The International Court of Justice (ICJ), which is expected to decide on the Kulbhushan Jadhav case on Wednesday, is the principal judicial organ of the United Nations (UN). The ICJ was established in 1945 by the San Francisco Conference, which also created the UN. All members of the UN are parties to the statute of the ICJ, and non-members may also become parties. The court’s inaugural sitting was in 1946.
However, this was not the first effort at instituting a multilateral forum to settle international disputes between states. The ICJ’s precursor was the Permanent Court of International Justice, which fell into irrelevance owing to the inability to enforce its mandate, especially during the intervening war years.
Composition and seat of ICJ
The ICJ is a continuing and autonomous body that is permanently in session. It consists of 15 judges — no two of whom may be nationals of the same state — who are elected to nine-year terms by majority votes in the UN General Assembly and the Security Council. The judges, one-third of whom are elected every three years, are eligible for re-election. The judges elect their own president and vice-president, each of whom serves a three-year term, and can appoint administrative personnel as necessary.
The seat of the ICJ is at The Hague, Netherlands, but sessions may be held elsewhere when the court considers it desirable to do so. The official languages of the court are French and English.
Cases before the ICJ are resolved in three ways — parties can settle the dispute at any time during the proceedings, a state can discontinue the proceedings and withdraw at any point, or the court can give a verdict. The ICJ decides disputes in accordance with international law as reflected in international conventions, international custom, general principles of law recognised by civilised nations, judicial decisions, and writings of the most highly qualified experts on international law.
The conduct of a case before the ICJ begins with the initiation of a case, followed by the case’s representation before the Court by agents appointed by the parties The ICJ may then indicate interim measures for the protection of the rights of one of the parties, when necessary. This is followed by preliminary objections by both the parties, after which a third party having an interest of legal nature in the case may intervene.
The Court proceedings then begin in the form of written and oral proceedings. Once the Court declares the hearing closed, it deliberates on the matter in private and the proceedings of the Court are kept confidential. Once the Court forms a broad idea of the decision involved and the majority ascertained, a drafting committee of three members of the Court is constituted. The preliminary draft judgement is secret and is open to further discussions and suggestions.
The Court may give a declaratory judgement or judgement requiring performance. A declaratory judgement covers questions of jurisdiction, interpretation of international treaties concerning the existence or nonexistence of a legal principle or relationship, and questions of whether there has been an infringement of a right. The Court may also declare lack of jurisdiction, or it may decline to give a decision because the dispute has already been resolved as a result of the conduct of the defendant. A judgement once rendered, can be revised on application made by a party if some fact, of such a nature as to be a decisive factor, was, when the judgement was given, unknown to the Court and also to the party claiming revision.
The court’s primary function is to pass judgment upon disputes between sovereign states. Only states may be parties in cases before the court, and no state can be sued before the ICJ unless it consents to such an action.
Although the judges deliberate in secret, their verdicts are delivered in open court. The court’s judgment is final and without appeal.
The ICJ is also empowered to give advisory opinions on legal questions at the request of other organs of the UN and its specialised agencies when authorised to do so by the General Assembly. For example, the World Health Organization and the General Assembly requested advisory opinions on the legality of nuclear weapons under international law. The World Court held hearings, in which 45 nations testified. It issued an advisory opinion in July 1996, which held that it was illegal for a nation to threaten nuclear war.
The ICJ has also concerned with issues such as admission to the UN, the expenses of UN operations, and the territorial status of South West Africa (Namibia) and Western Sahara. The court may also be granted jurisdiction over certain cases by treaty or convention.
Enforcement of ICJ’s judgments
The court itself has no powers of enforcement. However, Article 94 of the Charter of the United Nations states that, “If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”
In some cases, state parties to a case before the ICJ (or the PCIJ) have failed to carry out the court’s decisions. Two examples are Albania, which failed to pay £843,947 in damages to the United Kingdom in the Corfu Channel case (1949), and the United States, which refused to pay reparations to the Sandinista government of Nicaragua (1986). The United States also withdrew its declaration of compulsory jurisdiction and blocked Nicaragua’s appeal to the UN Security Council.
Notable cases before the ICJ
Some of the contentious cases before the ICJ included a property dispute between Liechtenstein and Germany, a territorial and maritime dispute between Nicaragua and Colombia, a land, island, and frontier dispute between El Salvador and the Honduras (Nicaragua intervening) and a 2003 case by Mexico against the United States over alleged violations of consular communications with and access to several Mexican nationals sentenced to death in various US states for crimes committed within.
A 1993 case filed by Bosnia against the former Yugoslavia for violating the Genocide Convention was still pending in 2003, as was a matter between the Republic of Congo and France over alleged crimes against humanity. Trials against individuals for alleged war crimes against humanity or genocides involving Bosnia, Croatia, Kosovo, Serbia, and the former Yugoslavia were being handled by the International Criminal Tribunal for the former Yugoslavia, a separate UN tribunal.
Kulbhushan Jadhav case
The ICJ will deliver its verdict in the Kulbhushan Jadhav case on 17 July, 6.30 pm IST. Jadhav, a 49-year-old former Naval officer, was sentenced to death by a Pakistani military court on 11 April, 2017, on charges of espionage and terrorism. Following this, India had approached the ICJ against Pakistan "for egregious violations of the Vienna Convention on Consular Relations, 1963" in the matter.
On 18 May, 2017, a 10-member bench of the ICJ restrained Pakistan from executing Jadhav till the adjudication of the case. The four-day hearing in Jadhav's case started on 18 February at the ICJ headquarters. In February this year, the ICJ rejected five pleas made by Pakistan during the hearing of Jadhav's case, including the playing of so-called "confessional statement" of the Indian national and a request to adjourn the hearing citing illness of its ad-hoc judge.
Updated Date: Jul 16, 2019 23:58:30 IST