Ever since Kulbhushan Yadav’s conviction by a Pakistan
Military Court, the Hague based International Court of Justice has been hitting
media headlines in the Subcontinent. Now that the Pakistan National Assembly
has adopted a Bill to give Jadhav the right to appeal, as directed by the ICJ, the
interest has intensified.
What is this International Court of Justice? What
powers does it wield and why must its rulings be complied with? Well, the Court
has a long and interesting history. Let me outline it here in brief.
·
In the years preceding
the First World War, attempts were made to set up a permanent institution that
would facilitate the settlement of disputes between nations. This process
gained strength when the League of Nations was formed after the War on 10
January 1920. And, the Permanent Court of International Justice, PCIJ in short,
was established.
·
Although there was a close association
between the League of Nations and the PCIJ, the Court was not a part of the
League. Yet, the League Council and Assembly periodically elected the Members
of the Court. Both the Council and the Assembly were entitled to seek advisory
opinions from the PCIJ.
·
Between 1922 and 1940 the PCIJ dealt with
29 contentious cases between States and issued 27 advisory opinions. This
became possible because several hundred treaties, conventions and declarations
conferred jurisdiction upon it over specified categories of disputes.
The PCIJ’s
Contribution to Internal Law
·
The Court developed a proper judicial
process. The Rules of Court, drawn up in 1922 and subsequently revised in 1926,
1931 and 1936, have been important milestones in the progress of International
Law.
·
The PCIJ’s Resolution concerning the
Judicial Practice of the Court, adopted in 1931 and revised in 1936, laid down
the internal procedure to be followed during the Court’s deliberations on each
case.
·
While helping to resolve some serious
international disputes, many of them being consequences of the First World War,
the decisions of the PCIJ often clarified previously unclear areas of
international law or contributed to their development.
Formation of the International Court of Justice, its composition and
role
After the Second World War, when the United Nations was founded, the
International Court of Justice was established as its principal judicial organ in
June 1945 by the Charter of the United Nations. So, the ICJ is a reincarnation
of the PCIJ.
The ICJ is composed of 15 judges who are elected for terms of office of
9 years by the United Nations General Assembly and the Security Council. The
five permanent members of the Security Council (France, Russia, China, the
United Kingdom, and the United States) always have a judge on the Court.
The ICJ’s role can be described as two-fold. At one level, it is
advisory and at another, it is judicial.
Its advisory function is open only to specified United Nations bodies
and agencies. The Court’s opinions are consultative and do not generally result
in judgments for the resolution of specific disputes.
The other role is to settle the legal disputes submitted to it by states.
In this respect, the Corfu Channel Case is of immense importance.
The Corfu Channel Case
The Corfu Channel case was a public international law case heard before
the ICJ between 1947 and 1949, concerning state responsibility for damages at
sea as well as the doctrine of innocent passage. Here is a brief account of
this case.
·
A series of encounter
from May to November 1946 in the Corfu Channel between the United Kingdom and
the People’s Republic of Albania – one of which resulted in damage to two Royal
Navy ships and significant loss of life – the United Kingdom brought suit in
the ICJ seeking reparations.
·
After an initial ruling
on the jurisdiction in 1948, the ICJ issued separate merits and compensation
judgments in 1949. The Court awarded the United Kingdom 843,947 Pounds
Sterling. This amount remained unpaid for decades, and British efforts to see
it paid led to another ICJ case to resolve competing Italian and Albanian
claims to more than two tons of Nazi gold. In 1996, Albania and the United
Kingdom settled the judgment along with Albania’s outstanding claim to the
gold.
·
The Corfu Channel Case
has had a lasting influence on the practice of international law, especially
the law of the sea. The concept of innocent passage used by the Court was
ultimately adopted in several important ‘law of the sea’ conventions. The
stance taken by the court on the use of force has been of importance in
subsequent decisions, such as Nicaragua Vs. The United States, which I shall explain
in a moment. No doubt, the case served to set many procedural trends followed
in subsequent ICJ proceedings.
Cases before the ICJ are resolved in one of the three ways (1) they can
be settled by the parties at any time during the proceedings; (2) a state can
discontinue the proceedings and withdraw at any point; or (3) the Court can
deliver a verdict.
