The International Court of Justice

An article by Unnimaya T. K and Fathima Zahra P.I of Government Law College, Thrissur


The world we live in today is a globalized world which has led to coordination and cooperation amongst different countries. This has further led to the attainment of peace and harmony in the world. Every country is a sovereign country irrespective of whether they are democratic, monarchical etc. Over the course of time, some mutual differences may arise between states which can lead to severe problems cropping up. As there is no supreme authority at the international level to regulate state power and mediate state related problems, there is a need for a regulatory authority at the international level to resolve any disputes that may arise between states. The International Court of Justice (ICJ) is one such body which embodies this attempt to encourage peaceful relations amongst states.

The International Court of Justice, also known as the World Court, is the main judicial organ of the United Nations. It was established in June 1945 by the Charter of the United Nations and began work by April 1946. It settles disputes between states in accordance with international law and provides advisory opinions on international legal issues. 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.

History of the International Court of Justice:

Prior to the advent of the International Court of Justice, the international body which resolved disputes between the states was the Permanent Court of International Justice, which was brought into being by the League of Nations. However, after the Second World War, the Permanent Court of International Justice lost its relevance. Then, there was a need to establish a similar body and thus, the International Court of Justice was established in the year 1945. The first case related to the incidents in the Corfu Channel was submitted by the United Kingdom against Albania in May 1947.

Composition of the Court:

The International Court of Justice is composed of 15 judges elected to nine-year terms of office by the United Nations General Assembly and the Security Council. These organs vote simultaneously but separately. To be elected, a candidate must receive an absolute majority of the votes in both bodies.

To ensure a degree of continuity, one third of the Court is elected every three years. Judges are eligible for re-election. Should a judge die or resign during his or her term of office, a special election is held as soon as possible to choose a judge to fill the unexpired part of the term. Elections are held in New York (United States of America) during the annual autumn session of the General Assembly.

The current President of the ICJ is Abdulqawi Ahmed Yusuf from Somalia and the Vice-President is Xue Hanqin of China. Judge Dalveer Bhandari is a judge from India and has been a member since April 27, 2012.

Jurisdiction of the Court:

The International Court of Justice acts as a world court. The Court’s jurisdiction is twofold:

· jurisdiction in contentious cases and,

· advisory jurisdiction

In the exercise of its jurisdiction in contentious cases, the International Court of Justice settles disputes of a legal nature that are submitted to it by States in accordance with international law. An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict, or a clash of legal views or interests. Only States may apply to and appear before the International Court of Justice. International organizations, other authorities and private individuals are not entitled to institute proceedings before the Court.

Since States alone are entitled to appear before the Court, public (governmental) international organizations cannot be parties to a case before it. However, a special procedure i.e., the advisory procedure, is available to such organizations and to them alone. This procedure is available to five United Nations organs, fifteen specialized agencies and one related organization.

Indian cases before ICJ:

The list of cases of the International Court of Justice includes contentious cases and advisory opinions brought to it since its creation. Forming a key part of International law, 177 cases have been entered on to the general list for consideration before the court. Data from the ICJ website indicates that India had been involved in 6 cases at the ICJ and four of these cases had Pakistan as the opposite party.

1. Portugal v. India – Right to passage over Indian territory[1]

Portugal filed a case in 1955 at the ICJ claiming that it had a right of passage through the territory of India to ensure communications between its territory of Daman and the enclaved territories of Dadra and Nagar-Haveli. Portugal argued that this right comprises of the transit of persons and goods and the passage of representatives and armed forces which was necessary to exercise the sovereignty of its territories. India on the other hand, contented that the suspension of the passage became necessary owing to the abnormal situation in Dadra and the tension created in the surrounding Indian territory. In 1960, the Court came to conclusion that there was no fault on part of India and that it has not acted contrary to its obligations.

2. India vs Pakistan, 1971- Appeal regarding jurisdiction of ICAO[2]

India filed a case against Pakistan in 1971 contending that the Council of International Civil Aviation Organization (ICAO) had no jurisdiction on an application and a complaint filed by Pakistan. India further contented that any agreement between the two countries is governed by the Special Regime of 1966. The ICJ while rejecting Pakistan’s objection that it had no jurisdiction to entertain India’s appeal, also held that the ICAO was indeed competent to entertain the complaint made to it by Pakistan. At the same time, it also mentioned that the ICAO needed guidance and pointed out multiple procedural lapses made by the ICAO.

