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.