However, no lasting concrete steps were taken until after the conclusion of the First World War. The Covenant of the League of Nations called for the formulation of proposals for the creation of a world court and in 1920 the Permanent Court of International Justice (EPIC) was created. It stimulated efforts to develop international arbitrary mechanisms. Together with arbitration, the Permanent Court was intended to provide a reasonably comprehensive system serving the international community.
It was intended as a way o prevent outbreaks of violence by enabling easily accessible methods of dispute settlement in the context of a legal and organizational framework to be made available. L The EPIC was superseded after the Second World War by the International Court of Justice (ICC), described in article 92 of the Charter as the ‘principal Judicial organ’ of the United Nations. In essence, it is a continuation of the Permanent Court, with virtually the same statute and Jurisdiction, and with a continuing line of cases, no distinction being made between those decided by the EPIC and those by the ICC.
The ICC is composed of fifteen members, elected regardless of their nationality, from among persons of high moral character, who possess the qualifications required in their respective countries for appointment to the highest Judicial offices, or are Jurist consults of recognized competence in international law. 2 The members of the Court are elected by the General Assembly and Security Council (voting separately) from list of qualified persons drawn up by the national groups of the Permanent Court of Arbitration, or by specially appointed national groups in the case of UN members that are not represented in the PICA.
The elections are staggered and take place once every three years, with respect to five Judges each time. In this way some element of continuity amongst the Court is maintained. They enjoy diplomatic privileges and immunities when on official business,4 and a Judge cannot be dismissed unless it is the unanimous opinion of the other members of the Court that he or she has ceased to fulfill the required conditions. 5 The Court elects a situated at The Hogue. The Court has also permitted the use of ad hoc Judges in advisory proceedings, although only where it has found that an opinion is requested upon a legal question’ actually pending between two or more states. The Rules of the Court, which govern its procedure and operations, were adopted in 1946 and revised in 1972 and 1978. The Court has the power to regulate its own procedure. Generally, the Court sits as full bench, but in the last fifteen years it has on occasion sat as a chamber. Articles 26-29 of the statute allow the Court to form smaller chambers, usually 3 or 5 Judges, to hear cases.
Two types of chambers are contemplated by Article 26: firstly, chambers for special categories of cases, and second, the formation f ad hoc chambers to hear particular disputes. In 1993 a special chamber was established, under Article 26(1) of the ICC statute, to deal specifically with environmental matters (although this chamber has never been used). The Jurisdiction of the International Court of Justice The International Court is a Judicial institution that decides cases on the basis of international law as it exists at the date of the decision.
The International Court of Justice is by virtue of article 92 of the Charter the ‘principal Judicial organ of the United Nations’. It is also, as Judge Laces put it, the guardian of legality for the international community as a whole, both within and without the United Nations’. 8 It has been emphasized that the function of the Court is to state the law and it can only decide on the basis of law. 10 It is to be noted that when choosing between various grounds upon which to accept or reject Jurisdiction, there are three criteria to guide the Court.
These were, first, consistency with previous case-law in order to provide predictability as ‘consistency is the essence of Judicial reasoning; secondly, certitude, whereby the Court should choose the ground most secure in law, and, hardly, as the principal Judicial organ of the United Nations, the Court should be ‘mindful of the possible implications and consequences for the other pending cases’. 11 The Court has also referred to the assessment of the legality of the possible conduct of states with regard to international legal obligations as an ‘essentially judicial task. 2 Accordingly, the task of the Court must be to respond, on the basis of international law, to the particular legal dispute brought before it. As it interprets and applies the law, it will be mindful of context, but its task cannot go beyond hat. ’13 The fact that the issue before the Court is the subject of active negotiations between the parties,14 or the subject of good offices activity by the UN Secretary- General 5 or the subject of consideration by the Security Councilors regional organizations,ill not detract from the competence of the Court or the exercise of its Judicial function.
