International Court of Justice (ICJ) : Functions, Jurisdiction, Powers | UPSC Notes

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International Court of Justice (ICJ) : Functions, Jurisdiction, Powers | UPSC Notes

• The United Nations Charter set up the International Court of Justice (ICJ) in 1945, and it began to work in April 1946.

• It is the main legal body of the United Nations and is based in The Hague, Netherlands, at the Peace Palace.

• Unlike the other six main UN bodies, it is the only one that is not based in New York (USA).

• It settles legal issues between countries and gives advice on legal questions brought to it by authorised UN organs and specialised agencies, based on international law.It is made up of 193 state parties, and Joan E. Donoghue is the President right now.

Background of ICJ’s Formation

• In Article 33 of the United Nations Charter, there is a list of ways to settle disagreements between States in a peaceful way, such as through discussion, investigation, mediation, etc. Some of these ways depend on the help of outsiders.

• In the past, mediation and arbitration were used to settle disputes before going to court. The first was known in ancient India and the Islamic world, while the second has many examples in ancient Greece, China, Arabian tribes, marine customary law in mediaeval Europe, and the practise of the Pope.

• The modern history of international arbitration: The so-called Jay Treaty of 1794 between the United States and Great Britain is usually seen as the start of the first part.

In 1872, the United Kingdom and the United States went to court over the Alabama Claims. This was the start of a second, even more important phase.

The Hague Peace Conference of 1899, which was called by the Russian Czar Nicholas II, was the start of the third part of international arbitration in the modern era.

• The 1899 Convention set up a stable system for arbitration called the stable Court of Arbitration. It was set up in 1900 and started working in 1902.

• The Convention also set up a permanent Bureau in The Hague that has the same duties as a court registry or secretariat. It also made a set of rules for how arbitrations should be done.

• Between 1911 and 1919, different plans and proposals were made by both national and international groups and governments to set up an international court of justice. These plans and proposals led to the creation of the Permanent Court of International Justice (PCIJ) as part of the new international system set up after the First World War.

• In 1943, China, the USSR, the UK, and the US issued a joint declaration agreeing that “a general international organisation based on the principle of the sovereign equality of all peace-loving States and open to membership by all such States, big and small, for the maintenance of international peace and security” was needed as soon as possible.

In 1945, an American group led by G.H. Hackworth was given the job of writing a draught Statute for the future international court of justice.

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• The San Francisco Conference, which took into account committee recommendations, decided against compulsory jurisdiction and in favour of creating a new court. This new court would be a major organ of the United Nations, on the same level 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 decided to move its archives and effects.

Structure of International Court of Justice (ICJ)

• The Court is made up of 15 judges who are chosen for nine-year terms by the General Assembly and the Security Council of the United Nations. These parts vote at the same time, but in their own ways.

• A candidate must get an absolute majority of votes from both bodies in order to be chosen.

One-third of the Court is chosen every three years, and judges can run again if they want to. The ICJ’s administrative body, the Registry, helps the Court with its work. It has both English and French as its official languages.

• Of the Court’s 15 members, three are from Africa, two are from Latin America and the Caribbean, three are from Asia, five are from Western Europe and other countries, and two are from Eastern Europe.

• Unlike other parts of foreign organisations, the Court is not made up of government representatives. Members of the Court are independent judges who must first swear in front of the whole court that they will do their jobs in a fair and honest way before they can do their jobs.

• To protect his or her freedom, a member of the Court can’t be kicked off unless all of the other members agree that he or she no longer meets the requirements. In fact, this has never been the case.

Indian Judges at the ICJ

• Judge Dalveer Bhandari has been on the Court since April 27, 2012.

• Raghunandan Swarup Pathak: 1989-1991

• Nagendra Singh: 1973-1988

• Sir Benegal Rau: 1952-1953

How the ICJ works and what it can do (ICJ’s Jurisdiction and Functioning)

• The ICJ works as a world court with two types of cases: legal disputes between states that they bring to it (called “contentious cases”) and requests from UN organs and agencies for advice on legal questions (called “advisory proceedings”).

• Only states that are members of the United Nations and have signed the Court’s Statute or accepted its authority under certain conditions can be involved in a dispute.

• The Court does not have any permanent members from the states. They usually talk to the Registrar through their Minister for Foreign Affairs or their ambassador who is appointed to the Netherlands.

• When they are involved in a case before the court, an agent speaks for them. Since foreign relations are at stake, the agent is also, in a way, the head of a special diplomatic mission with the power to bind a sovereign State.

• The judge’s decision is final and cannot be appealed. At most, it can be interpreted differently or changed if new information comes to light.

• When a UN Member State signs the Charter, it agrees to follow the Court’s decision in any case in which it is involved.

