International Court of Justice and its Jurisdiction

By: Arshia Jain

Published On: February 13, 2022 at 21:03

Introduction

The International Court of Justice is a global court that hears cases from all around the world. The Court’s jurisdiction is twofold: it decides legal disputes submitted to it by States by international law, and it gives advisory opinions on legal questions at the request of United Nations organs, specialized agencies, or one related organization authorized to make such a request.

Basis of the Court’s Jurisdiction

The Court’s jurisdiction in contentious cases is based on the consent of the countries to which it is open. How this permission is stated impacts how a matter may be presented before the Court.

A unique agreement: The Court’s jurisdiction includes all cases referred to it by the parties, according to Article 36, paragraph 1 of the Statute. Such matters are usually brought before the Court by the parties notifying the Registry of a special agreement, they have reached specifically for this purpose. The matter of the disagreement, as well as the people involved, must be stated.

•  Issues covered by Treaties and Conventions: The Court’s jurisdiction also includes all topics specifically provided for in treaties and conventions in effect, according to Article 36, paragraph 1 of the Statute. Normally, such matters are brought before the Court through a written application instituting proceedings; this is a unilateral document that must specify the subject of the dispute and the parties as well as, to the extent possible, the provision on which the applicant bases the Court’s jurisdiction.

The ‘Treaties’ section contains a collection of treaties and agreements that regulate the International Court of Justice’s jurisdiction in disputed matters.

Other treaties and conventions concluded in advance and conferring jurisdiction on the Permanent Court of International Justice should be added to those instruments, because Article 37 of the International Court of Justice’s Statute states that whenever a treaty or conference under duress offers for the referral of a claim to a tribunal to be established through the League of Nations, or to the Permanent Court of International Justice, the problem shall be referred to the Permanent Court of International Justice.

The Permanent Court replicated the essential provisions of the documents controlling its jurisdiction in 1932 in its Collection of Texts Governing the Court’s Jurisdiction and later in Chapter X of its Annual Reports. Some of these clauses now regulate the International Court of Justice’s jurisdiction as a result of the above-mentioned article.

• In legal conflicts, mandatory Jurisdiction: The Statute states that a State may acknowledge the Court’s jurisdiction in legal disputes as obligatory about any other State that accepts the same duty. Written applications are used to bring such situations before the Court. The kind of legal problems for which such obligatory jurisdiction may be recognized is stated in Article 36, paragraphs 2-5 of the Statute:

The States party to the present Statute may declare at any moment that, about any other State adopting the same responsibility, they acknowledge the Court’s jurisdiction as mandatory ipso facto and without a particular agreement in any legal matters concerning:

1. a treaty’s interpretation;
2. any international legal issue;
3. the existence of any truth that, if proven, would result in a violation of an international agreement;
4. the type and scope of the redress to be paid in the event of a breach of an international commitment.

•  The above-mentioned statements may be made unconditionally or based on reciprocity on the part of numerous or specific States, or for a specific period.
•  Such statements shall be submitted with the United Nations Secretary-General, who shall deliver copies to the Statute’s parties and the Court’s Registrar.
•  Declarations made under Article 36 of the Statute of the Permanent Court of International Justice that are still in force are deemed to be acceptance of the International Court of Justice’s compulsory jurisdiction for the period that they still have to run and by their terms, as between the parties to the present Statute. These declarations’ texts may be found under the category ‘Declarations Recognizing the Court’s Jurisdiction as Compulsory.’
•  Prorogation of the Forum: If a State does not recognize the Court’s jurisdiction at the time an application for instituting proceedings is filed against it, it has the option of later accepting it for the Court to hear the case: the Court thus has jurisdiction as of the date of acceptance under the forum prorogatum rule.
• Any concerns about the Court’s jurisdiction are decided by the Court itself: In the case of a dispute over whether the Court has jurisdiction, the subject should be determined by the Court’s decision, according to Article 36, paragraph 6 of the Statute. The procedures for filing preliminary objections are outlined in Article 79 of the Rule 4.
• A judgment’s interpretation: According to Article 60 of the Statute, if there is a disagreement over the interpretation or scope of a ruling, the Court will construe it at the request of any party. A particular agreement between the parties or an application by one or more of the parties can be used to obtain an interpretation.
• Revision of a decision: Only when the discovery of some fact of such a nature as to be a decisive factor, which fact was unknown to the Court and also to the party claiming revision when the judgment was given, may an application for revision of a judgment be made, provided that such party’s ignorance was not due to negligence. An application is used to request a revision

The ICJ and the UN Security Council

The Court reviewed the connection between the ICJ and the Security Council, as well as the division of their powers, in the Pan Am case in 1992. Libya had asked the Court to take interim measures to preserve its rights, which it claimed were being violated by the prospect of economic penalties from the United Kingdom and the United States.