The Court’s essential function is to resolve in accordance with international law disputes placed before it and to refrain from deciding points not included in the final submissions of the parties. 9 The provision as to international law relates to the sources of law available for application by the Court and is considered subsequently. 20 The obligation to decide was referred to by the Court in the Libya/Malta (Application for Permission to Intervene) case,21 where it was noted that it was the duty of the Court to give the fullest decision it may in the circumstances of each case’. 2 However, this obligation is subject, for example, to questions related to Judicial propriety. 24 The Court has Jurisdiction under article 36(1) of its Statute in all cases referred to it y parties, and regarding all matters specially provided for in the UN Charter or in treaties or conventions in force. 25 As in the case of arbitration, parties may refer a particular dispute to the ICC by means of a special agreement, or compromise, which will specify the terms of the dispute and the framework within which the Court is to operate. 6 This method was used in the Inquires and Screech case,27 and in a number of others. 28 The Jurisdiction of the Court is founded upon the consent of the parties,chichi need not be in any particular form and in certain circumstances the Court will infer it from the conduct of the parties. In the Correctional (Predetermination’s) case,30 the Court inferred consent from the unilateral application of the plaintiff state (thinned Kingdom) coupled with subsequent letters from the other party involved (Albania) intimating acceptance of the Court’s jurisdiction.
It is a well-established principle that the Court will only exercise Jurisdiction over a state with its consented and it ‘cannot therefore decide upon legal rights of third states not parties to the proceedings’. 32 As a consequence of this principle, the Court ill not entertain actions between states that in reality implied a third state without its consent. This rule was underlined in the Monetary Gold case. Apart from those instances where states specifically refer a dispute to it, the Court may also be granted Jurisdiction over disputes arising from international treaties where such treaties contain a ‘compromise clause’ providing for this. 34 In fact, quite a large number of international treaties, both bilateral and multilateral, do include a clause awarding the ICC Jurisdiction with respect to questions that might arise from the interpretation and application of the agreements. 35 Article 36(2) has been of great importance in extending the Jurisdiction of the International Court.
Article 36(2), the so-called ‘optional clause’, stipulates that: The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the Jurisdiction of the Court in all legal disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation.
Once the Court has established Jurisdiction, its treatment of the substance of the dispute will be framed by the terms of the Jurisdiction it has found exists, for the Court as a matter of principle cannot deal with issues that lie outside of the 36 However, the Court has the competence to determine the meaning of its own jurisdiction and may interpret the terms of the relevant compromise, or treaty or declaration as it deems appropriate in the circumstances. 37 The Nature of a Legal Dispute Subject to Adjudication by the International Court of Justice.
Article 36(2) of the Statute of the Court requires that a matter brought before it should be a legal dispute. Although it is not possible to point to a specific definition, the approach adopted by the Permanent Court in the Ambrosia’s Palestine Concessions Rustication) ceases constitutes the appropriate starting point. The Court declared that a dispute could be regarded as ‘a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons’. It is to be extinguished from a situation which might lead to international friction or give rise to a dispute.
This is a subtle but important difference since, for the process of settlement to operate successfully, there has to be a specific issue or issues readily identifiable to be resolved. In the Interpretation of Peace Treaties ceases the Court noted that Whether there exists an international dispute is a matter for objective determination’ and pointed out that in the instant case the two sides hold clearly opposite views concerning the question of the performance or the non-performance of certain treaty obligations’ so hat ‘international disputes have arisen’.
A mere assertion is not sufficient; it must be shown that the claim of one party is positively opposed by the other. 40 This approach was reaffirmed in the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement case,41 where the Court in an advisory opinion noted that the consistent challenge by the UN Secretary-General to the decisions contemplated and then taken by the US Congress and Administration with regard to the closing of the PLOP offices in the US (which of necessity included the PLOP
Mission to the United Nations in New York) demonstrated the existence of a dispute between the US and the UN relating to the Headquarters Agreement. In the East Timer ceases the Court again reaffirmed its earlier case-law and went on to note that ‘Portugal has rightly or wrongly, formulated complaints of fact and law against Australia, which the latter has denied. By virtue of this denial, there is a legal dispute. ‘ This acceptance of a relatively low threshold was underlined in the Application of the Genocide Convention (Bosnia and Herringbone v.
