International Court of Justice

International Court of Justice

 

Basics and Background:
  • The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
  • Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods for the pacific settlement of disputes between States. Some of these methods involve the services of third parties.
  • The evolution of modern international arbitration:
    • The Jay’s Treaty of 1794 between the United States of America and Great Britain.
    • The Alabama Claims arbitration in 1872 between the United Kingdom and the United States.
    • The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II
  • With respect to arbitration, the 1899 Convention provided for the creation of permanent machinery, known as the Permanent Court of Arbitration, established in 1900 and began operating in 1902.
  • Various plans and proposals submitted between 1911 and 1919, both by national and international bodies and by governments, for the establishment of an international judicial tribunal, which culminated in the creation of the Permanent Court of International Justice (PCIJ)
  • Subsequently, H. Hackworth (United States) committee was entrusted with preparing a draft Statute for the future international court of justice in 1945.
  • In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last President of the PCIJ.
  • The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America).
  • The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

 

Qualifications for ICJ Judge:
  • A judge should have a high moral character.
  • A judge should fit to the qualifications of appointment of highest judicial officers as prescribed by their respective states or.
  • A judge should be a juriconsult of recognized competence in international law.

 

Composition:
  • The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
  • The 15 judges of the Court are distributed in following regions:
    • Three from Africa.
    • Two from Latin America and Caribbean.
    • Three from Asia.
    • Five from Western Europe and other states.
    • Two from Eastern Europe.
  • In order to be elected, a candidate must receive an absolute majority of the votes in UNGA and UNSC.
  • In order to ensure a measure of continuity, one third of the Court is elected every three years and Judges are eligible for re-election.
  • It is assisted by a Registry, its administrative organ. Its official languages are English and French.

 

Presidency of the ICJ:
  • The President and the Vice-President are elected by the Members of the Court every three years by secret ballot.
  • The election is held on the date on which Members of the Court elected at a triennial election are to begin their terms of office or shortly thereafter.
  • An absolute majority is required and there are no conditions with regard to nationality. The President and the Vice-President may be re-elected.
  • The President presides at all meetings of the Court; he/she directs its work and supervises its administration, with the assistance of a Budgetary and Administrative Committee and of various other committees, all composed of Members of the Court.
  • During judicial deliberations, the President has a casting vote in the event of votes being equally divided.
  • In The Hague, where he/she is obliged to reside, the President of the Court takes precedence over the doyen of the diplomatic corps.

 

Jurisdiction and Functioning:
  • ICJ acts as a world court with two fold jurisdiction i.e. legal disputes between States submitted to it by them (contentious cases) and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies (advisory proceedings).
  • Only States which are members of the United Nations and which have become parties to the Statute of the Court or which have accepted its jurisdiction under certain conditions, are parties to contentious cases.
  • States have no permanent representatives accredited to the Court. They normally communicate with the Registrar through their Minister for Foreign Affairs or their ambassador accredited to the Netherlands.
  • The judgment is final, binding on the parties to a case and without appeal (at the most it may be subject to interpretation or, upon the discovery of a new fact, revision).
  • By signing the Charter, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party.
  • A State which considers that the other side has failed to perform the obligations incumbent upon it under a judgment rendered by the Court may bring the matter before the Security Council, which is empowered to recommend or decide upon measures to be taken to give effect to the judgment.
  • ICJ discharges its duties as a full court but, at the request of the parties, it may also establish ad hoc chambers to examine specific cases.
  • Advisory proceedings before the Court are only open to five organs of the United Nations and 16 specialized agencies of the United Nations family or affiliated organizations.
  • Opinions provided by the court in advisory proceedings are essentially advisory and not binding.

 

Limitation of ICJ
  • ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the material resources made available to the Court.
  • It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court,it does not have a prosecutor able to initiate proceedings.
  • It differs from the Courts which deal with allegations of violations of the human rights conventions under which they were set up, as well as applications from States at which courts can entertain applications from individuals that is not possible for the International Court of Justice.
  • The jurisdiction of the International Court of Justice is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS).
  • The Court is not a Supreme Court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.
  • The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute on its own initiative. Neither is it permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.
  • The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.
  • It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

 

Indian Judge at the ICJ
  • Justice Dalveer Bhandari won the election to the International Court of Justice with 183 of 193 votes in UN General Assembly and all 15 at UNSC voting in his favour.
  • India thanked UN members for supporting the re-election of its judge to the International Court of Justice (ICJ) and said the process reflected respect for its constitutional integrity and independent judiciary.
  • The UN Security Council and the General Assembly voted overwhelmingly in support of India.
  • Justice Dalveer Bhandari won the votes in the UN General Assembly to make it to the International Court of Justice after UK pulled out the race.
  • The extraordinary support from the UN membership is reflective of the respect for strong constitutional integrity of the Indian polity and independent of the judiciary in India.
  • Mr Bhandari will fill the fifth vacancy for the 2018-2027 term.
  • India’s strategy of portraying the UNGA as the “voice of the people” and the UNSC as the “voice of the global elite” yielded dividends.

