powers, Article 94 of the Charter incorporates an undertaking on the part of each member of the UN to comply with the decision of the court in any case to which it is a party and a further provision that:

If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the court, the other party may have recourse to the Security Council, which may, if it deem necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

The Court is composed of fifteen judges of different nationalities, who are elected by the General Assembly and the Security Council. Judges are nominated by the states or a coalition of states and elected independently by the Security Council and the General Assembly of the UN. Judges must have the standard qualifications, typically significant experience as lawyers, academics, diplomats, or domestic judges. They have a nine-year term and can be re-elected. A party not having a judge of its nationality on the bench may appoint an ad hoc judge for the purpose of the particular case. The composition of the Court aims to reflect the main forms of civilization and the principal legal systems of the world and the 15 seats are distributed by region: Africa and Asia nominate 3 judges each, Latin America and Eastern Europe select 2 each, and Western Europe plus "other states" (Canada, US, Australia, and New Zealand) as a group are allocated 5 seats. The distribution also includes seats for each permanent member of the Security Council. Since the ICJ's founding in 1945, the number of UN member states and parties to the ICJ Statute has increased from 55 to 191 in 2003.

Although the ICJ was expected to become Principal judicial organ to settle disputes among the states, it never happened. Since 1946, 136 cases have been referred to the ICJ with issues pertaining to disputes concerning land frontiers, maritime boundaries, territorial sovereignty, the non-use of force, non-interference in the internal affairs of States, diplomatic relations, hostage-taking, the right of asylum, nationality, guardianship, rights of passage and economic rights. ICJ has been criticized for its limited effectiveness, rigid and time-consuming proceedings, and its many debacles. Criticisms of the International Court range from its rulings, its procedures, to its authority. Many scholars have often felt the need to reform the ICJ through a broad interpretational approach towards jurisdictional disputes.

Despite its shortcomings and the many failures it has experienced, the ICJ has had a positive effect on the development of International Law and the propagation of the principles of sovereignty, non-conquest, human rights and the rights of existence and self-defense of a state. In addition the ICJ has helped resolve disputes between the states with some degree of success, and given the numerous difficulties it faces, its achievements are respectable and its usefulness is undeniable. Most importantly, the ICJ, at the very least, provides an additional option for the states to settle their disputes peacefully through third party intervention, and this has reduced the threat of open war. The ICJ provides an option for the states to settle their disputes peacefully through third party intervention.

This book contains articles that deal with the ICJ as an important source of International Law, the jurisdictional powers of ICJ in territorial disputes, Legitimacy of the advisory opinion of ICJ, Interpretation of the ICJ on International Conventions, the reasons for decreased use of ICJ by top-ten economies and finally few recommendations for the effective working of ICJ.

The article "A Primer on International Law" by Dr. Tom O'Connor is the curtain raiser article for this book. It gives insight into the significance of ICJ as an important source of International Law. The article discusses that the ICJ operates by majority rule and arrives at decisions by international conventions, treaties, customs, reason, authority and the general principles of law recognized by civilized nations. The International Law deals with the conduct of states and of international organizations and with their relations among themselves as well as with persons whether natural or juridical. The article emphasizes the importance of treaties and diplomacy in international law and highlights the ICJ's consideration of customary general practice as law with the help of few cases decided by the ICJ.

In "Territorial Disputes at the International Court of Justice" author Brian Taylor Sumner discusses about the different categories of justifications for territorial claims, their evolution and application in geography, political science and law. The author discusses the usage of tripartite hierarchy by the ICJ while analyzing territorial disputes and criticizes this hierarchy in the light of modern territorial disputes. Nine categories are discussed to give justification for sovereignty. They are treaties, geography, economy, culture, effective control, history, uti possidetis, elitism and ideology. The article also analyzes nine land disputes adjudicated by the ICJ. It analyzes the claims for sovereignty involved in territorial disputes, applies tripartite hierarchical decision rule that looks first at treaty law, then to uti possidetis and finally to effective control and discusses the implications of ICJ's decision rule in territorial disputes.

Yuval Shany in "Capacities and Inadequacies: A Look at the Two Separation Barrier Cases" critically assesses the differences between international and national legal proceedings in the case of Israel's West Bank controversial separation barrier. The parties to domestic courts produce all pertinent evidence to support their case as the judgment is expected to be complied with them but in the ICJ, being a weak institutional machinery for enforcement and non-binding in nature of advisory opinions, the parties hardly co-operate. The author discusses the facts of the case in detail and its proceedings before the Supreme Court of Israel and the ICJ. The author asserts that the difference in judgment of both courts is due to different capacities and political points of reference of the two judicial bodies. Finally, it is suggested that national and international courts should accord deference to the authority of other courts belonging to different legal systems. They should co-operate with one another within a mutual comity so that they can either stay proceedings, in the face of impending or parallel proceedings on related matters before other judicial forums.