Yugoslavia) case, 3 where the Court stated that ‘by reason of the rejection by Yugoslavia of the complaints formulated against it by Bosnia-Herringbone, “there is a legal dispute” between them’. Such denial of the allegations made against Yugoslavia had occurred Whether at the stage of proceedings relating to the requests for the indication of provisional measures, or at the stage of the present proceedings relating to those objections’. 4 In other words, in order for a matter to constitute a legal dispute, it is sufficient for the respondent to an application before the Court merely to deny the allegations made even if the Jurisdiction of the Court is challenged. 45 While it is for the parties to put forward their views, and particularly for the to seize the Court,46 it is for the Court itself to determine the subject-matter of the dispute before it. 7 This will be done by taking into account not only the submission but the application as a whole, the arguments of the applicant before the Court and other documents referred to, including the public statements of the applicant. 48 Should the Court conclude that the dispute in question has disappeared by the time he Court makes its decision, because, for example, the object of the claim has been achieved by other means, then the ‘necessary consequences’ will be drawn and no decision may be given.
In all events, the determination on an objective basis of the existence of a dispute is for the Court itself. Evidences based on which the Disputes are resolved by the International Court of Justice. Unlike domestic courts, the International Court is flexible with regard to the introduction of evidence. 49 Strict rules of admissibility common in domestic legal systems do not exist here. 0 The Court has the competence inter alai to determine the existence of any fact which if established would constitute a breach of an international obligation. 1 It may make all arrangements with regard to the taking of evidence,52 call upon the agents to produce any document or to supply any explanations as may be required,53 or at any time establish an inquiry mechanism or obtain expert opinion. 54 The Court may indeed make on-site visits. 55 However, it has no power to compel production of evidence generally, nor may witnesses be subpoenaed, nor is there is any equivalent to proceedings for contempt of court. The Court will make its own determination of the facts and then apply the relevant rules of international law to those facts it has found to exist and which are necessary in order to respond to the submissions of the parties, including defenses and counter-claims. These findings of facts require an assessment of the evidence, which necessitates the Court deciding which of the material before it is relevant and of probative value with regard to the alleged facts. In so doing, the Court will make its own assessment of the weight, reliability and value of the evidence produced by the parties. However, the evidence of government and military figures of a state involved in litigation before the Court would be treated with ‘great reserve’. 58 The Court has also noted that witness statements produced in the form of affidavits should be treated with caution and in assessing such affidavits, a number of factors would have to be taken into account, including whether they had been made by state officials or private persons not interested in the outcome of the proceedings and whether a particular affidavit attests to the existence of facts or represents only an opinion with regard to certain events.
Evidence which is contemporaneous with the period concerned may, however, be of special value. Further, a statement by a competent governmental official with regard to boundary lines is likely to have greater weight than sworn statements of a private person. 59 Evidence which has been illegally or improperly acquired may also be taken into account, although no doubt where this happens its probative value would be adjusted accordingly. 0 In the second provisional measures order in the Application of the Genocide Convention (Bosnia v. Yugoslavia) case, for example, the Court was urine the oral hearings despite being ‘difficult to reconcile with an orderly progress of the procedure before the Court, and with respect for the principle of equality of the parties’. 61 In dealing with questions of evidence, the Court proceeds upon the basis that its decision will be based upon the facts occurring up to the close of the oral proceedings on the merits of the case.
In so far as the scope of the Court’s decision is concerned, it was noted in the Nicaragua case that the Court ‘is bound to confine its decision to those points of law which are essential to the settlement of the dispute before it’. In so doing, the Court will seek to ascertain the true subject of the dispute’ taking into consideration the submissions, the applications, oral arguments and other documents placed before it. Remedies given by The International Court of Justice There has been relatively little analysis of the full range of the remedial powers of the Court.
In the main, an applicant state will seek a declaratory Judgment that the respondent has breached international law. Such declarations may extend to provision for future conduct as well as characterization of past conduct. Requests for exclamatory Judgments may also be coupled with a request for reparation for losses suffered as a consequence of the illegal activities or damages for injury of various kinds, including non-material damage. 62 Such requests for damages may include not only direct injury to the state in question but also with regard to its citizens or their property. 3 The Court may also interpret a relevant international legal provision so that individual rights as well as state rights are recognized in a particular case, thus opening the door to a claim for damages on behalf of the former by the national state here there has been a breach of such rights. Reparation may conceivably extend to full restitution, or restitution in interregnum. 64 The Court in the Great Belt case allowed for the possibility of an order for the modification or dismantling of disputed works.
