International Court of Justice

INTRODUCTION

The International Court of Justice (ICJ) also referred to as the World Court is one of the six principal organ of the United Nations (UN) and the main judicial organ. The ICJ was established by the Charter of the United Nations in June 1945 and began working in the subsequent year. It is seated at the Peace Palace in The Hague (Netherlands).

The main role of ICJ is twofold: (a) Settlement of legal disputes submitted to it by States in accordance with international law and; (b) Rendering advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

In the words of Judge Hersh Lauterpacht, ‘the primary purpose of the ICJ lies in its function as one of the instruments for securing peace in so far as this aim can be achieved through law’. The ICJ is the only International Court that adjudicates general disputes between countries, and its rulings and opinions are one of the primary sources of international law.

Since its first case in 1947, the ICJ has the ICJ has entertained 181 cases through September 2021.

This article gives a brief account of the ICJ and highlights the issues with respect to the enforcement of its verdict due to open defiance or partial or non- compliance. The article also throws light on the ongoing dispute between Ukraine and Russia and the role of ICJ in light of these events.

HISTORY

The Hague Peace Conference of 1899 (the Conference), initiated by the Russian Czar Nicholas II created the first permanent institution for the purpose of settling international disputes.

The Conference involving the world’s major powers and several smaller states resulted in the first few multilateral treaties concerned with the conduct of warfare. One of such treaties was the ‘Convention for the Pacific Settlement of International Disputes’ (the Convention), which provided for the institutional and procedural framework for arbitral proceedings which led to the establishment of the Permanent Court of Arbitration (PCA) in 1899.

In 1907, a second Hague Peace Conference involving majority of Sovereign States of the world revised the convention and enhanced the rules governing arbitral proceedings before the PCA. During this conference, the United States, the Great Britain and Germany proposed for the establishment of a permanent court whose judges would serve full-time but the proposal was temporarily shelved.

Between 1911 and 1919, many plans and proposals were made for the establishment of an international judicial tribunal and the First World War propelled the creation of the League of Nations (the League). The League, established by the Paris Peace Conference of 1919 was the first intergovernmental organization to be established with an aim to maintain peace and security.

Article 14 of the League’s Covenant became the basis of a permanent body called the Permanent Court of International Justice (PCIJ). The PCIJ had the role of adjudicating any international dispute submitted to it by the contesting parties, and of providing an advisory opinion upon any dispute or question referred to it by the League.

The Assembly of the League unanimously adopted the PCIJ Statute in 1920 and it was signed and ratified by a majority of members. The PCIJ reflected the principal legal systems of the world.

The widespread acceptance of the PCIJ was evident from the fact that many international treaties and agreements conferred jurisdiction upon it over certain categories of disputes. The PCIJ played a pertinent role in clarifying many ambiguities in international law.

However, the growing international tension after 1933, led to the decline of the PCIJ and the Second World War triggered its end.

After the war, several efforts were made by US and UK to re-establish an international court. A conference of the major Allied Powers (China, the USSR, the U.K., and the U.S.) was held on 18.10.1943 at Moscow (the Moscow Conference). The Moscow conference issued a joint declaration underlining the necessity of establishing a general international organization.

Following the Moscow Conference, the Allied conference at Dumbarton Oaks, United States (October, 1944) and San Francisco Conference (25 April – 26 June 1945) included a proposal for establishment of an intergovernmental organization including an international court and decisions on establishing an entirely new court as a principal organ of the new United Nations and forming a statute based upon PCIJ Statute.

Consequently, at the First Session of the United Nations General Assembly and Security Council in 1946, the election of the first members of the ICJ took place. By April 1946, the PCIJ was formally dissolved. In May 1947, the first case was submitted to the ICJ by the United Kingdom against Albania concerning Corfu Channel incidents. The ICJ Statute is the main constitutional document constituting and regulating the Court.

The enforcement of the ICJ’s rulings is mentioned under Chapter XIV of the United Nations Charter (UN Charter). However, such enforcement is subject to the veto power of the five permanent members of the Council.

JURISDICTION

According the Article 93 of Chapter XIV of the UN Charter that stipulates about the International Court of Justice; all UN members automatically become parties to the ICJ statute. Article 93 also states that “A state which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.”

Parties to the ICJ Statute are entitled to participate in cases before the Court. However, being a party to the ICJ Statute does not automatically confer jurisdiction of the ICJ over all the disputes between such parties.

In contentious cases (adversarial proceedings on a dispute), the ICJ produces a binding ruling between the States that agree to submit to the ruling of the Court. The jurisdiction of ICJ is limited only to those contentious cases wherein parties consent to submit the dispute to the ICJ by means of Special Agreement or Compromissory Clauses in a binding treaty, Optional Clause declarations accepting the jurisdiction of ICJ or declarations made under the PCIJ Statute or on the basis of tacit consent.

The UN Charter grants the General Assembly or the Security Council a power to request the ICJ to issue an advisory opinion on any legal question with an objective to seek the Court’s help in deciding complex legal issues. Such advisory opinions are non-binding in nature.