Jurisdiction
Let us be very clear. The International Court of Justice does not enjoy
complete and unchallengeable jurisdiction in any matter. Keeping this in mind,
one can say that it has jurisdiction in two types of cases: 1. Contentious
issues between states in which the court produces binding rulings between
states that agree, or have previously agreed to submit to the ruling of the
Court; and 2. Advisory opinions, which provide reasoned but non-binding rulings
on properly submitted questions of international law, usually at the request of
the United Nations General Assembly.
The Court has jurisdiction based on consent. This has been clearly
defined by the Charter of United Nations.
·
Article 36(1) provides
that parties may refer cases to the Court (jurisdiction founded on ‘special
agreement’ or compromise). This method is based on explicit consent and is,
perhaps, the most effective basis for the Court’s jurisdiction. This voluntary
clause paves the way for parties to not participate in proceedings and refuse
to abide by the decision of the court in a particular matter. For example, Iran
refused to participate in the case of the Iran hostage crisis brought by the
USA, which was based on the voluntary clause of the Vienna Convention on
Diplomatic Relations and not complied with the order of the court. (The Iran
Hostage Crisis was a diplomatic standoff between Iran and the United States. 52
American diplomats and citizens were held hostage for 444 days from November
04, 1979, to January 20, 1981, after a group of Iranian students belonging to
the Muslim Student Followers of the Imam’s Line who supported the Iranian
Revolution took over the US embassy in Tehran. It stands as the longest hostage
crisis in recorded history.)
·
Article 36(2) allows
states to make declarations accepting the Court’s jurisdiction as compulsory
(“optional clause declarations”). A state party can declare any time to accept the
compulsory jurisdiction of the International Court of Justice in a matter
related to conventions or international law.
·
Article 36(5) provides
for jurisdiction based on declarations made under the Permanent Court of
International Justice’s statute.
·
Article 37 of the ICJ’s
statute similarly transfers jurisdiction under any compromissory clause in a
treaty that gave jurisdiction to the PCIJ. A compromissory clause is a clause in a treaty providing for the submission of a matter or matters
to arbitration.
The Nicaragua Case
The term ‘compulsory jurisdiction’ is misleading since declarations by
the states are voluntary and can be withdrawn at any time. This was amply
proved in the Nicaragua Case.
According
to the Washington Post report dated April 07, 1984, “The CIA
has played a direct role in the laying of underwater mines in Nicaraguan ports
that have damaged at least eight ships from various nations during the past two
months, according to congressional and administration sources.
A combination of
U.S.-financed guerrillas fighting the leftist Sandinista government of
Nicaragua and more highly trained Latin American employees of the CIA operating
from CIA-owned speedboats have laid the crude bottom-lying mines in Corinto and
other ports, according to the sources.”
So, Nicaragua lodged a complaint in the ICJ against the USA for
violating various treaties and general principles of international law. The USA
argued that a) ICJ doesn’t have any jurisdiction on treaties and b) compulsory
jurisdiction did not apply. So, when ICJ issued a verdict against the USA in
1984, the country simply refused to comply and withdrew its acceptance from
compulsory jurisdiction. When this case was brought before the Security
Council, the USA vetoed the decision of the council. The USA – or any of the
other four permanent members – seems to be above international law as enforced
by ICJ.
Should the ICJ have more powers and compulsory jurisdiction?
It is not easy to answer this question. We do not know how things will
play out if the ICJ is so empowered. But, given how the Security Council
functions and Great Powers like the United States and others have been having
their way with ICJ and Security Council, it is just as well that the ICJ does
not have absolute jurisdiction.
The Big Five call the shots in the Security Council. They can defy the
ICJ at will. So, whether it is China laying claims to sovereignty over
territories of smaller Southeast Asian countries, Japan and Taiwan, or Russia
bullying Ukraine, or various disputes in West Asia, Central Asia and elsewhere,
the UNO and ICJ are, at best, helpless bystanders. Unless the UNO and its various organs are
genuinely democratised, it is difficult to imagine a credible and empowered
International Court of Justice becoming a reality.
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