3. Pakistan vs India, 1973- The trial of Pakistani prisoners of war[3]

Pakistan filed a case in 1973 for instituting proceedings against India in the case of charges of genocide against 195 Pakistani nationals, prisoners of war, and civilian internees in the Indian custody. Pakistan informed the ICJ that both the Indian and Pakistani governments held discussions and came to an agreement on the issue. Pakistan also informed the court that they are not going ahead with the proceedings in this case.

4. Pakistan vs India, 1999- Aerial Incident of 1999[4]

Pakistan had filed a case in 1999, regarding a dispute relating to the destruction of a Pakistani aircraft by India in the same year. Pakistan contented that the ICJ had jurisdiction in this issue. India on the other hand contested the jurisdiction of ICJ in the issue saying that Pakistan’s application to the ICJ did not refer to any treaty or convention in force between the two countries. In 2000, the Court rejected Pakistan’s contention that the Simla Accord provides for disputes between the two countries to be submitted to the International Court of Justice. The court concluded that it had no jurisdiction to entertain the application filed by Pakistan. At the same time, the court requested both the countries to settle their dispute by peaceful means.

5. Marshall Islands vs India, 2014- Cases about the obligation of negotiation of nuclear arms race[5]

The republic of the Marshall Islands had instituted proceedings at the ICJ in 2014 against all nuclear weapon states, including India, contending the breach of customary law obligations on nuclear disarmament (from Article VI of the NPT). India contented that the ICJ had no jurisdiction in this case. In 2016, the Court ruled that it does not have any jurisdiction on the issue in the absence of a dispute between the two countries. The Court further ruled that it cannot proceed to the merits of the case because of the lack of jurisdiction.

6. India vs Pakistan, 2017- case of Kulbushan Sudhir Jadhav[6]

Kulbhushan Sudhir Jadhav was arrested by Pakistan on 3rd March 2016 on the suspicion that he was a spy sent by India to conduct subversive activities in Pakistan. India was informed of Jadhav’s arrest on 25th March 2016 after an inexplicable 22-day delay. India claimed that Jadhav, who was carrying on a business in Iran post retirement, was abducted and tried on false and fabricated charges of terrorism and espionage. Consequently, India made repeated requests for consular access to Jadhav, to visit him and arrange for his legal representation. This was denied by Pakistan and conditions were framed upon receiving India’s assistance for investigation against Jadhav. Eventually, Jadhav was sentenced to death by Pakistan’s military court on the ground of espionage and terrorism on 10th April 2017. India filed a case before the International Court of Justice on 8th May 2017 accusing Pakistan of egregious violation of the Vienna Convention on Consular Relations (VCCR). On 18th May 2017, the ICJ indicated provisional measures and ordered Pakistan to ensure that Jadhav was not executed pending a final decision in the case. The ICJ rejected Pakistan’s objections to the admissibility of the application of India with a ratio of 15 to 1 and held that Pakistan was in clear violation of the rights and obligations. Pakistan breached the obligation incumbent upon it under Article 36 of the Vienna Convention on consular relations.

Conclusion

The International Court of Justice has played a vital role in settling disputes between various states and has made great developments in the field of international law. Its role in maintaining international peace and harmony is of utmost importance in today’s scenario.

Reference:

1. https://www.un.org/en/model-united-nations/international-court-justice

2. https://www.icj-cij.org/en/

3. https://www.icj-cij.org/en/case/32/summaries

4. https://www.orfonline.org/expert-speak/the-kulbhushan-jadhav-verdict-a-certain-win-with-uncertain-outcomes-53188/

5. https://en.wikipedia.org/wiki/List_of_International_Court_of_Justice_cases

[1] Portugal v. India (1960) ICJ Rep 6. [2] India v. Pakistan (1972) ICJ 46. [3] Pakistan v. India, (1973) ICJ 328. [4] Pakistan v. India (2000) ICJ 12. [5] Marshall Islands v. India (2016) ICJ 255. [6] India v. Pakistan (2017) ICJ 168.

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