International Court of Justice Zil Shah from CWC Law College, Mumbai
The International Court of Justice is the highest court of law in the world and the principal judicial organ of the United Nations (UN.) Also known as the world court, it is the only court which has both general as well as universal jurisdiction. All cases which the member States refer to it, along with all matters that are specifically mentioned in the Charter of the United Nations or in treaties and conventions in force, fall under the purview of this court. The seat of the court is at The Peace Palace in The Hague (Netherlands). Among other interesting facts, the court is also the only principal organ (out of six), of the United Nations to be located outside of New York (United States of America).
The Permanent Court of International Justice (hereinafter PCIJ) was the predecessor of the International Court of Justice (hereinafter ICJ), having been established by the League Council under Article 14 of the League of Nations in the early 1920s. Under the leadership of a renowned statesman and scholar, Mr. Baron Descamps of Belgium, the advisory committee submitted to the League Council, its report containing a preliminary draft statute. The League Council, after making certain amendments, handed over this statute, to the First Assembly of the League of Nations which opened at Geneva in November, 1920. After the circulation of the second and third draft and the subsequent ratification of the statute by a majority of the member States, the statute finally came into force, after a single revision, in 1936.
There was a desperate need of a new and renewed legal order, especially after the disruption caused by the war. In 1942, the United States Secretary of State and the Foreign Secretary of the United Kingdom assented the establishment or re-establishment of an international court after the war, and the Inter-American Juridical Committee recommended the extension of the PCIJ’s jurisdiction. Following that, the United Kingdom government, in 1943, took the initiative of constituting an Inter-Allied Committee to deal with the matter of examination of all the issues that were brought forward regarding the need of a new judicial organ. In its report, which was published on 10 February, 1944 recommended:
- that the Statute of any new international court created should be based on that of the PCIJ ;
- that advisory jurisdiction should be retained in the case of the new Court ;
- that acceptance of the jurisdiction of the new Court should not be compulsory ;
- that the Court should have no jurisdiction to deal with essentially political matters.
Following the circulation of various drafts at meetings held at various venues including Washington and the submission of the first draft at the San Francisco Conference, it was clear and definite that the establishment of a new court for international disputes was in the making. This court though following a similar route for establishment, much like its predecessor, would be nothing like it. The PCIJ adopted principles of political and legal affairs that were more favourable to European nations. The formation of the ICJ on the other hand, ensured that judicial settlement was more accessible to Non-European countries as well. In April 1946, the PCIJ was formally dissolved, and the ICJ, meeting for the first time, elected as its President Judge Guerrero, the last President of the PCIJ, and appointed the members of its Registry. On 18 April 1946, the new Court held its inaugural public sitting.
The procedure consists of two parts, one being written while the other being oral. The written procedure consists of communications to the Court and to the other parties of memorials, counter-memorials, replies and any other documents in support thereof. The oral procedure on the other hand, consists of hearing of the Court of witnesses, agents, counsel and advocates.
The hearing of the Court is conducted under the control of the President, in his absence, the Vice-President and in his absence, the senior judge of the Court. Minutes of the hearing are prepared at the end of each hearing. These are signed by the Registrar and the President.
The Court also lays down Rules of Procedure and during the hearing, all the questions directed to the witnesses and the other party, shall be in accordance with such rules.
The judgment of the Court is based on a majority of votes. In the case of equal votes, the President or the judge acting on his behalf has the final say. Any judge may also give his separate opinion when a unanimous judgment cannot be arrived into. The judgment of the court is also deemed to be final and cannot be appealed. However, if there has been a change of a fact or circumstance that is considered to be deciding factor of the judgment, the parties may upon requisition, avail revision of the judgment. For this to happen however, the Judge must be convinced that the subsequent discovery of such fact is not due to negligence. The cost of the proceedings is borne by each party by themselves.
USA v. Nicaragua, June 1986
This is one the most famous rulings of the ICJ. The case concerned the US support for Anti-Sandinista "contras" in Nicaragua. Ruling in favour of Nicaragua, the Court proclaimed that the American intervention was unjustified and nothing would explain the actions of the nation that aimed at violating the sovereignty of another nation.
Further, the judgment also highlighted the violation of human rights and supported the right of self-defence of Nicaragua.
"In any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence."
Corfu Channel Case, 1949
This case revolved around the various incidents that took place in the Corfu channel between Albania and Corfu. Briefly stating the case, Royal Navy ships were attacked and various mines laid by Albania were also struck in the process. Further, these mines were seized in order to prove that they were in fact laid by Albania. The United Kingdom claimed that they were to be used as evidence in the International Court of Justice and in this way, stated its defense. This contention was rejected by the Court when it stated,
"The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less inadmissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself."
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