ICJ AND The International Rule of Law – A Myth


Avinash Purohit

(Student, LL.M, South Asian University, India)

In International relations, we are often puzzled about what is the rule of law? The UN Secretary General in his 2006 report entitled “Uniting our strengths: Enhancing United Nations support for the rule of law”,classifies the rule of law related activities of the UN into three main activities: firstly rule of law at the international level; secondly rule of law in the context of conflict and post conflict situations and thirdly rule of law in the context of long term development.[1]

The first activity corresponds to the rule of law internationalized, while the second and the third activity match with the internationalization of the rule of law. As far as the first activity is concerned, the UN action does not seem to have gone much further than repeating evidences, such as the need to develop and respect international law (UN Charter, treaties, etc.) and to resort to international dispute resolution mechanisms, and to the International Court of Justice in particular.[2]

On the contrary, the second and third activities seem to receive more concrete attention at the UN, as the Secretariat is engaged in a thorough reflection on the various ways to coordinate UN actions on the field so as to promote the rule of law domestically (with a special focus on war-torn or transitional regimes[3]) through, for example, peacekeeping and peace buildingactivities and programs, reconciliation processes, the design of viable and effective judicial systems, etc.[4]

It is in this context we must analyze the functioning of the International Court of Justice in the international legal order.

INTERNATIONAL COURT OF JUSTICE (ICJ)

The present Court was established by the United Nations Charter, and came into existence with the election of the first members in February 1946. It was however created as a successor to the Permanent Court of International Justice(PCIJ), established pursuant to Article 14 of the Covenant of the League of Nations in 1921, and was modeled closely on that body.[5]

According to Article 92 of the United Nations Charter, the International Court of Justice is the ‘principal judicial organ’ of the United Nations. The objectives of the International Court of Justice are firstly, to settle international disputes or situations, which are submitted to it by the States, in accordance with the principles of justice and international law, and secondly, to render advisory opinion on legal questions to anybody which has been authorized in accordance with the Charter of the United Nations.

ACCESS TO THE COURT

Article 34 of the Statute lays down that ‘Only States may be parties in cases before the Court’. The meaning of Article 34 of the statute is that only disputes between the states shall be decided by the court. Thus disputes between a state and an individual or between a state and a community of states, especially a dispute between a state and the United Nations or disputes between international communities are excluded from the jurisdiction of the Court.[6]

JURISDICTION OF THE COURT

The Statute of the Court under Article 36 Para 1 lays down that the jurisdiction of the Court comprises all cases in which the parties refer to it. If the parties submit their dispute to the Court for a settlement the Court decides the dispute only when the dispute is a legal dispute, i.e. when the parties to the dispute base their respective claims and contentions on grounds recognized by International Law. Jurisdiction of the Court may be broadly divided into two categories, i.e. contentious, compulsory and advisory jurisdiction.

(a)    Contentious Jurisdiction: It is one of the fundamental principles of International Law that “no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any kind of pacific settlement”[7]. Consent is the basis of jurisdiction of an International Tribunal and therefore it is not possible to summon any State against its will to submit to the jurisdiction of the Court. If one State submits a case and the other State makes an objection to the jurisdiction of the Court, a dispute as to the jurisdiction of the Court is deemed to have arisen. A dispute relating to the jurisdiction is decided by the Court itself in accordance with Para 6 of Article 36 of the Statute which lays down that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

(b)    Compulsory Jurisdiction: At San Francisco Conference it was argued that the time had come when the Court should be given compulsory jurisdiction. i.e. all members of the United Nations should bind themselves in advance to the Court’s having the right to consider legal disputes between them[8]. This proposal was rejected because some of the delegates feared that such a provision might make the Statute totally unacceptable to their countries. Instead the Statute of the Court provided that that it would be optional for the States to recognize the compulsory jurisdiction of the Court.

The compulsory jurisdiction of the Court may be recognized in two ways, firstly by making declaration for the Recognition of the Jurisdiction of the Court and secondly by the declaration made under the Statute of the Permanent Court of International Justice. At present 66 States out of 193 member states of the United Nations have accepted the compulsory jurisdiction of the court. They are not much interested in accepting the compulsory jurisdiction of the court. France terminated its declaration in 1973. USA withdrew its declaration on October 8, 1985 when it lost the case against Nicaragua in the ICJ. United Kingdom is the only permanent member which has accepted the compulsory jurisdiction of the Court on July 5, 2004. India accepted the compulsory jurisdiction of the Court by making a declaration in 1974.[9]

Those states which have accepted the compulsory jurisdiction of the court have done so by inserting certain grounds of reservation. For e.g. reservation as to domestic jurisdiction is the most controversial. A few states have reserved for themselves to decide which questions are of a domestic character and which were international for the purpose of determining jurisdiction of the Court.

The number of States accepting the compulsory jurisdiction of the Court, and the reservations which the states have made at the time of making the declaration, have considerably reduced the competence of the Court to decide a number of important disputes of the states. If the jurisdiction of the Court has to be made meaningful, it is desirable that the states accept the compulsory jurisdiction of the court with minimum number of reservations.