The question of restitution also arose in the Democratic Republic of the Congo v. Belgium case, where the Court concluded that Belgium was under an obligation to cancel the arrest warrant concerned on the basis of the need for restitution. 65 The issue of reparation was also raised in the Gab c Kobo-Anagram’s Project case, 6 where the Court concluded that both parties had committed internationally wrongful acts and that therefore both parties were entitled both to receive and to pay compensation.
In the light of such ‘intersecting wrongs’, the Court declared that the issue of compensation could be satisfactorily resolved in the framework of an overall settlement by the mutual renunciation or cancellation of all financial claims and counter-claims. 67 The parties may also request the Court’s assistance with regard to matters yet to be decided between the parties. Accordingly, in the Gab c Kobo-Anagram’s Project case, the Court, having reached its decision on the past conduct of the parties, proceeded in its Judgment to exercise its prescriptive competence, that is to determine what the future conduct of the Parties should be’. F the parties, and in effect treat it as a binding unilateral statement. In the Laggard case, the Court noted the ‘substantial activities’ that the US declared that it was carrying out in order to comply with the Convention in question and concluded that such behavior ‘expresses a commitment to follow through with the efforts in this Edgar’ and must be regarded as meeting Germany’s request for a general assurance of non-repetition. 69 In Cameroon v.
Nigeria, the Court referred, both in the text of its judgment and in the disposition, to a statement of the Camerawoman Agent as to the treatment of Nigerian living in his country and stated that it took note with satisfaction of the ‘commitment thus undertaken’. 70 The Court took a further step when, in the Laggard case, it referred to the ‘obligation … To review of the US in cases of conviction and death sentence imposed upon a foreign national whose rights under the Vienna Convention on Consular
Relations had not been respected,71 while in operative paragraph (7) of the disposition, the Court, by a majority of fourteen votes to one, concluded that in such situations, the United States of America, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention’. 72 Where the Court reserves the question of reparation to a later stage of proceedings, neither party may call in question such findings of the Court in the earlier Judgment as have become rest judicial and seek to re-litigate these findings.
Where the parties seek to negotiate a resolution by direct negotiations, the Court has emphasized that such negotiations have to be conducted in good faith and in order to find an agreed solution based on the findings of the Judgment of the Court in question. 73 Enforcement of the Judgment of the International Court of Justice Once given, the judgment of the Court under article 60 is final and without appeal. Although it has no binding force except between the parties and in respect of the particular case under article 59, such decisions are often very influential in the evolution of new rules of international law. 4 The Court itself is not concerned with compliance and takes the view that ‘once the Court has found that a state has entered into a commitment concerning its future conduct it is not the Court’s function to contemplate that it will not comply with it’. 75 Under article 94 of the UN Charter, each member state undertakes to comply with the decision of the Court in any case to which it is a party and if this does not occur, the other party may have recourse to the Security Council which may make recommendations or take binding decisions.
Examples of non-compliance would include Albania in the Corp.. Channel case,76 Iceland in the Fisheries Jurisdiction case and Iran in the Iranian Hostages case. However, since the sass the record of compliance has been generally good. For example, despite initial reservations, both Libya and Nigeria accepted the Judgments of the Court in favor of their opponents in the litigation in question. The political costs of non-compliance have to be taken into account by potentially recalcitrant states. Capacity to decide disputes between states, the ICC may give advisory opinions.
Article 65 of the Statute declares that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’, while article 96 of the Charter notes that as well as the General Assembly and Security Council, other organs of the UN and specialized agencies where so authorized by the Assembly may request such opinions on legal questions arising within the scope of their activities. 7 Unlike contentious cases, the purpose of the Court’s advisory Jurisdiction is not to settle, at least directly or as such, inter-state disputes, but rather to ‘offer legal advice o the organs and institutions requesting the opinion’. 78 Accordingly, the fact that the question put to the Court does not relate to a specific dispute does not affect the competence of the Court, nor does it matter that the question posed is abstract in nature.
Similarly, the fact that a legal question also has political aspects will not deprive the Court of its Jurisdiction, nor of its function, which is to assess the legality of the possible conduct of states with regard to obligations imposed upon them by international law. 79 In addressing the question put to the Court by a political organ f the I-IN, the Court will not have regard to the origins or the political history of the request nor to the distribution of votes with regard to the relevant resolution.