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• A state can go to the Security Council if it thinks the other side hasn’t done what it was supposed to do according to a Court ruling. The Security Council can suggest or decide what needs to be done to put the ruling into effect.

• The way things are done as stated above is normal. But extraneous processes can change the way the main proceedings go.

• The ICJ does its work as a full court, but at the parties’ request, it can also set up ad hoc chambers to look into certain cases.

Advisory proceedings before the Court are only open to five organs of the United Nations and 16 specialised agencies or connected organisations. Opinions given by the court in advisory proceedings are mostly advisory and do not have to be followed.

What was the Kulbhushan Jadhav Case, and what did the International Court of Justice decide?

• Pakistani security forces caught Kulbhushan Jadhav in March 2016 in Balochistan area. He was said to have come from Iran.

• In April 2017, a Pakistani military court sentenced him to death for spying and terrorism.

• India has always said that Kulbhushan Jadhav is not a spy and that Pakistan should let him talk to a counsellor because he was taken from Iranian soil.

• On May 9, 2018, the International Court of Justice (ICJ) put a hold on his death sentence. This happened after India sent a plea to the UN body to get justice for him, saying that Pakistan had broken the Vienna Convention on Consular Relations.

• ICJ Ruling: In 2019, the ICJ said that international law required Pakistan to give Jadhav’s sentence a “effective review and reconsideration” in a way that Pakistan chose.

• Pakistan’s Response: In response to the ICJ’s ruling, the Pakistani government passed a special law that lets Jadhav file a review.

The International Court of Justice (Review and Reconsideration) Bill, 2021, was passed by Pakistan’s parliament in order to follow the ICJ’s ruling.But India said that the law has a number of “weaknesses” and that steps need to be taken to follow the ICJ’s order “in letter and spirit.”

How was India involved with the ICJ in other cases?

Besides the Kulbhushan Jadhav case, India has been involved in five other cases at the ICJ, three of which involved Pakistan. • Right of Passage through Indian Territory (Portugal v. India, which came to an end in 1960).

• Appeal about the ICAO Council’s authority (India vs. Pakistan, ended in 1972).

• The trial of Pakistani war prisoners (Pakistan vs. India, 1973) came to an end.

• The Air Incident of August 10, 1999, between Pakistan and India, which ended in 2000.

• Obligations about talks about stopping the nuclear arms race and getting rid of nuclear weapons (Marshall Islands v. India, ended in 2016).

Limitations on the Functioning of ICJ

• The ICJ has some problems, most of which are structural, situational, or have to do with the material means available to the Court.

• It doesn’t have the power to try people for war crimes or crimes against humanity. Since it is not a criminal court, there is no lawyer who can start the process.

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• It is different from courts that deal with allegations of violations of the human rights conventions for which they were set up, as well as requests from states. Individuals can’t make requests to the International Court of Justice, while courts can. • The International Court of Justice has a general jurisdiction, which is different from the International Tribunal for the Law of the Sea.

• The Court is not a Supreme Court that national courts can go to for help, and it is not a last option court for individuals. It is also not a court of appeals for any foreign court. It can, however, decide whether or not arbitral decisions are valid.

• The Court can only look into a disagreement if one or more States asks it to. It can’t take care of a disagreement on its own. It is also not allowed by its Statute to examine and decide on the actions of sovereign States in any way it wants.The ICJ only has power if people agree to it, not because they have to.It doesn’t have a full split of powers because permanent members of the Security Council can stop cases from going forward even if they agreed to be bound by them.

Way Forward

• The International Court of Justice has a special institutional standing and procedural tools that are often undervalued in terms of their usefulness.The International Court of Justice is a part of both the Charter’s system for settling issues peacefully and the general system for keeping international peace and security.The Court made three kinds of changes to the institutional law of the United Nations. Its jurisprudence helped to solidify the Organization’s role and place in the international legal order by making clear its legal standing as an international organisation and the range of powers it was given.Its decisions have also helped the institution understand how the Organization’s main organs work and what their limits are. The Court has also given its opinion on texts that have been approved by the General Assembly, which has strengthened cooperation in the promotion and development of international peace.

• In its 2004 ruling, “The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,” the Court had the chance to say again that this was what it had found.The Court had reminded everyone that even though Article 24 of the Charter says that the Security Council is in charge of keeping international peace and security, it is not the only one.

• Turning to “Crimes against humanity,” the Rome Statute set rules for “vertical relationships” between the International Criminal Court and its States Parties, but it didn’t say anything about whether or not countries had to pass their own laws on these crimes or work together.The current work would make “horizontal relationships” between States and set rules for how they work together. This would make it easier for the international community to stop these crimes.