The ICJ and Contributions to Peaceful Settlements

International Court of Justice to peaceful settlement of disputes and suggest any reforms you would like to see to its jurisdictions and powers.

Introduction

The primary aim of this coursework is to identify and critically evaluate how far the International Court of Justice (ICJ) had contributed towards the peaceful settlement of various disputes and this mainly includes international disputes along with the amendments that has been made and any further suggestions on jurisdictions and powers that would contribute more in case of settlement of disputes than at present structure. The coursework follows the structure as mentioned below by identifying and evaluating each and every point in detail.

A gist about International law, International Court of Justice, Elements of Jurisdiction and analysing the ways that are currently available towards peaceful settlement of disputes in international law.

Critical analysis on present Judicial powers, laws of ICJ.

The last part of this coursework would be about discussing the amendments (reforms) that are made in ICJ and some suggested points that would further help the situation in peaceful settlement of disputes together with the toughness level in deploying those set of new rules.

Disputes and International Law

According to Tzimitras, 1997, the term dispute in this context is defined by ICJ as “disagreement on a point of law or fact, a conflict of legal view or interest between two parties”. To explain in brief related to subject, disputes between two party normally happen when set of points raised by one party seems unacceptable for the other party and deny to show their consent. This is very critical like a dead lock situation because, one party sticks with what they want and the other party deny. In the later part of the coursework, ways are identified and discussed to resolve this dead lock situation. The international law in general deals with these kind of problems through ICJ. On top of everything, each and every issue has got to be handled smoothly in a more efficient manner as it involves most prestigious attribute “relationship”. It would be a very great and challenging task to handle each and every case without causing damage to relationships. Author Hueck says that the international law has been considered in the past and even at present as a tool to create and maintain smooth relationship between states and achieve overall peace without causing damage to the justice and law.

Elements of Dispute Settlement

The International law in the process of dispute settlement has got two means by which the cases are handled. From the word “Diplomatic” it is understood that the case will be mutually dealt between the parties involved or seek help from third party for view, and opinion. The second option is “Adjudication” where the issue is dealt by disinterested party. This way of dealing things with would result in a quick and effective solution for the problem which is mentored by United Nation Charter rather subject to under law and other legal terms. The professional bodies who deal with these kind of cases based on international law are called as Judicial Bodies and the most common and important body that we are going to discuss next is the International Court of Justice.

International Court of Justice (ICJ)

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 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. (reference number). According to Keith, 2004, the International Court of Justice ICJ a well known Judicial Body plays a vital role in identifying and solving international disputes thereby maintaining peace and good relationship between states.

Elements of Jurisdiction

According to Sims, 2000, the term Jurisdiction is defined as “The geographical area over which a court or government body has the power and right to exercise authority”. On top, Shaw(2008) says that Jurisdiction concerns the power of the state under International law to regulate or otherwise impact upon people, property and circumstances and reflect the basic principles of state sovereignty, equality of states and non-interference in domestic affairs. Jurisdiction of ICJ is divided into two categories, namely the Contentious Jurisdiction and Advisory Jurisdiction. [1] In the exercise of its jurisdiction in contentious cases, the International Court of Justice has to decide, in accordance with international law, disputes of a legal nature that are submitted to it by States. An international legal dispute can be defined as a disagreement on a question of law or fact, a conflict, a clash of legal views or of interests.

Only States may apply to and appear before the International Court of Justice. International organizations, other collectivities and private persons are not entitled to institute proceedings before the Court.

Article 35 of the Statute defines the conditions of access for States to the Court. While paragraph 1 of that Article opens it to the State parties to the Statute, paragraph 2 is intended to regulate access to the Court by States which are not parties to the Statute1. The conditions of access of such States are, subject to the special provisions contained in treaties in force at the date of the entry into force of the Statute, to be determined by the Security Council, with the proviso that in no case shall such conditions place the parties in a position of inequality before the Court.

The Court can only deal with a dispute when the States concerned have recognized its jurisdiction. No State can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto.

The term Advisory Jurisdiction is defined as Power of a court to give advisory opinion on specific issues of law. Since States alone have capacity to appear before the Court, public (governmental) international organizations cannot as such be parties to any case before it. A special procedure, the advisory procedure, is, however, available to such organizations and to them alone.

Though based on contentious proceedings, the procedure in advisory proceedings has distinctive features resulting from the special nature and purpose of the advisory function.  the advisory opinions of the Court nevertheless carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between States.

View, Opinion and Acceptance of jurisdiction

The settlement of disputes between two parties can be processed if and only if both the parties share their views, opinions and their acceptance in front of ICJ but before that it should be with the jurisdiction of the court. Only after this consent, the parties can appear in front of ICJ.