The fact that any answer given by the Court might become a factor in relation to the subject matter of the request in other for a is also irrelevant in determining the appropriate response of the Court to the request for the advisory opinion. Further, the lack of clarity in the drafting of the question would not deprive the Court of jurisdiction. Such uncertainty could be clarified by the Court as a matter of interpretation.
Indeed, the Court may ‘broaden, interpret and even reformulate the questions put’, seeing its role essentially as identifying the relevant principles and rules, interpreting them and applying them, thus offering a reply to the question posed based on law. 80 Originally, the Court took the broad view that it would not exercise its advisory jurisdiction in respect of a central issue in a dispute between the parties where one of these parties refused to take part in the proceedings.
However, the scope of this principle, which was intended to reflect the sovereignty and independence of states, as been reduced in a number of subsequent cases before the Court, so that the presumption is that the Court, subject to Jurisdictional issues, would answer a request for an advisory opinion.
In the Interpretation of Peace Treaties case, for example, which concerned the interpretation of the 1947 peace agreements with Bulgaria, Hungary and Romania, it was stressed that whereas the basis of the Court’s jurisdiction in contentious proceedings rested upon the consent of the parties to the dispute, the same did not apply with respect to advisory opinions. Such opinions ere not binding upon anyone and were given not to the particular states but to the an “organ of the United Nations”, represents its participation in the activities of the organization, and in principle should not be refused’.
Similarly, the Court emphasized in the Reservations to the Genocide Convention case that the object of advisory opinions was to guide the United Nations in respect of its own action’. Thus, the Court would lean towards exercising its Jurisdiction, despite the objections of a concerned party, where it would be providing guidance for an international body with respect to the application of an international treaty.
In fact, the Court has said that only ‘compelling reasons’ should lead the Court to refuse to give an opinion on grounds of propriety as distinct from grounds of lack of Jurisdiction. 81 In the Western Sahara case,82 the ICC gave an advisory opinion as regards the nature of the territory and the legal ties therewith of Morocco and Mauritania at the time of colonization, notwithstanding the objections of Spain, the administering power.
The Court distinguished the case from the Eastern Carmela dispute on a number of grounds, the most important being that the dispute in the Western Sahara case had risen within the framework of the General Assembly decentralization proceedings and the object of the request for the advisory opinion (by the Assembly) was to obtain from the Court an opinion which would aid the Assembly in the decentralization of the territory. 83 Accordingly, the matter fell within the Peace Treaties/Reservations cases category of opinions to guide the I-JNI.
The Court noted that it was the fact that inadequate material was available for an opinion that impelled the EPIC to refuse to consider the Eastern Carmela issue, notwithstanding that this arose because of a effuse of one of the parties to participate in the proceedings. In the Western Sahara case, an abundance of documentary material was available to the Court. 84 It is therefore evident that the general rule expressed in the Eastern Carmela case has been to a very large extent weakened. 85 However, it would not be correct to say that it has been entirely eroded.
There may indeed be circumstances where the lack of consent of an interested party may render the giving of an advisory opinion incompatible with the Judicial character of the Court. 86 Further, the need to have sufficient information and evidence’ to enable the Court to reach a Judicial conclusion still remains. 87 However, the primary criterion appears to be whether the request for an advisory opinion is made with the aim of obtaining assistance in the proper exercise of the functions of the requesting organ.
This poses the question as to the proper exercise of functions . 88 The advisory opinion in the Difference Relating to Immunity from Legal Process case was the first time the Court had received a request under article VIII, section 30, of the General Convention on the Privileges and Immunities of the I-IN, 1946, which allowed for recourse to the Court for an advisory opinion where a difference has arisen between the UN and a member state.
The particular interest in this provision is that it stipulates that the opinion given by the Court ‘shall be accepted as decisive by the parties’. The importance of advisory opinions delivered by the Court is Conclusion This project has tried to outline all the roles of the International Court of Justice. It deals with the Jurisdiction of the International Court of Justice I. E. The area under which I. C. J operates, it also deals with the advisory Jurisdiction of the International Court of Justice I. E. Under which I. C.
J advises internationally recognized States in various issues which has also been highlighted. This research project has made on all the findings that has been extracted from various Judgments of the International Court of Justice in various landmark international cases. The evidences based on which the International Court of Justice resolves disputes and gives Judgments have also been discussed in this research project. This research project also deals with enforcement of the Judgments of the International Court of Justice.