LAWS APPLIED

Article 38 of the ICJ Statute provides for the laws which can be applied by the Court in deciding cases. It involves international conventions, international custom and the general principles of law recognized by civilized nations. It may also refer to academic writing and previous judicial decisions to help interpret the law.

Article 59 of the ICJ Statute clearly states that “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

As per Article 59, the common law notion of precedent or stare decisis does not apply to the decisions of the ICJ. The court’s decision binds only the parties to that particular controversy.

The ICJ can also make equitable decision based on what is fair under the circumstances only if the parties agree.

COMPOSITION

The ICJ is composed of 15 judges, with the limit of only one judge from each nationality. The judges are elected for a term of nine years by the United Nations General Assembly and the Security Council.

The judges must collectively reflect the foremost forms of civilizations and principal legal systems of the world. The ICJ is assisted by a Registry, its administrative organ. The official languages of the ICJ are English and French.

JUDICIAL PRECEDENTS

Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua V. The United States of America), 1986 I.C.J. 14

In 1909, the United States (US) overthrew the President of Nicaragua under an armed intervention, occupied parts of the territory of Nicaragua and formed a pro-US Government. Pursuant to a major peasant uprising in 1927, the US Marines withdrew and the after events led to the establishment of a dictatorship until 1979.

The devastating effects of the 1972 earthquake resulted in a revolution bringing Sandinista (FSLN) to power in 1979. An anti-Sandinista group, called the Contras was funded and aided by the US.

Nicaragua filed an application to the ICJ against US and demanded the ceasure of all military and paramilitary actions and reparations. Nicaragua contended that:

The US supported and aided military and paramilitary actions in and against Nicaragua, and is resultantly violated its treaty obligations to Nicaragua under Article 2 (4) of the United Nations Charter, Articles 18 and 20 of the Charter of the Organization of American States, Article 8 of the Convention on the Rights and Duties of States and Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of Civil Strife.
The US, by violating the sovereignty of Nicaragua by using force and the threat of force against Nicaragua, intervening in the internal affairs of Nicaragua, infringing upon the freedom of the high seas and interrupting peaceful maritime commerce, and killing, wounding and kidnapping citizens of Nicaragua; has breached the customary international law.

The US objected to ICJ’s jurisdiction in this matter on the basis that the US signed the treaty accepting the Court’s decision as binding, subject to the reservation that the Court would not have jurisdiction over cases based on multilateral treaty obligations unless all parties to the treaty are involved or the United States specially agreed to jurisdiction. The US also argued on the right of collective self defence.

On the question of jurisdiction, the ICJ held that it has jurisdiction on the basis of Article 36 of the Statute of the International Court of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation and that it can decide the case based on customary international law obligations.

The ICJ held that the US is responsible for breach of its obligation under customary international law not to intervene in the affairs of another State, law not to use force against another State, not to violate the sovereignty of another State and not to interrupt peaceful maritime commerce and for breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation.

The Court noted that the US is under the duty to cease and to refrain from all such acts which may constitute breaches and make reparations to the Republic of Nicaragua.

The Court rejected the ‘right of collective self-defence’ justification given by US.

The United States did not participate in the proceedings in this case. It further withdrew its consent to the compulsory jurisdiction of the ICJ. The US refused to comply with the Court’s directions. In 1986 the United Nations General Assembly passed, by a vote of 94-3, a non-binding resolution urging the US to comply.

Further, Nicaragua’s effort to get the judgment enforced in the Security Council was blocked by the US thereby raising question on the locus standi of ICJ.

Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening) ICJ Rep 2002

Nigeria and Cameroon have been involved in a territorial dispute over the Bakassi Peninsula and areas in the Lake Chad Basin for at least twenty years. Both the states asserted their sovereignty over the disputed territories for it had significant resources.

No diplomatic progress could be made through years of bilateral negotiations. The growing tension led to armed conflicts between the two States thereby resulting in deaths of many soldiers. Cameroon filed an application to the ICJ in 1994.

Cameroon submitted the case unilaterally and for the jurisdiction of ICJ, it relied on the declarations of both the States expressing adherence to Article 36(2) of the ICJ Statute. Nigeria contested the ICJ’s jurisdiction on the basis that both the States agreed to settle the dispute through existing bilateral channels. Nigeria participated throughout the Court proceedings.

The judgment allocated the Bakassi Peninsula, the Lake Chad boundary and 30 villages to Cameroon and a few to Nigeria. The maritime related rulings were in favour of Nigeria and it was allocated much of the boundary between Lake Chad and Bakassi. The ICJ obligated the parties to withdraw their military establishments from the affected areas ‘expeditiously and without condition’. The ICJ drew the maritime boundary in a manner favourable to the intervenor, Equatorial Guinea.

Post the judgment, Nigeria issued an official statement stating its acceptance of the favourable parts of the decision and refusal to comply with the rest. Nigeria excused for non-compliance by relying on its Constitutional Principles of Federalism. So, its position was of deliberate indifference as it neither accepted nor rejected the verdict.

Although, earlier both States agreed to abide by the decision of the ICJ, Nigeria refused to accept the existence of any such agreement. At the time, Nigeria was going through tremendous internal political pressure not to comply with the judgment especially with respect to Bakassi as various large Nigerian groups opposed it and called for war, if necessary. Concerns were also raised by Ethnic Nigerians as they feared unequal treatment and persecution by Cameroon.