Consent of states is an important element of jurisdiction of ICJ. Settlement of disputes by ICJ is subjected to the recognition of the courts jurisdiction by the state party to the dispute. In other words to become a party before ICJ, the states concerned should have given its consent for the jurisdiction of the court. According to watts, 2002, the consent of either party is a basic fundamental procedure of ICJ and it is mandatory that both the parties (states) should express their consent and if not then they cannot appear in front of ICJ. Set of basic fundamental criteria should always be satisfied in order to proceed with the next level of argumentation like negotiation, compensation, etc. These fundamental criteria (i.e.) giving consent can be made in different forms like written agreement, compromisory clause, mutual agreement and many other ways described in ICJ. The Statute of ICJ has got articles that refer to almost all the cases the parties refer to. It has got present and historical data arranged in chronological order. Again talking about the methods through which the parties deliver consent, it is called as “Establishment of Jurisdiction by the way of Written Agreement” when the parties opt their consent method as “Written Agreement”. This term does change with respect to the method of delivering consent.

Statute of ICJ

The statute of ICJ says that the rules of the court are very restricted in such a way that only states in common terms parties can only present with cases in front of the court. According to Lauterpacht, 2002, no person as an individual or international organization can appear for cases in front of ICJ.

Court and its Judicial Powers

In here we are now going to discuss the powers of court and how far it will be useful under normal and emergency cases. The court in general formed by judges should be given high powers so as to handle all types of situations, cases when necessary. This by default includes International Court of Justice ICJ. There are lots of disputes surrounding ICJ which can be well resolved with correct powers, legal rights to pass immediate sentence for cases. The subordinates who does falls under ICJ, measures are taken to maintain proper legal system especially during the process of litigation (Author, Year).

It is essential that a court to be vested with sufficient power in order to perform its role as an adjudicator. In regard to this there is no exception for the ICJ. This paper will here onward will discuss the powers of the ICJ. So obviously, these actions shouldn’t be escalated at ICJ level as it involves more serious problems than what subordinates handle. To be very clear, ICJ deals with relationship between two states, countries, etc which completely reflect in the peaceful settlement of disputes.

There are many examples where the ICJ has successfully made use of its power in settling disputes between nations. For example in the Frontier Dispute Case [2] to prevent the judgment of the court being prejudiced the court ordered for a ceasefire for which the both parties agreed. In this case interim measures were more effective because both parties recognized the value of judicial settlement. On the contrary, in situation where both parties and at least one party reject the whole idea of judicial settlement, interim measures are less useful. The problem arises is, in such a situation what action can the ICJ take? As Jerome B. Elkind has pointed out the ICJ can not execute its orders or judgments; nor does it has the power to compel the attendance or punish the non attendance of states that do not choose to submit to its authority. It cannot order the arrest of non appearing states nor can it enforce fines against them, attach their property or out law defaulting states. Its jurisdiction is based on the consent of states. [3] Thus, even if the ICJ makes an order for which a respondent state does not comply with, ICJ can not take any action against such state. Based on the aforesaid weakness one can argue that as a court, ICJ does not posses sufficient power or jurisdiction to settle international disputes.

The role of ICJ

Since the establishment of the ICJ many views and criticisms have come up based on the relationship between the ICJ and the Security Council which is a political organ of the UN. The question of ICJ review of Security Council decisions can be broken down into several issues. The first is whether the ICJ has any right of review over the actions of the Security Council at all. If it does have such a general right, then the second issue is whether the ICJ may review the decisions made by the Security Council under Chapter VII for the maintenance of peace and security. If such a right exists, then the final issue is what the standard for review would be for such decisions.

In any case before the ICJ in which there is an allegation by one side that an act of the Security Council has some legal effect on the outcome, you would expect that the ICJ may well have to render a decision upon the interpretation or the application of such a decision, even if it does not attempt to review the validity of the decision itself. For example, in the Lockerbie case, if the ICJ had eventually decided the case on the merits, it might have had to decide whether the Security Council decisions did in fact require Libya to surrender the accused individuals and whether those decisions were in fact inconsistent with the alleged obligation under the Montreal Convention to provide information about the case to Libya. But these decisions would not involve passing on the validity of the Security Council’s actions (Matheson, 2004).

If the ICJ had a general right to review Council decisions, that right of review encompasses the decisions made by the Council under Chapter VII of the Charter. In particular, the Security Council must decide under Chapter VII whether a situation constitutes a threat or breach of the peace or act of aggression, and if so, what measures are to be taken to resolve such a situation. In the Lockerbie case, Libya did challenge the legality of the Security Council’s decisions on these points with respect to the bombing of Pan Am 103. Here it seems that the Charter clearly gives authority only to the Security Council to make such decisions. These are decisions that are essentially political, factual, and discretionary in character, and not easily subject to judicial standards. In the U.S. judicial system, such decisions would typically be regarded as non-justiciable. In the exercise of Chapter VII functions by the Council in crisis situations, there is a definite need for rapid decisions that are authoritative, that will be taken by all parties as being final and binding, and that they cannot hope to reverse through some other process. Otherwise, the effectiveness of the Council in such crisis situations would be seriously compromised. This leads to the conclusion that, even if there were a general right of judicial review over Council decisions, it is unlikely that the Charter really contemplated that there would be judicial review of decisions by the Council under Chapter VII.

