ICJ & Peaceful Settlement of Disputes

Dr. Monica Narang, (University of Jammu, J&K, India)court clarified preciously unclear areas of international lawand contributed towards overall development of the nation.The outbreak of war in 1939 gave a serious blow to PCIJ.In 1942 various super powers declared themselves in favourof the establishment of an International Court of Justice.In April 1945 a committee of jurists set up by thesponsoring Powers of the United Nation at San Franciscoprepared a report in which it was declared that the PCIJshould cease to exist and a new court (ICJ) should be set up.The present ICJ is based on PCIJ.International Court of Justice is one of the principaljudicial organs of the United Nations (Article 7 of the Statuteof ICJ). The court has a broad interpretational approachtowards jurisdictional disputes.The International Court of Justice plays a part in thepeaceful settlement of International dispute in furtherance ofthe first purpose of the United Nations – “to bring about bypeaceful means and in conformity with the principles ofjustice and International Law”. ICJ preserves the characterof arbitration which holds importance in International Law(Procedures in International Law by Gernot Biehlor,Springer, Verlag Berlin Heidelberg, p. 285).International disputes after comprise various aspects–political, legal, economic, social and cultural. The ICJ actssolely to legal consideration and work together with politicalorgans of United Nations while preserving its Judicialintegrity. 1 Article 92-96 of the United Nations Charter dealwith the provisions of the International Court of Justice. 2All the members of United Nations are ipso facto membersof the statute of ICJ. Any state which is not a member ofUnited Nations may also become a part to statute of ICJ onthe recommendation of Security Council or on the conditionslaid down by the General Assembly (Art. 93 of the U.N.Charter).390

Journal of Asia Pacific Studies ( 2012) Volume 2 No 3The ICJ is composed of 15 judges elected to 9 years termsby the U.N. General Assembly and the UN Security Councilfrom a list of persons nominated by the National groups inthe Permanent court of Arbitration – Judges Serve for 9years terms and may be re-elected for up to two furtherterms. All the decisions of the Court are on the basis of themajority of the judges. The seat of the court is at the Hague.This does not prevent the court from sitting and exercisingits functions elsewhere when ever the court considers itdesirable (Art 22 of the Statute of ICJ).The jurisdiction of the court comprises all cases whichthe parties refer to it and all matters specially provided forin the charter of the United Nations or in treaties andconvention in force. ICJ is not the only International Court.There are regional court such as European Court of HumanRight (ECHR) and or there are many specialisedinternational courts such as International Criminal Court,but ICJ remains the only court that continues the traditionof the Permanent Court of securing the pacific settlement ofInternational disputes.The ICJ have no original jurisdiction and only the explicitand voluntary submission of a defendant in a given case willestablish the court’s jurisdiction. 4The disputes which are referred to the court decide the casesin accordance with international law and apply:a) international conventions whether general orparticular;b) international custom, as evidence of a general practiceaccepted as law;c) the general principles of law recognized by civilizednations;d) judicial decisions and teaching of most highly qualifiedpublicists of the various nations as subsidiary meansfor the determination of rules of law (Article 38 of thestatutes of ICJ). 5Under article 36, paragraph 1, of the Statute, the Courthas jurisdiction over all cases which the parties refer to it;such reference would normally be made by the notification ofa bilateral agreement known as a compromis. As would391