In the article "The Legitimacy of the ICJ's Advisory Competence in the Shadow of the Wall" the author Dr. Tomer Broude examines the legitimacy of the advisory function of ICJ in the light of the Wall's output and not the legitimacy of the wall opinion itself. It tries to clarify whether the ICJ has promoted or undermined international law in giving the advisory opinion. Advisory opinion is only to make the United Nations enlightenment as to the course of action it should take. The author highlights the loopholes in the competency of the advisory function of ICJ in the light of wall case. The author finally propounds that in order to be effective the advisory function of ICJ should adhere to the minimum standards of fairness and legitimacy practised by national tribunals. A judicial decision to be effective must be positively legitimated by the court in the manner in which it processes, constructs and justifies its decisions.

"Invoking Self-Defence as a Subterfuge for acts of Aggression in International Law: A Closer Look at the Conflict in Lebanon between Israel and Hezbollah (2006)" by Victor Kattan examines the factual situation that led to conflict between Israel and Hezbollah in 2006 and assess its legal ramifications. The author taking into consideration the press reports, interviews with the actual participants in the conflict, the reports of human rights organizations etc., concludes that the act of Israel was premeditated, it had the blessings of US and UK and hence it is not an act of self-defense but act of aggression. The article criticizes Israel's recourse to armed force with the principles and norms of international law as set out in the charter of the United Nations. The author makes reference to Nicaragua vs The United States of America, where the ICJ ruled that a mere frontier incident does not amount to an armed attack triggering the applicability of Article 51 of the UN charter. The ICJ in its advisory opinion on Legality of the Threat or use of Nuclear Weapons held that exercise of self-defense is subject to the conditions of necessity and proportionality, which is a rule of customary international law.

The article "Don't Mention the War (On Terror): Framing the Issues and Ignoring the Obvious in the ICJ's 2005 Armed Activities Decision" by Guy Fiti Sinclair evaluates the decision of ICJ in Armed Activities on the Territory of the Congo with regard to a wide range of important issues in international law like, concept of self-defense, the prohibition against the use of force, belligerent occupation, application of international human rights law and international humanitarian law and the illegal exploitation of natural resources. The article highlights that the silence of ICJ in responding to the issue of 'act of aggression' by Uganda. Different judges in the ICJ expressed different opinions due to fundamental divisions within the court over methodology and approach and the separate opinions construct and maintain hermetic separation between law and politics. The judgment remains silence on the political controversies surrounding the issue of "war on terror".

In "Does the ICJ's Decision in Avena Really Mean anything to Mexicans on Deathrow?" by Kenneth Williams, the article deals with the decision given by ICJ in disputes related to the rights of convicted foreign nationals to consular notifications. The article highlights the importance of Article 36 of the Vienna Convention on Consular Relations and discusses major judicial competence and judicial remedies. The Avena judgment deals with several pertinent issues of international law, such as nationality, consular relations, and diplomatic protection. The disputes arising out of application of the convention comes under the compulsory jurisdiction of the ICJ. The article discusses cases decided by the ICJ, in which it held that the United States is bound to review and reconsider the convictions and sentences on Mexican nationals. The decisions of ICJ in three significant cases with regard to the US obligations under the Vienna Convention are discussed.

"Explaining the Decreased Use of International Courts - The Case of the ICJ" by Janina Satzer presents the background information of ICJ and its usage. It explains the reasons why top-ten economies of the world are reluctant to use the ICJ as a means of conflict resolution. The author asserts that the ICJ judges vote in favor of their home states about 90 percent of the time including voting for the states that appointed them. The ICJ is criticized for acting as a quasi-political body rather than an independent court. The top-ten economies possess much more efficient mechanisms than the international dispute resolution by the ICJ to secure national interests. The data of ICJ case record from 1946-2003 reveals that weak states are using the ICJ frequently. Interestingly, top-ten economies are not applicants dragging other powers into the court but are respondents being sued by other weak states.

Bingbin Lu in "Reform of the International Court of Justice - A Jurisdictional Perspective" examines the criticism faced by the ICJ for its limited effectiveness and many failures it has experienced. The article begins with brief introduction to the court and an overview of the ICJ's jurisdiction by way of some case studies and finally suggests few reforms. One of the causes of limited effectiveness of the ICJ is due to the fact that powerful states hardly submit their disputes to the ICJ as they feel that the ICJ's recognition of ICJ jurisdiction would infringe their sovereignty. Reasons for limited effectiveness are explained in detail. Finally, the author suggests that instead of the focusing on substantial reforms to ICJ, it is better to reconstruct the international judicial system.

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