The United Nations has been the primary exponent of a robust ICJ. In 1974, theGeneral Assembly expressed the desirability of having states submit to the compulsory jurisdiction of the ICJ[10], and of providing in treaties for the submission of future disputesto the Court.Most recently, at the 60th anniversary celebration of the ICJ in 2006, Secretary-GeneralKofi Annan made a renewed call for ‘ all states that have not yet done so to consider

recognizing the compulsory jurisdiction of the Court ’.[11]

(c)    Advisory Jurisdiction:  According to Article 65 of the Statute, the Court may give an advisory opinion on any legal question to anybodywhich has been authorized in accordance with the Charter of the United Nations or in accordance with the Statute. The Charter under Article 96, Para 1 lays down that the Security Council and the General Assembly may request to the Court to give an advisory opinion on any legal question. In addition to them, other organs of the United Nations and specialized agencies may also request for any advisory opinion on legal questions arising within the scope of their activities if so authorized by the General Assembly.[12]

Non Compliance of ICJ’s Judgment

There have been cases where parties have not complied with the judgment of the International Court of Justice.

(a)    Nicaragua v USA: The Republic of Nicaragua v United States of America was a 1984 case of the International Court of Justice (ICJ) in which the ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actual compensation. The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chammero), following a repeal of the law requiring the country to seek compensation.[13]

(b)   El Salvador v Honduras (Land, Island and Maritime Frontier Dispute): The dispute between El Salvador and Honduras, dating back to nineteenth century was relating to six pockets of land totaling about 440 sq km and a maritime boundary encompassing three islands[14]. The ICJ handed down final judgment in 1992, resulting in about two thirds of the disputed area (about 300 sq. km) being held to belong to Honduras and140 sq. km given to El Salvador. As for the maritime boundary, the judgment ensuredHonduran access to the Pacific while giving El Salvador two of the three disputed islands[15]. Both states agreed to comply with the judgment of the ICJ. But in practice the judgment was not being implemented.In November 2000, Honduras urged El Salvador to comply with the ICJ Judgment in a letter submitted to the United Nations Secretary-General for circulation as a Security Council document, 73 stating that it was implementing plans to respect the rights of nationality and ownership of Salvadorans living in Honduran territory. After over a year, Honduras followed up on January 2002 with a formal accusation of noncompliance under Article 94(2) of the Charter, asking the Council to make recommendations to induce Salvadoran obedience and, if that failed, to ‘ dictate the measures it deems appropriate in order to ensure that the judgment is executed ’.

Honduras, Nicaragua and El Salvador have accepted the judgment regarding the status of Gulf of Fonseca as a shared space. Honduras still alleges that there has been misconduct on part of El Salvador. There have been allegations of repeated failure of demarcated agreement and the continuing border problems suggest that El Salvador may not be completely fulfilling its obligations to execute the judgment reasonably and in good faith.[16]

(c)Territorial Dispute(Libya/Chad):The case arose from a longstanding territorial dispute between Libya andChad over a region covering 330,000 square miles, including the 114,000 sq. kmAouzou Strip, a resource-rich area occupied by Libya in 1973. Throughout the 1970sand 1980s, thousands died in skirmishes over the Strip[17]. The ICJ handed down judgment in February 1994, awarding the entire Aouzou strip to Chad[18]. Libya initially rejected the judgment and reportedly began reinforcing troops in the Aouzou area. But later on Libya and Chad had reached an agreement on implementation of ICJ’s order. Libya formally recognized ICJ’s order.

Despite compliance being formally achieved, reports of continued Libyan presence in the Aouzou strip have surfaced, both through Libyan nationals and Libyan supported Chad rebels[19].

Criticism of ICJ: The International Court of Justice has been subjected to numerous criticisms with respect to its rulings, its procedures and its authority. The Major criticisms are[20]:

  • “Compulsory” jurisdiction is limited to cases where both parties have agreed to submit to its decision, and, as such, instances of aggression tend to be automatically escalated to and adjudicated by the Security Council. According to the sovereignty principle of international law, no nation is superior or inferior against another. Therefore there is no entity that could force the states into practice of the law or punish the states in case any violation of international law occurs. Therefore, due to the absence of binding force, although there are 191 member states of the ICJ, the members do not necessarily have to accept the jurisdiction. Moreover, the membership of the UN and ICJ does not give the automatic jurisdiction over the member states, but it’s the consent of each state to follow the jurisdiction that matters.
  • International Organizations, private enterprises, and individuals cannot have their cases taken to the International Court, such as to appeal a national supreme court’s ruling. U.N. agencies likewise cannot bring up a case except in advisory opinions (a process initiated by the court and non-binding). Only the states can bring the cases and become the defendants of the cases. This also means that the potential victims of crimes against humanity, such as minor ethnic groups or indigenous peoples.
  • Other existing international thematic courts, such as the International Criminal Court (ICC), are not under the umbrella of the International Court. Unlike ICJ, international thematic courts like ICC work independently from United Nations. Such dualistic structure between various international courts sometimes makes it hard for the courts to engage in effective and collective jurisdiction.
  • The International Court does not enjoy a full separation of powers, with permanent members of the Security Council being able to veto enforcement of even cases to which they consented in advance to be bound. Because the jurisdiction does not have binding force itself, in many cases the instances of aggression are adjudicated by Security Council by adopting a resolution, etc.Therefore it is very likely for the member states of Security Council to avoid the responsibility brought up by International Court of Justice, as shown in the example of Nicaragua v. United States.