Dr. Monica Narang, (University of Jammu, J&K, India)appear, however, from the Court’s Yearbooks a documentconcluded by the parties as a ‘Special Agreement’, ratherthan a compromis, has become more recently the most usualform used for bringing a case before the Court. The provisionin article 36, paragraph 1, is not to be taken as meaning thatthe Court has jurisdiction only if the proceedings areinitiated through a joint reference of the dispute by thecontesting parties. A unilateral reference of a dispute to theCourt by one party, without a prior special agreement, willbe sufficient if the other party or parties to the disputeconsent to the reference, then or subsequently. It is enoughif there is a voluntary submission to jurisdiction (ie theprinciple of forum prorogatum), and such assent is notrequired to be given before the proceedings are instituted orto be expressed in any particular form. 6Only states may be parties in cases before the Court, butthe Court is empowered to obtain or request informationfrom public international organisations relevant to thesecases, or such organisations may furnish this information ontheir own initiative (see article 34 of the Court’s Statute).Moreover, the Court has been given jurisdiction under theStatutes of the Administrative Tribunals of the UnitedNations and of the International Labour Organisation (ILO)to determine by advisory opinion whether judgments of thesetribunals have been vitiated by fundamental errors inprocedure, etc, and in that connection upon requests for anadvisory opinion by the international organisationsconcerned, may take into account written observations andinformation forwarded on behalf of individuals, ie, theofficials as to whom the judgments have been given.The Court has compulsory jurisdiction where:1. The parties concerned are bound by treaties orconventions in which they have agreed that the Courtshould have jurisdiction over certain categories ofdisputes.2. The parties concerned are bound by declarations madeunder the so-called ‘Optional Clause’ – paragraph 2 ofarticle 36 of the Statute. This clause appeared in theformer Statute, in substantially the same terms as in392

Journal of Asia Pacific Studies ( 2012) Volume 2 No 3the present Statute. It now provides that the parties tothe Statute may at any time declare that theyrecognize as compulsory ipso facto and without specialagreement ‘in relation to any other State accepting thesame obligation’, the jurisdiction of the Court in alllegal disputes. 7The court jurisdiction is two fold:a) to decide contentious cases;b) to give advisory opinions.In contentious cases – the exercise of the court’sjurisdiction is conditional on the consent of the partiesto the dispute. Under Art. 36 of ICJ – The Court hasjurisdiction over all cases with the parties refer to itand such reference would be made by the notificationof a bilateral agreement.Article 36(2) of ICJ confers optional jurisdiction uponthe court which provides that the state parties mayconfer compulsory jurisdiction upon the court bymaking such declaration in respect of any other statewhich also accept similar obligations.8The state party to the statute may confer compulsoryjurisdiction upon the court in respect of followingmatters:i) Interpretation of a Treaty.ii) Any question of International Law.iii) The existence of any fact which if established wouldconstitute a breach of International obligation.iv) The nature and extent of the reparation to be madefor the breach of an international obligation.9In reaching decision, the Court applies generalprinciples, treaties and judgement of authorities in thefield of International law.393

Dr. Monica Narang, (University of Jammu, J&K, India)It can take decision Ex AEQUO ET BONO (according towhat is just and fair), as well as by the tenets ofexisting International law.Article 41 of ICJ provides that the court shall havepower to indicate if it considers that circumstances sorequire, any provisional measures which ought to betaken to preserve the respective rights of either party.Further, pending the final decision, notices of themeasures suggested shall be given to the parties andsecurity council.ICJ contributes for the peaceful settlement ofInternational disputes with contentions jurisdictionmentioned within the provision of the statute of thecourt.Some of the cases decided under contentiousjurisdiction:i) The Corpa Channel Case10, ICJ (1949) – In thiscase, the court settled the matter relating selfdefence,intervention and innocent passage.ii) Nuclear Tests Case11, ICJ (1969) (New Zealand V.France) – In this case ICJ dealt with law relating tostate responsibility in respect of conduct of nucleartests.iii) Nicaragua V. U.S.A.12 (1984) – In this case, thecourt indicated provisional measures asking theU.S. to immediately cease and refrain from anyaction restricting, blocking or endangering accessto and from Nicaragua posts and in particulariv)laying of mines.Germany V. Italy13 (2008) – This case is concernedwith the Jurisdictional Immunities of the state.v) Costa Rica V. Nicaragno14 (2010) – In this case ICJrendered its decision concerning navigational andother rights in relation to the San Juan river.Advisory Opinions :394