In conclusion, had the Lockerbie case continued on to a final decision on the merits, it would likely have confronted for the international system some of the issues that were dealt with in Marbury v. Madison for the U.S. constitutional system. In my view, however, a decision by the ICJ along the lines of Marbury-asserting a right of ICJ review over decisions of the Security Council-would have been a real mistake with potentially far-reaching consequences. The exercise of such a right of review could seriously undercut the effectiveness of the Security Council’s exercise of its Chapter VII powers, and it is doubtful that the ICJ could find meaningful judicial standards by which to review the Security Council’s actions in such situations. I would hope that if a similar case should arise in the future, the ICJ will exercise restraint and not assert a right of review that might interfere with the Security Council’s ability to deal with issues of war and peace.

Amendments to Statute of ICJ

There had been many amendments made to Statute of ICJ for the betterment of Jurisdiction and towards peaceful settlement of disputes surrounding International Law. In the year 1959, the Institure de Droit International raised and started practicing a solution in the intention of motivating the states to make most use of compulsory Jurisdiction. The said resolution has recognized that lack of compulsory jurisdiction has adversely affected the unsatisfactory level of international justice and it has recommended the acceptance of the compulsory jurisdiction of ICJ. I am also of the view that ICJ should be given compulsory jurisdiction, at least over the members of the UN, irrespective of the consent of the parties. However the practical difficulties in implementing the said proposal could not be neglected. Compulsory jurisdiction is not a new phenomenon. This was in-existent, even before the Permanent Court of International justice was established. Dr. B.C.J. Loder of Netherlands first proposed the principle of compulsory jurisdiction to the PCIJ. [4] However due to some reasons PCIJ was not granted compulsory jurisdiction. Another attempt which was made to institute compulsory jurisdiction for ICJ in 1945 was not successful due to the objections and threats of U.S and U.S.S.R. In this occasion a great majority of States were in favour of compulsory jurisdiction. [5] Even after this attempt compulsory jurisdiction has been discussed at various forums. At the United Nations Special Committee on Friendly Relations in 1966, it was argued that since the court was the principal judicial organ of the United Nations and that since each member was ipso facto a party to the Statute of the Court, ICJ should be given compulsory jurisdiction over matters. [6] However none of the attempt has been successful yet. In view of the above it is understood that the main barrier for the establishment of compulsory jurisdiction is the unwillingness of the powerful nations.

It has also been suggested that ICJ should be given the power to view the resolution of the Security Council. Bernd Martenczuk points out that there is no provision in the UN Charter or in the jurisprudence of the court that restricts or prevents the ICJ from reviewing or examining the decision of the resolution of the Security Council. [7] Therefore he argues that that the court can review the decision of Security Council. Maintenance of international peace and security is a primary responsibility of the United Nations as a whole. ICJ as the main judicial organ of the UN it has a greater responsibility to take steps to maintain peace and security. Security Council is a political organ and there may be instances where the Security Council acts in violation of principles of International Law. In such occasions there should be a body to review its decisions. In my view ICJ is the most suitable authority for that and therefore I suggest that ICJ should be given power even to review the resolution of the Security Council.

Further it has also been proposed that the individuals be given the right to be a party before the ICJ, thereby giving them the opportunity to complaint to the ICJ about alleged violations of international law by states or by international organizations. While this could be a possible proposal for the expansion of jurisdiction of ICJ, it will also create many practical and legal difficulties such as expansion of an unbearable case load , difficulties of enforcement of judgments etc.

Conclusion

Through out this essay an attempt was made to asses the contribution of the ICJ to peaceful settlement of disputes and to suggest possible reforms for its jurisdiction and power. As it has discussed ICJ is the one of the best judicial bodies for the settlement of international disputes provided that it is given the jurisdiction and power. Jurisdiction and power mentioned in its statute have been subjected to many criticisms. The main feature of the jurisdiction- the consent of the states- creates numerous jurisdictional problems.

The peaceful settlement of disputes by the International Court of Justice using its most valuable methods were identified and critically analysed in this paper with supporting journal references. The United Nation’s and International Court of Justice’s primary aim is to overcome National and International disputes between parties in a very professional manner using the available methods These methods are more or less tend to follow similar rules and the end result is towards solving disputes. Further ICJ lacks certain powers which are essential for a world court. It is powerless before the Security Council resolution. The fact that the ICJ’s decisions are not effectively enforceable is a huge barrier for its contribution for the settlement of disputes. Finally I have suggested, in order that the purpose of a world court to be fulfilled the ICJ should be given the compulsory jurisdiction, power to review the resolution of the Security Council, international organizations to be give the legal personality before ICJ. It should be noted that implementation of these suggestions depend on the willingness of the international community.