Indian Judges at the ICJ

  • Judge Dalveer Bhandari: Member of the Court since 27 April 2012
  • Raghunandan Swarup Pathak: 1989-1991
  • Nagendra Singh: 1973-1988
  • Sir Benegal Rau: 1952-1953

 

Significance for India:
  • Analysts say the election result was crucial for India to gauge the support it enjoys in the world body where New Delhi has been campaigning for reforms, including a permanent seat for itself in the powerful Security Council.
  • The re-election is also crucial as it ensures India’s continued influence at the ICJ where the Kulbhushan Jadhav case against Pakistan will come up next month.
  • India has moved the International Court of Justice (ICJ) against Pakistan, accusing the latter of violating the Vienna Convention in the case of Indian spy Kulbhushan Jadhav, who was handed a death sentence by a Field General Court Martial (FGCM) last month.
  • India requested the ICJ to ensure that Jadhav’s death sentence is suspended and declared a violation of the Vienna Convention on Consular Relations.
  • The re-election was a positive affirmation of Indian diplomacy.
  • This was the first time that a permanent member of the United Nations Security Council (UNSC) was in direct contest with a non-member for the post of a judge at the ICJ. And India clinched the deal in the end.

 

Kulbhushan Jadhav Case:
  • Kulbhushan Jadhav was arrested in March 2016 by Pakistani security forces in Balochistan province after he reportedly entered from Iran.
  • He was sentenced to death by a Pakistani military court on the charges of espionage and terrorism in April 2017.
  • India has always maintained that Kulbhushan Jadhav is not a spy, and that Pakistan should provide counsellor access to him as his case pertains to abduction from the Iranian territory.
  • In May 9, 2018, ICJ has stayed his death sentence after India had moved a petition before the UN body to seek justice for him, alleging violation of the Vienna Convention on Consular Relations by Pakistan.
  • During the latest hearing in the case on February, 2019, India said Pakistan’s continued custody of Indian national Kulbhushan Jadhav without any consular access should be declared “unlawful” as it was an egregious violation of the Vienna Convention.
  • Harish Salve, who is representing India and Kulbhushan Jadhav in the ICJ, said Pakistan was using the issue of Kulbhushan Jadhav as a “propaganda tool” without even following the due proper procedure.

Vienna Convention on Consular Relations

  • The Vienna Convention on Consular Relations is an international treatythat defines consular relations between independent states.
  • A consul, (who is not a diplomat) is a representativeof a foreign state in a host country, who works for the interests of his countrymen.
  • Article 36of the Vienna Convention states that foreign nationals who are arrested or detained in the host country must be given notice without delay of their right to have their embassy or consulate notified of that arrest.
  • If the detained foreign nationalso requests, the police must fax that notice to the embassy or consulate, which can then verify the person.

 

Vienna Convention on Diplomatic Relations

  • It is an international treaty of 1961 which gives a framework for diplomatic relations between independent countries.
  • It specifies the privileges of a diplomatic mission that enable diplomats to perform their functions without fear of coercion or harassment by the host country.
  • It forms the legal basis for diplomatic immunity.
  • India is a party to both the above conventions.

 

Difference between International Court of Justice and International Criminal Court:

 

BASIS INTERNATIONAL CRIMINAL COURT INTERNATIONAL COURT OF JUSTICE
Relationship with the United Nations Independent; UN Security Council may refer matters to it Primary judicial branch of the UN.
Members 105 members 193 members (all members of the United Nations).
Derives authority from The Rome Statute Charter of the United Nations and the Statute of the International Court of Justice.
Scope of work Criminal matters – investigating and prosecuting crimes of genocide, crimes against humanity, and war crimes Civil matters- settling legal disputes between the member-states and giving advisory opinions on international legal issues
Jurisdiction Only the member nations of the ICC, which means around 105 countries. Can try individuals. All the member nations of the UN, which means 193 countries. Cannot try individuals and other private entities.
Composition 1 prosecutor and 18 judges, who are elected for a 9-year term each by the member-states which make up the Assembly of State Parties with all being from different nations 15 judges who are elected for a 9-year term each and are all from different nations.
Funding Funded by state parties to the Rome Statute and voluntary contributions from the United Nations, governments, individual corporations, etc. Funded by the UN.

 

ICJ On Decolonization of Mauritius:
  • International Court of Justice (ICJ) in an advisory opinion has said that Britain has to handover Chagos Archipelago to complete the process of decolonization of Mauritius.
  • According to Britain, the request for an advisory opinion by the Government of Mauritius circumvents a vital principle, that a State is not obliged to have its bilateral disputes submitted for judicial settlement without its consent.
  • Mauritius has maintained that Britain’s “unilateral” decision to ban the right of return of Chagossians (African Tribe) and to renew the lease for the US base on Diego Garcia, one of the Chagos Islands, breached international law.

 

Way Forward
  • The International Court of Justice is endowed with both a privileged institutional status and procedural instruments whose potential is frequently underestimated.
  • The International Court of Justice is a component, not only of the machinery for the peaceful settlement of disputes created by the Charter but also of the general system for the maintenance of international peace and security it established.
  • Its jurisprudence had helped to consolidate the Organization’s role and place in the international legal order by clarifying its legal status as an international organization and the scope of powers with which it was entrusted.
  • Its decisions had also shed light, within the institution itself, on the functioning and responsibilities of the Organization’s principal organs and on those functions’ limits.
  • Moreover, the Court had pronounced itself in texts adopted by the General Assembly, thereby strengthening the cooperation in the promotion and development of international peace.
  • Recently, the Court had the opportunity to reiterate that finding in its opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,which had been delivered in 2004.
  • The Court had recalled that, although the Security Council had primary responsibility for the maintenance of international peace and security under Article 24 of the Charter, its responsibility was not exclusive.
  • Turning to “Crimes against humanity”, while the Rome Statute regulated “vertical relationships” between the International Criminal Court and its States Parties, it did not prescribe any obligations regarding adoption of national laws on such crimes or inter-State cooperation.
  • The current work would create “Horizontal Relationships” among States and regulate inter-State cooperation, strengthening the international community’s efforts to prevent those crimes.