International Court of Justice: Unlocking the Key Facets
The International Court of Justice (hereinafter referred to as ‘ICJ’), the entire notion was conceived by the Hague Conference of 1897 and 1907, the UN Charter resonates the position of ICJ as Principle Judicial organ under Article 92 of the UN Charter, the election of the Judges are done through ‘Root Philimore Plan 1920’, the appointment by the General Assembly upon the recommendation of Security Council amongst the selected Judges from Permanent Court of Justice and national legal system.
The position of Judge of ICJ is of high office, since the Judges are conferred with diplomatic immunities and privileges. In order to mitigate any cumbersome process there is establishment for the chamber summary procedure for the speedy dispatch of business by five judges, further a special chamber for settlement of environmental dispute was constituted in 1993. The Chamber system is based on the convience of the parties. The Rules of the Court supplements the ICJ statute, it was amended five times i.e. 1942, 1972, 1978, 2000 and 2005.
Jurisdiction of the Court
The court cannot formally create law, the court could only specify its scope, and this was the reflection in the Advisory Opinion in the Legality to the threat or use of nuclear weapon. Moreover, it is intertwined with political factor as pointed by Judge Lachs putforth in the Lockerbie case, which acts as guardian of legality for the International community as a whole. The function of the court is to state the law a clarity which was enveloped in the North Cameroon case. The most pivotal case in the court’s docket is Serbia and Montenegro V. U.K, 2004, p.1307, three criterions to take up in the case prior to ascertaining the jurisdiction:
b) Certitude, grounds more secure in law;
c) Principle Judicial organ of UN.
The dispute should be of a legal character, one capable of being settled by applying the principle of International Law, the task cannot be stretched (Congo V. Uganda ICJ Report, 2003). If one looks closely in a dispute there are two facets, firstly the legal dimension which is determined by the ICJ and secondly the political dimension which is addressed by the Security Council.
Nature of Legal Dispute
In several cases ICJ has attempted to de-mystify, what constitutes a ‘Legal Dispute’, which is indicative of progressive development of the world court in creation of law. In the Mavvommatis Palestine Concession (Jurisdiction) case the court defined a legal dispute as ‘disagreement over a law or fact’. Subsequently, in Georgia V. Russia and Burkina Faso V. Mali, 2013, the court applied the ‘objective determination test’, i.e. claim of one party is positively opposed by the other. Further, Section 21 of the UN Headquarters agreement reaffirmed that in order for a dispute to subsist, there has to be assertion by either of the parties. In the El Slavador/Hondorus case, the ICJ opined that dispute to exist it is sufficient to merely deny the point of law. The contemporary view of the court is dealt in the Belgium V. Senegal and Marshall Island V. India case respective wherein the court went for “Objective awareness test” ( Dissenting opinion by James Crawford).
The question of jurisdiction has to be resolved by the court, once the court assumes jurisdiction the case is listed as ‘Res Judicata’, subject only to revision under Article 61 of the Statute of ICJ. In certain instances states not parties to ICJ, jurisdiction is assumed according to the procedure as envisioned in the statute vis a vis security council resolution 9, condition under which states be open to states. Here one has under preliminary objection, which is to assert the jurisdiction of the parties; the court could in three ways look into the preliminary objection:
a) Uphold the challenge;
c) Entitled to be answered.
Article 36(1)of the statute of ICJ dealing with special agreement or compromise , the main point to remember is the Jurisdiction of the court is founded on the consent of the parties, this is inferred from the conduct of the parties. Consent established subsequent to the initiation of the proceedings is referred to as doctrine of ‘Forum Prorogatum’.
In the Corfu Channel Case, U.K sought to found jurisdiction in accordance to Article 25 of the Charter.
Article 36(2) deals about ‘Optional Clause’, i.e. all legal dispute concerning;
a) Interpretation of a treaty;
b) Question of International Law;
c) Breach of International Obligation.
States are to recognize compulsory ipso facto jurisdiction, by the end of 1984, 47 declarations were deposited with UN Secretary-General. In Cameroon V. Nigeria (preliminary objection Case) the court discussed the nature of such declaration, the thing is both declarations must grant jurisdiction to the court regarding the dispute in question. Reservation of the declaration is based on the principle of “Vital Interest”, for example the ‘Connally Amendment” by U.S, jurisdiction of a particular state from the Jurisdiction of American legislation, and also the ‘Vandenburg Reservation’ which states: ‘Jurisdiction of the court is excluded in the case of a multilateral treaty unless all the parties to the treaty affected by the decision.
Another point of contention is whether the question of Erga Omnes obligation is sufficient to confer jurisdiction to the court negating the consent factor, this was the entire point of debate in East Timor Case, wherein the court was categorical in stating that Consent and Erga Omnes obligation has to be seen in a different light.
Unlike domestic law, the process of adducing evidence in International Law is flexible, if established that there is a breach of International Law, Article 48, 49 and 50 of the ICJ articulates various ways like the credibility of expert opinion, agent to produce document and explanation. The court may also make on-site visit, by invoking Article 44(2) of the statute along with Rule 66 of the Rules of the court. This was done by the court in two circumstances viz in River Meuse and Gabcikovo Nagymaros case.
Provisional Measures vested in the court, further extrapolates the jurisdiction of the court, the object under Article 41 is to preserve the rights of either parties. In the Nuclear Test and Fisheries Jurisdiction case, only in case of urgent necessity provisional order could be pressed into service. In one of the controversial case in ICJ, La Grande, the court applied Article 33(4) to avoid prejudice to the rights of the parties.
Again counter-claims, which is subject-matter of the application (additional claim), Article 80 of the Rules of the court, the claim should be directly connected with the subject-matter of the claim of the other parties. With regard to enforcement, Article 60 it is clear that decision is final without appeal, the court will not look into the enforcement part. The interpretation of the Judgment envisioned under Rule 98(1) of the statute, in case of dispute regarding the scope of the Judgment, it must place due regards to the operative part of the Judgment.
Many scholars have chastised ICJ as court of jurisdiction and numerous flaws have been created courtesy the states vital interest hogging the limelight, also the role of International Organization to become part of the contentious case is often emphasized. Moreover, the role played by the secretary-General to give advisory opinion rather than the ICJ is marked by numerous jurist. The world court lost it dignity in the 1990’s in the Lockerbie case, wherein it had to bow down to Security Council, thanks to the Security Council Resolution 748 vis-à-vis Article 103, placing Security Council at a higher pedestal to that of ICJ. Modern International Law has been a constant battle between organs of United Nations.