To ensure compliance, the international community, specifically the US, United Kingdom and France subjected Nigeria to substantial diplomatic pressure. They asserted the binding nature of the judgment, the agreement of the parties to respect the Court’s ruling and the obligation of Nigeria under the UN charter to comply with the judgment. This substantially reduced the possibility of war and pushed Nigeria to establish a dialogue with Cameroon.

Upon the request of both states, the UN set up a commission to consider the implications of the verdict, protect the rights of the people in the affected areas, and propose a workable solution. The recommendations of the Commission with respect to Lake Chad were implemented by both the States. The high tension over Basakki peninsula possessing vast oil resources also eased over a period with UN intervention and assistance.

Finally in 2006, both states entered into an agreement setting out a ‘Comprehensive Resolution of the Dispute’ over the Bakassi peninsula in reliance upon the ICJ demarcation.

Thus, despite the judgment of the ICJ, Nigeria’s initially resisted to comply with the ruling and the compliance for the same was achieved only after timely intervention of the UN and substantial influence from the international community.

India v. Pakistan (Kulbhushan Jadhav), 2019

A case that caught a lot of public attention is wherein the State of Pakistan sentenced a former Indian Navy officer to death on the charges of Espionage and Terrorism. India after failed cooperation to get consular access invoked the compulsory jurisdiction of ICJ and inter alia alleged that Pakistan has violated the Vienna Convention by failing to give consular access to Kulbhusan Jhadav.

ICJ by a thumping majority of 15-1 concluded that the State of Pakistan has violated Article 36 of the Vienna Convention which requires a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access.

The ICJ also directed the State of Pakistan to provide Mr. Jadhav an effective review and reconsideration remedy even if it requires a change in existing legislation as the existing remedy of review clemency is limited and ineffective.

In pursuance of this Pakistan has recently passed Justice (Review and Re-consideration) Bill, 2020 to provide an effective mechanism of review to Mr. Jadhav. However, the said Bill lacks spirit in complying with the ICJ judgment.

This is one judgment wherein the judgment of the ICJ was not complied with by either of the Parties to the decision.

UKRAINE- RUSSIA CONFLICT

ICJ in a press release stated that the Court would pass its decision soon on Ukraine’s application for provisional measures in a case accusing Russia of carrying out acts of genocide in Ukraine.

Ukraine invoked the jurisdiction of ICJ under Article 36 of the Convention on the Prevention and Punishment of the Crime of Genocide [Genocide Convention]of which both the concerned States are parties and submitted its arguments in which Russia declined to participate.

Ukraine’s primary argument is two-fold i.e., first, Russia’s justification of its military operation stating that Ukrainian Government has committed genocide on the people of the Donbas region is a fabricated claim and secondly, the Russian Government is intentionally killing and inflicting serious injury on the members of Ukrainian nationality thereby committing an act of genocide under Article II of the Genocide Convention.

Contending that there is an irreparable loss and urgency, Ukraine claimed immediate suspension of all military operations by Russia in Ukraine. Ukraine also sought reparation for the loss suffered by Ukraine due to the alleged act of genocide by Russia and also an assurance of non-repetition in the future as a final relief.

To substantiate its argument, reliance was placed on the ICJ judgment in the Republic of Nicaragua v. The United States of America and Bosnia and Herzegovina v. Serbia and Montenegro in which it was observed by the ICJ that: ‘use of force cannot be justified in the name of claiming rights under the convention and states should act within the permitted limit under international law’.

AMLEGALS Remarks

The two main criticisms of ICJ have been its Compulsory Jurisdiction and Implementation of its judgment. The Compulsory Jurisdiction of ICJ depends wholly on the consent of the member states thus the states cannot be compelled to be subject to the jurisdiction of the ICJ.

States often object to the same in light of the important political issues that maybe at stake. Cases like Nicaragua involving vehement objection to the ICJ’s jurisdiction makes the compulsory jurisdiction seem illusory.

Another contentious issue with ICJ is the implementation of the judgment. Article 94 of the UN Charter provides that each member of the United Nations undertakes to comply with the decision of the ICJ in any case to which it is a party.

However, there is no specific framework within the ICJ statute through which it could mandate the enforcement of its judgment rather the recourse available to an aggrieved party in case of non-compliance is to move to the UN Security Council to enforce the judgment. This makes it is even more non-viable for an aggrieved party to enforce a judgment against permanent members of the UN Security Council who have the veto power as seen in the Nicaragua case where US blocked the enforcement of the ICJ award against it.

As far as the Ukraine- Russia conflict is concerned, it cannot be said with certainty whether Russia would comply with the directions if any, passed against it, especially in the light of it declining to participate in the proceedings and having the power of veto in UNSC owing to its permanent membership.

–Team AMLEGALS assisted by Mr. Aditya Baheti and Ms. Kirti Dhoke (Interns)

For any query or feedback, please feel free to get in touch with chaitali.sadayet@amlegals.com or aditi.tiwari@amlegals.com.