The issue was that these penalties had been authorized by the Security Council, resulting in a possible contradiction between the Security Council’s Chapter VII responsibilities and the Court’s judicial duty.

By a decision of 11 to 5, the Court determined that it could not provide the proposed temporary measures since Libya’s rights, even if lawful under the Montreal Convention, could no longer be respected because the action was approved by the Security Council. The UN Charter’s responsibilities take precedence over other treaty commitments, according to Article 103 of the UN Charter.

A majority of the Court expressed a strong aversion to becoming engaged in a disagreement that would place it in confrontation with the Council. In the Nicaragua case, the Court ruled that there is no inevitable conflict between Security Council action and ICJ judgment.

Where there is an opportunity for confrontation, however, the Security Council looks to have the upper hand.

If any party fails to ‘Discharge the responsibilities incumbent upon it under a decision delivered by the Court,’ the Security Council may be summoned to’make suggestions or decide upon measures’ if it deems them appropriate. The Court’s powers have been restricted in practice due to the losing party’s refusal to follow the Court’s judgment and the Security Council’s inability to impose penalties.

In concept, however, ‘A court decision is valid and enforceable, penultimate, and without incantation as far as the incidents of the case are associated,’ and ‘By signing the Charter, a State Member of the United Nations undertakes to abide by any judgment of the World Court in a situation to which it is a group.’

In Nicaragua Vs the United States^[1], for example, the US had chosen to accept the Court’s binding effect upon its formation in 1946 but had disengaged its acquiescence following the Court’s decision in 1984, which purchased the US to “halt and abstain” from using “unreasonable force” against the Nicaraguan authorities.

The majority of the Court decided in a divided ruling that the US was ‘in breach of its commitment under customary international law not to employ force against another state’ and ordered the US to pay reparations, which it never did.

Here are a few examples:

• In 1980, the US filed a complaint alleging that Iran was imprisoning American diplomats in Tehran in violation of international law.
• A disagreement between Tunisia and Libya about the delimitation of their shared continental shelf.
• A disagreement about the route of the maritime boundary that separates the United States and Canada in the Gulf of Maine.
• A complaint filed by the Federal Republic of Yugoslavia against the North Atlantic Treaty.

Organization’s member nations for their activities during the Kosovo War. Because the FRY was not a party to the ICJ statute at the time it applied, it was refused on the 15th of December 2004 owing to a lack of jurisdiction.

The final example demonstrates the Court’s unwillingness to take on politically contentious matters; the Court’s existence is predicated on its political legitimacy, as it has no means of enforcing its decisions. That would be jeopardized if it was frequently accompanied by judgments that nations had no desire to examine. One of the Court’s primary flaws is that its decisions must be seen from a political perspective.

Conclusion

The World Court has made significant progress in encouraging judicial resolution of international issues. The first World Court’s involvement in resolving the major political concerns of the day was dismissed as a ‘Footnote.’

The ICJ’s 70 years of judicial activity have witnessed a dramatic shift in international relations. The International Court of Justice has contributed significantly to the peaceful resolution of international disputes and the advancement of international law.

Other international courts and tribunals are guided by its well-established doctrine and legal practice. Jurisdiction is fundamentally a substantive issue; it affects a State’s sovereign decision about the mode of settlement it believes appropriate for resolving an international dispute with another State.

There are various methods in which a State might accede to the Court’s jurisdiction. The unique conditions of each instrument define the degree to which permission is granted. Even though a State accepts obligatory jurisdiction, it can nevertheless add reservations, exclusions, and conditions to its declaration, specifying the scope of its agreement.

This allows states a lot of leeway in deciding whether or not to offer such admissions. It is the Court’s responsibility to analyse the applicable legal instruments and determine whether a matter is within its jurisdiction and admissible.

Mutuality and reciprocity underpin the Court’s jurisdiction in contested issues. Even though the subject matter of the dispute contains several applications or respondents, the Court can only hear cases when there is a disagreement between two states. In each situation, the question of jurisdiction must be studied and resolved in the context of the two parties’ mutual relationship.

Edited by: Ankita Singh, Associate Editor, Law Insider

References

• Handbook on accepting the jurisdiction of the ICJ
• STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
• International Court of Justice (ICJ)
• The Jurisdiction of the International Court of Justice
• The International Court of Justice (ICJ)

1. Nicaragua Vs the United States 1986 I.C.J. 14 ↑