Assessment of ICJ’s working:

The Court was established to achieve one of the purposes of the United Nations, i.e. to adjust or settle international disputes or situations which might lead to a breach of peace.[21] A question arises as to how far the Court has been successful in achieving the object? In the 1960s and 1970s, fewer and fewer states were inclined to bring their disputes before it.[22] For a brief period, the Court had no cases whatever on its list. Slowly the situation improved, particularly as a result of the increasing need for impartial settlement of seabed delimitation disputes.

Today, the Court is busier than it has been earlier. In the last22 years of its activities, since 1990, the Court has rendered more judgments than during the first44 years of its existence; 60 as compared to 52. Just this year, in addition to one advisory opinion,the Court has rendered three judgments and has advanced its work on the fourth one, and isplanning to hold hearings in two further important cases, one concerning a boundary dispute

between two African States and the other one regarding a maritime dispute involving two countries from Latin America.[23]

The ICJ has also contributed to the development of international law. It has dealt with major questions in conformity with international law and made pronouncements thereupon. For instance, it has delivered judgments on disputes concerning land frontiers and maritime boundaries, territorial sovereignty, diplomatic relations, the right of asylum and nationality.[24] But systematic reforms are needed to make the ICJ, the judicial institution responding to the needs of the twenty-first century.


[1]UN Secretary-General, Uniting our strengths: Enhancing United Nations support for the rule of law, Report to the General Assembly and the Security Council, 14 December 2006, par. 40-42, p. 13.

[2] See UN Secretary-General, Uniting our Strengths, op. cit., par. 41, p. 13; Resolution of the UN General Assembly of 4 December 2006, UN Doc. A/res/61/39; and Resolution of the UN General Assembly of 6 December 2007, UN Doc. A/res/62/70.

[3]See UN Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, op. cit.

[4]See UN Secretary-General, Uniting our strengths, op. cit., par. 41-42, p. 13.

[5] Thirlway Hugh, International Law edited by Malcolm D.Evans, 3rd edition2010 p 587 Oxford University Press

[6]Agarwal H.O International Law and Human Rights, 18th edition 2011, p 496 Central Law Publications

[7] In the Legality of Use of Force(Yugoslavia and Belgium), Judge Oda stated that ‘the consent of each state to accept such an obligation was deemed to be absolutely necessary’ (Judgement was delivered by the ICJ on June 2, 1999)

[8]Agarwal H.O International Law and Human Rights, 18th edition 2011, p 498, Central Law Publications

[9] Earlier, (British) India had submitted its declaration in 1940 accepting the compulsory jurisdiction of the PCIJ with some reservations. India after its independence revised its declaration in 1956. In 1959, it further revised the declaration which has been revoked by the declaration of 1974.

[10]UN Res No. 3232, R eview of the Role of the International Court of Justice, 12 Nov. 1974, UN Doc. A/

RES/3232 (XXIX). Para. 1 states: ‘ The General Assembly … (1) Recognizes the desirability that States

study the possibility of accepting, with as few reservations as possible, the compulsory jurisdiction of the

International Court of Justice in accordance with Article 36 of its Statute; … ’

[11]‘ On 60 th Anniversary of World Court, Secretary-General Calls on Governments to Consider Recognizing

Court’s Compulsory Jurisdiction ’ ,UN Doc No. SG/SM/10414, 12 Apr. 2006.

[12] Agarwal H.O International Law and Human Rights, 18th edition 2011, p 503, Central Law Publications

[13] http;//www.wikipedia.org/Nicaragua v USA (last visited on 5/11/2012)

[14] Llamzon P.Aloysius, The European Journal of International Law, p 826, Vol.18.no 5 2008

[15]L and, Island, and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 351

[16] Llamzon P.Aloysius, The European Journal of International Law, p 828, Vol.18.no 5 2008

[17] Llamzon P.Aloysius, The European Journal of International Law, p 829, Vol.18.no 5 2008

[18]Territorial Dispute (Libya/Chad) [1994] ICJ Rep 6, at 40.

[19].Llamzon P.Aloysius, The European Journal of International Law, p 832, Vol.18.no 5 2008

[20]http://www.wikipedia.org/International_ Court _of_ Justice(last visited on 05/11/2012)

[21] Agarwal H.O International Law and Human Rights, 18th edition 2011, p 511, Central Law Publications

[22] Thirlway Hugh, International Law edited by Malcolm D.Evans, 3rd edition 2010 p 611 Oxford University Press

[23]Statement by H.E Judge Peter Tomka, President of the International Court of Justice at the High-level meeting on the Rule of Law, 24 September 2012.

[24] Agarwal H.O International Law and Human Rights, 18th edition 2011, p 513, Central Law Publications

N.B: The write up has already been submitted as term paper.

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