The International Court of Justice (ICJ)

About:

• The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).
• It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
• 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).
• The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.
• The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council.
• It is assisted by a Registry, its administrative organ. Its official languages are English and French.

History:

• Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods for the pacific settlement of disputes between States. Some of these methods involve the services of third parties.
• Historically, mediation and arbitration preceded judicial settlement. The former was known in ancient India and the Islamic world, whilst numerous examples of the latter can be found in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval Europe, and in Papal practice.
• The modern history of international arbitration:
  • The first phase is generally recognized as dating back from the so-called Jay Treaty of 1794 between the United States of America and Great Britain.
  • The Alabama Claims arbitration in 1872 between the United Kingdom and the United States marked the start of a second, even more decisive, phase.
  • The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas II, marked the beginning of a third phase in the modern history of international arbitration.
• With respect to arbitration, the 1899 Convention provided for the creation of permanent machinery, known as the Permanent Court of Arbitration, established in 1900 and began operating in 1902.
• The Convention also created a permanent Bureau, located in The Hague, with functions corresponding to those of a court registry or secretariat, and laid down a set of rules of procedure to govern the conduct of arbitrations.
• Various plans and proposals submitted between 1911 and 1919, both by national and international bodies and by governments, for the establishment of an international judicial tribunal, which culminated in the creation of the Permanent Court of International Justice (PCIJ) as an integral part of the new international system set up after the end of the First World War.
• In 1943, China, the USSR, the United Kingdom and the United States issued a joint declaration recognizing the necessity “of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all peace-loving States, and open to membership by all such States, large and small, for the maintenance of international peace and security”.
• Subsequently, G.H. Hackworth (United States) committee was entrusted with preparing a draft Statute for the future international court of justice in 1945.
• The San Francisco Conference while keeping committee recommendations in mind decided against compulsory jurisdiction and in favour of the creation of an entirely new court, which would be a principal organ of the United Nations, on the same footing as the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and the Secretariat.
• The PCIJ met for the last time in October 1945 and resolved to transfer its archives and effects to the new International Court of Justice, which, like its predecessor, was to have its seat at the Peace Palace.
• In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting for the first time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last President of the PCIJ.

ICJ Composition

The ICJ is composed of 15 judges. 

• The judges have a tenure of nine years each.
• They are elected independently by the UNGA and the UNSC. The candidate should get an absolute majority in both the UNGA and the UNSC to be elected.
• No two judges can have the same nationality in the ICJ.
• Elections are held every three years for one-third of the seats, and retiring judges may be re-elected. 
• The members of the ICJ do not represent their governments but are independent magistrates. 
• The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law.
• The judges are distributed as per the regions:

• 3 from Africa
• 2 from Latin America and the Caribbean
• 3 from Asia
• 5 from Western Europe and other states
• 2 from Eastern Europe
• Among the 15 judges, there is a President, a Vice President and a Registrar.
• Every State government party to the Charter designates a group that proposes candidates for the office of ICJ judges.

ICJ Jurisdiction

The ICJ has two types of jurisdictions:

1. Contentious cases
   1. ICJ, in accordance with international law, settles disputes of legal nature that are submitted to it by states.
   2. Countries should apply and only then appear before the ICJ. International organisations, other authorities, and private individuals are not entitled to institute proceedings before the ICJ.
   3. The Court can only deal with a dispute when the States concerned have recognized its jurisdiction.
   4. The judgment is final, binding on the parties to the case and without an appeal.
2. Advisory opinions
   1. The advisory procedure is available to five UN Organs, fifteen Specialized Agencies, and one Related Organisation.
   2. Despite having no binding force, the Court’s advisory opinions nevertheless, carry great legal weight and moral authority and thus help in the development and clarification of international laws.

There is also a distinction between mainline and incidental jurisdictions. 

• Incidental jurisdiction relates to a series of miscellaneous and interlocutory matters; for example, the power of the Court to decide a dispute as to its own jurisdiction in a given case; its general authority to control the proceedings; its ability to deal with interim measures of protection; and the discontinuance of a case. 
• Mainline jurisdiction, on the other hand, concerns the power of the Court to render a binding decision on the substance and merits of a case placed before it.

Limitations of ICJ

ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to the material resources made available to the Court.

• It has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.
• The ICJ is not an apex court to which national courts can turn to. It is also not a court of last resort for people. It also does not act like an appeal court for international tribunals, however, it can make a ruling on the validity of the arbitration awards.
• The ICJ cannot suo moto take up a case. It can only hear cases or disputes when requested to do so by States. It can also not investigate and rule on acts of States.
• The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.
• It does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of cases, even those to which they consented to be bound.

Way Forward

The International Court of Justice is endowed with both a privileged institutional status and procedural instruments whose potential is frequently underestimated. It needs strengthening for the promotion and development of international peace.

Kulbhushan Jadhav Case

Kulbhushan Jadhav, an Indian naval officer, was arrested in March 2016 by Pakistani security forces in Balochistan province after he reportedly entered from Iran.

• He was sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017.
• On May 9, 2018, ICJ stayed his death sentence after India had moved a petition before the UN body to seek justice for him, alleging violation of the Vienna Convention on Consular Relations by Pakistan.
• In February 2019, India said Pakistan’s continued custody of Indian national Kulbhushan Jadhav without any consular access should be declared “unlawful” as it was an egregious violation of the Vienna Convention.
• In 2019, the ICJ has directed Pakistan to review the conviction order of Kulbhushan Jadhav and, until then, put his death sentence on hold. ICJ also asked Islamabad to allow New Delhi consular access at the earliest. This is a major diplomatic and legal victory for India in the  Jadhav case.
• In 2019, Pakistan granted consular access for Jadhav in line with the ICJ ruling.

Key Highlights of Judgement

• Pakistan Violated Vienna Convention: ICJ upheld that Islamabad had violated Article 36 of the Vienna Convention on Consular Relations, 1963, by not informing India about Jadhav’s arrest immediately after Pakistan Army had taken him into custody.
• ICJ found that India had been deprived of the ‘right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation’, which meant that Pakistan had breached obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations.
• The provisions of the 1963 Vienna Convention defines a framework for consular relations between countries.

Indian among the ICJ judges

In November 2017, India’s Dalveer Bhandari has been re-elected to the International Court of Justice (ICJ), after Britain pulled out its candidate Christopher Greenwood before the 12th round of voting. Bhandari’s term ends in 2027.

Election significance:

• Analysts say the election result was crucial for India to gauge the support it enjoys in the world body where New Delhi has been campaigning for reforms, including a permanent seat for itself in the UNSC.
• This is the first time that one of the five permanent members of the UNSC lost out to an ordinary member in a race.
• This is the first time in the 70-year history of the UN that the United Kingdom will not be on the ICJ.
• Although he does not represent the Indian government, having a judge of Indian origin is seen as a strategic asset.
• It particularly gains significance in the backdrop of the Kulbhushan Jadhav case.