Journal of Asia Pacific Studies ( 2012) Volume 2 No 3Under Art 65 of ICJ, “the court may give on advisoryopinion on any ‘legal question’ to any body which has beenauthorized in accordance with the Charter of U.N. or inaccordance with the Statute of ICJ.Under Art 96 of UN Charter, “The Security Council andthe General Assembly may request to the court to give anadvisory opinion on any ‘legal question’, arising within thescope of their activities if so authorized by the GeneralAssembly”.Court’s advisory opinions are consultative in characterand as such do not generally result in judgement that aim toresolve specific controversies.i) Incident of Advisory Opinions: The competence ofGeneral Assembly regarding Admission of a State toU.N. – The Court’s advisory opinion in 1950, theworld court ruled that for a state to be admitted tothe U.N. both the affirmative recommendation ofthe security council and decision of the GeneralAssembly is necessary.ii) Reparation of the Injuries suffered in the service ofthe U.N. (1949) – In its advisory opinion – ICJ ruledthat the UN is a legal person and has capacity toclaim compensation for injuries suffered by thepersons who are in the service of the U.N.iii) On 9th July 2004 – ICJ, rendered it AdvisoryOpinion in the case concerning the legalconsequences of the construction of a wall in theoccupied Palestinian Territory. In its opinion, thecourt gave the advisory opinion requested by theUNGA that the construction of the wall being builtby Irsael, the occupying power in the occupiedPalestinian Territory including in and around EastJerusalem and its associated regime is contrary tointernational law.The Decision of ICJ on difference occasions has played asignificant role in the peaceful settlement of disputes. TheCourt has dealt with major questions in conformity withinternational law.395

Dr. Monica Narang, (University of Jammu, J&K, India)The court has delivered judgement on dispute concerningland frontiers and maritime boundaries, territorialsovereignty, the non-use of force, non-interference in theinternal offers of a states, dipliomatic relations, hostagetaking, the right of asylum, natonality, right of passage andeconomic right.The court has contributed towards dispute resolutionmechanism. ICJ has interpreted and applied the existingrules in such a way so as to resolve issues affecting the lifeof the nations.Disputes come before ICJ which was the subject ofbilateral negotiation and debates in Security Council of U.N.While case is pending before ICJ, the UK and Icelandconcluded an agreement on the matter through bilateralnegotiations (U.K. V. Iceland (Fisheries Jurisdiction) 1974,ICJ. The existence of this agreement was naturallyconsidered by the Court after its conclusion during thehearing on the merits. Several Judges asked council whetherthe agreement between the parties rendered the proceedingsbefore the court meaningless. U.K. indicated that judgementmight be helpful to on-going negotiations on long termarrangement beyond the present agreement between theparties. The court asserted that such agreement should beencouraged as being in line with the aim of the UN tosupport the peaceful settlement of dispute.In the event of a dispute as to whether the court hasjurisdiction, matter shall be settle by the decision of thecourt (Art. 36, Para-6).It Fisheries Jurisdiction case, (Spain V. Canada) (1998),ICJ pointed out that the establishment of jurisdiction is nota matter for the parties but for the court itself. Although aparty seeking to assert a fact must bear the burden ofproving it. 16Since 1946, the court has delivered judgement ondisputes concerning land frontiers, maritime boundaries,territorial sovereignty, the use of force, non-interference in396

Journal of Asia Pacific Studies ( 2012) Volume 2 No 3the internal affairs of a state, diplomatic relations, hostagetaking, the right of asylum, nationality and right of passage(Malanczuk, 1997).ReferencesBiehlor, Gernot. (2008). Procedures in International Law,Springer – Verlag Berlin Heidelberg.Das, P.K. (2003). International Law Document, Universal LawPublishing Co. Pvt. Ltd., pp. 30-31.Jurist. (2006). Public International Law, C. Jamnadas & Co.Educational & Law Publishers, p. 236.Kapoor, S.K. (2007). International Law and Human Rights,Central Law Agency, p. 567.Malanczuk, Peter. (1997). Akehurst’s Modern Introduction toInternational Law, Routledge, p. 290.National Judges and Judges adhoc of the ICJ. (1999).International and Comparative Law Quarterly, Vol. 48.Rajaram, Kalpana. (2004). Intrnational Organisations,Conferences and Treaties, Spectrum Book Pvt. Ltd., pp.192-194.Schewebl, Stephen M. (1999). U.N. Chronicle, DictmarPrager.Starke, J.G. (1994). International Law, Oxford UniversityPress pp. 445-450. See also, Weigall, David. (2002).International Relations, Arnold Publishers, p. 123.397