In Depth - International Court of Justice

• 26 Feb 2019

ICJ recently concluded the four-day public hearing on Kulbhushan Jadhav case. India has urged the ICJ to annul Jadhav’s death sentence given by a Pakistan military court. On the other hand, Pakistan continued to claim that Jadhav is an instrument of India’s official policy of Terror.

ICJ

• ICJ is a principal judicial organization of United Nations(UN).
• It settles legal disputes between member countries and gives advisory opinions to authorized UN Organs and Specialized Agencies.
• It is seated in the Peace Palace of Hague, Netherlands.

Establishment

• It was established in 1945 by a UN Charter and began working in 1946 as the successor to the Permanent Court of International Justice.
• The Statute of the International Court of Justice is the main constitutional document constituting and regulating the conduct of the court.
• Chapter XIV of the United Nations Charter authorizes the UN Security Council to enforce Court rulings. However, such enforcement is subject to the veto power of the five permanent members(France, U.K, China, U.S, Russia) of the Council.
• Every country which is/becomes a member of the UN also is/becomes a member of ICJ i.e. comes within its jurisdiction.

Election Process

• The election process for the judges is set out in Articles 4–19 of the ICJ statute.
• It is composed of 15 judges who are elected for the term of nine years, by the UN General Assembly and the UN Security Council. The elected judges form part of the list of people nominated by the national groups in the Permanent Court of Arbitration.
• Elections are staggered, with five judges elected every three years to ensure continuity within the court. If a judge dies in office, the practice has generally been to elect a judge in a special election to complete the term.
• A judge can be dismissed only by a unanimous vote of the other members of the court.
• No two judges can be nationals of the same country. The judges in ICJ are chosen to represent all geographic regions of the world- an informal understanding between the nations.
• There are five seats for Western Countries, three seats for the African States, two for the Eastern Europe States, three for the Asian States and two for Latin American and Caribbean States.
• Article 6 of the Statute provides that all judges should be elected regardless of their nationality. Judges should be of high moral character either qualified for the highest judicial office in their home states or known as lawyers with sufficient competence in international law.
• Judges of ICJ cannot hold any other post or act as counsel.
• Article 31 of the statute sets out a procedure whereby Ad Hoc judges sit on contentious cases before the court. The system allows any party to a contentious case to select one additional person to sit as a judge on that case only. It is thus possible that as many as seventeen judges may sit on one case. Ad Hoc judges usually vote in favour of the state that appointed them and thus cancels each other out.
• Judges may deliver joint judgments or give their own separate opinions. Decisions and advisory opinions are by majority, and, in the event of an equal division, the President's vote becomes decisive.

Jurisdiction

ICJ acts as a World Court and is the principal legal organ body of the UN. The court’s jurisdiction is two-fold:

Contentious Cases

• ICJ, in accordance with International Law, settles the disputes of legal nature that are submitted to it by states.
• Only states may apply to and appear before the ICJ. International Organizations, other authorities, and private individuals are not entitled to institute proceedings before the court.
• Article 35 defines the conditions under which States may access the Court. It states that court is open to the state parties to the Statute, and is intended to regulate access to the Court by the states which are not parties to the Statute.
• The Court can only deal with a dispute when the States concerned have recognized its jurisdiction.

Advisory Opinions

• Advisory Procedure is available to five UN Organs, fifteen Specialized Agencies, and one Related Organization.
• Advisory Proceedings begin with the filing of a written request for an advisory opinion addressed to the Registrar by the UN Secretary-General or the Director or Secretary General of the Entity requesting the opinion.
• In urgent cases, the Court may take all appropriate measures to speed up the proceedings. It is even empowered to hold written and oral proceedings.
• 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.

India at ICJ

India has remained involved in cases at ICJ on six occasions, including the present Jadhav case. Pakistan was the opposing party in the four out of six cases.

• In 1955, Portugal claimed the right of passage through the territory of India to ensure communications between its territory of Daman and its enclaved territories of Dadra and Nagar-Haveli.
• India contended that the events that took place in Dadra on 21st & 22nd July 1954 overthrew Portuguese authority in these enclaves creating tension in the surrounding Indian Territory.
  • Verdict: The ICJ did not find fault with India and ruled that India has not acted contrary to its obligations.
• In 1971, India said that the Council of the International Civil Aviation Organization (ICAO) had no jurisdiction on a complaint filed by Pakistan.
  • Verdict: ICJ held that ICAO is indeed competent to entertain the complaint made to it by Pakistan.
• In 1973, Pakistan sought proceedings against India on the charges of genocide against 195 Pakistani nationals, prisoners of war or civilian internees in the Indian custody.
• The case ended after both India and Pakistan governments held discussions and came to an agreement on the issue.
• In 1999, Pakistan entered into a dispute on the destruction of a Pakistani aircraft by India in 1999. Pakistan said that the ICJ had jurisdiction in this issue.
  • Verdict: ICJ concluded that it had no jurisdiction to entertain the application filed by Pakistan.
• In 2014, The Republic of the Marshall Islands instituted proceedings against all nuclear weapon states, including India, contending breach of customary law obligations on nuclear disarmament.
• India said that the ICJ had no jurisdiction in the case.
  • Verdict: ICJ accepted that it cannot proceed to the merits of the case because of lack of jurisdiction.
• In 2017, India filed a case on illegal detention of former Indian Navy Officer Kulbhushan Jadhav by Pakistan. The case is in progress at ICJ.